Mohammed @ Kunhani and others v. Mohammed @ Manu and Unnialu and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN WEDNESDAY, THE 11TH DAY OF APRIL 2012/22ND CHAITHRA 1934 OP(C).No. 1292 of 2010 (O) -------------------------OS.90/1998 OF SUB COURT, OTTAPPALAM ## PETITIONER(S)/PETITIONERS: -------------------------------------- 1. MOHAMMED @ KUNHANI, S/O.PARAKKOTTIL MAMMATH @ MANU, RESIDING AT EDATHANATTUKARA AMSOM DESOM, MANNARGHAT TALUK PALAKKAD DISTRICT. 2. RAMLA, D/O.LATE SAINABA, RESIDING AT MUNDUCHERIYIL EDATHANATTUKARA AMSOM DESOM, MANNARGHAT TALUK PALAKKAD DISTRICT. 3. SAITHALI, S/O.DO IN DO DO 4. LAILA, D/O.DO IN DO DO 5. KAMARA, D/O. DO IN DO DO BY ADVS.SRI.P.B.KRISHNAN SMT.GEETHA P.MENON SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN RESPONDENT(S): ---------------------- 1. MOHAMMED @ MANU, RESIDING AT EDATHANATTUKARA AMSOM AND DESOM MANNARGHAT TALUK PALAKKAD DISTRICT-678582. 2. UNNIALU,, S/O.UNNIAN KUTTY, RESIDING IN DO DO DO, PIN 678582. BY ADV. SRI.T.SETHUMADHAVAN BY ADV. SRI.PUSHPARAJAN KODOTH BY ADV. SRI.K.JAYESH MOHANKUMAR BY ADV. SMT.VANDANA MENON BY ADV. SMT.ANJU P.NAIR THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 11-04-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## O.P.(C) NO.1292/2010 ## APPENDIX ## PETITIONERS' DOCUMENTS : EXT.P1: DATED 15.2.1985, TRUE COPY OF THE JUDGMENT IN O.S.NO.28 OF 1984, MUNSIFF-MAGISTRATE'S COURT, MANNARGHAT. - EXT.P2: DATED 9.11.1998, TRUE COPY OF COMMISSION REPORT IN C.M.A.NO.53 OF 1998 ON THE FILE OF THE DISTRICT COURT, PALAKKAD. - EXT.P3: DATED 4.3.2008, TRUE COPY OF COMMISSION REPORT FILED IN I.A.NO.476 OF 2008 IN O.S.90 OF 1998 ON THE FILE OF THE SUB COURT, OTTAPPALAM. - EXT.P4: DATED 31.3.2008, TRUE COPY OF JUDGMENT IN O.S.90 OF 1998, SUB COURT, OTTAPPALAM. - EXT.P5: DATED 3.3.2010, TRUE COPY OF THE JUDGMENT IN A.S.172/2008, DISTRICT COURT, PALAKKAD. - EXT.P6: DATED 26.7.2010, TRUE COPY OF THE COMMISSION REPORT IN O.S.NO.90 OF 1998, SUB COURT, OTTAPPALAM. - EXT.P7: DATED 14.9.2010, TRUE COPY OF THE OBJECTION TO THE COMMISSION REPORT IN O.S.NO.90 OF 1998 FILED BY PETITIONER NO.1. EXT.P8 : DATED 4.10.2010, TRUE COPY OF THE FINDING IN ISSUE NO.1 IN O.S.NO.90 OF 1998, SUB COURT, OTTAPPALAM. ## RESPONDENTS' EXHIBITS : NIL //TRUE COPY// P.A. TO JUDGE ## **K.T.SANKARAN, J.** ----------------------------------- ## O.P.(Civil) No.1292 of 2010 ------------------------------------ Dated this the 11[th] day of April, 2012 ## _**JUDGMENT**_ The defendants in O.S.No.90 of 1998, on the file of the court of the Subordinate Judge of Ottappalam, are aggrieved by the finding dated 4[th] October, 2010 on issue No.1 in the suit. As per the order impugned, the court below found that the valuation in the plaint and the court fee paid thereon are correct. 2. In O.S.No.90 of 1998 filed by the respondents, the reliefs prayed for are the following : - “(a) Cancelling the decrees in O.S.28/84, Munsiff Court, Mannarghat, A.S.50/85, Sub Court, Ottappalam and S.A.705/1988, as secured by the defendants herein (as plaintiffs therein) by fraud and misrepresentation for facts and law : - (b) declaring that the plaintiffs hold title to the property as explained in paragraph 6 of the plaint O.P.(C) No.1292/2010 2 and may be declared as owners of the plaint schedule property and directing the restoration/recovery of possession on the strength of their title and ownership amended as per order in I.A.60/99 dated 9.2.1999. - (c) directing the defendants to pay the costs of the plaintiff and - (d) granting such other and further reliefs the plaintiff may seek and the Hon'ble court may deem it fit to allow to render justice.” 3. The valuation portion of the plaint reads as follows : ## for the purposes of court fee, relief and jurisdiction |For prayer 'A'. Being the valuation|:|` 5,000.00| |---|---|---| |in the decree sought to be cancelled.||| |For prayer 'B'. Market value of the|:|`1,05,000.00| |property at ` 35,000/- an acre||| |3 x ` 35,000/-||--------------------| |Total valuation|:|`1,10,000.00| |||---------------------| |C.F.payable under Sections 22, 25 &|:|` 6,550.00| |40 of the K.C.F. & S.V. Act||| |C.F. paid u/s 4A of the KCF & SV Act|:|` 655.00| |Balance payable at call.|:|` 5,895.00| O.P.(C) No.1292/2010 3 4. Relief (b) was substituted as shown above. However, no amendment was made in respect of the valuation and court fee. 5. O.S.No.28 of 1984 on the file of the court of the Munsiff Magistrate of Mannarghat (hereinafter referred to as the former suit) was filed by defendants 1 and 2 in O.S.No.90 of 1998 Sub Court, Ottappalam (hereinafter referred to as the subsequent suit). The former suit was filed for recovery of possession on the basis of title. That suit was decreed by the trial court and it was confirmed in Appeal and Second Appeal. It is stated that on 19.2.1988, delivery of the property was effected in execution of the decree in the former suit. 6. In the subsequent suit, namely, O.S.No.90 of 1998 relief (a) is to cancel the decree in the former suit. Relief (b) is for declaration of title and recovery of possession. Therefore, for relief (a), valuation has to be made and court fee has to be paid under Section 40 of the Kerala Court Fees and Suits Valuation Act (hereinafter referred to as the Court Fees Act). For relief (b) O.P.(C) No.1292/2010 4 valuation has to be made and court fee has to be paid under Section 25(a) read with Section 7(2) of the Court Fees Act. 7. The question of valuation and court fee in the present suit was the subject matter of several proceedings for the last more than 13 years. The issue of valuation and court fee was tried as a preliminary issue and the trial court passed Exhibit P4 judgment dated 31[st] March, 2008. The trial court found that “the plaint schedule property is worth ` 3,000/- per cent (` 9,00,000/for 3 Acres) and it has to be valued accordingly in the plaint for payment of court fee for the reliefs sought”. The plaintiffs were therefore directed to amend the valuation and pay court fee accordingly. 8. The judgment dated 31[st] March, 2008 was challenged in appeal by the plaintiffs as A.S.No.172 of 2008 before the court of the District Judge of Palakkad. The learned District Judge set aside the judgment and decree of the trial court and remanded the case to the trial court for fresh disposal, as per Exhibit P5 judgment dated 3[rd] March, 2010. The appellate court held that O.P.(C) No.1292/2010 5 the market value of the property at the time of filing the suit was relevant and it was not properly assessed by the Commissioner in Exhibit C1 report. The appellate court held thus : “Therefore the way open to me is to set aside the Commissioner's report and direct the court below to depute the same Commissioner or another Commissioner to ascertain the market value of the property as on the date of filing the suit. For that purpose, a remand of the case to the lower court has become inevitable and as such the judgment and decree under appeal are to be set aside. Only after getting correct report, it could be found whether the valuation is correct and the court fee paid is proper etc. Therefore, the judgment under appeal is not sustainable and the matter is to be remanded. In the result, the judgment and decree under appeal are set aside and the suit is remanded to the lower court for fresh disposal according to law. The learned Sub Judge shall remit Ext.C1 Commission report to the very same Commissioner or appoint another Commissioner to ascertain the market value of O.P.(C) No.1292/2010 6 the property as on the date of suit for the purpose of determining the valuation of the suit and the sufficiency of the court fee paid.” 9. After remand, the trial court passed Exhibit P8 order dated 4[th] October, 2010 holding that the valuation and court fee are correct. The trial court relied on the judgment of the Supreme Court in Satheedevi vs. Prasanna (2010(2) KLT 642(SC)). 10. As stated above, relief (a) is to be valued under Section 40 of the Court Fees Act. The question whether the market value of the property or whether the value as shown in the document sought to be cancelled is relevant criterion for valuation and Court Fee under Section 40 of the Court Fees Act was considered by the Supreme Court in Satheedevi vs. Prasanna (2010 (2) KLT 642 (SC)) and it was held thus : “11. ......................S.40 deals with suits for cancellation of decrees etc. which are not covered by other sections. If this section is interpreted in the light of the expression 'save as otherwise provided' used in S.7(1), it becomes clear that the rule enshrined therein is a clear departure from the one contained in S.7 read with Ss.25, O.P.(C) No.1292/2010 7 27, 29, 30, 37, 38, 45 and 48 which provide for payment of court fee on the market value of the property. In that sense, S.40 contains a special rule.................................................. The deeming clause contained in the substantive part of S.40(1) makes it clear that in a suit filed for cancellation of a document which creates any right, title or interest in immovable property, the court fees is required to be computed on the value of the property for which the document was executed. To put it differently, the value of the property for which the document was executed and not its market value is relevant for the purpose of court fee. If the expression 'value of the subject matter of the suit' was not followed by the deeming clause, it could possibly be argued that the word 'value' means the market value, but by employing the deeming clause, the legislature has made it clear that if the document is sought to be cancelled, the amount of court fee shall be computed on the value of the property for which the document was executed and not the market value of the property. The words “for which” appearing between the words “property” and “other documents” clearly indicate that the court fee is required to be paid on the value of the property mentioned in the document, which is subject matter of challenge. 13. If the interpretation placed by the trial Court and the High Court on the expression “value of the property for which the document was executed” is accepted as correct then the word 'value' used in S.40(1) of the Act will have to be read as 'market value' and we do not see any compelling O.P.(C) No.1292/2010 8 reason to add the word 'market' before the word 'value' in S.40(1) of the Act.” 11. The decision in Satheedevi vs. Prasanna (2010 (2) KLT 642 (SC)) is applicable in the case of a suit for cancellation of decree also since Section 40 deals with suit for cancellation of decree for money or other property having a money value as well as documents. In the former suit (O.S.No.28 of 1984), the valuation was made at ` 5,000/-. Therefore, for relief (a) in the present suit, the valuation shown at ` 5,000/- is correct. 12. For relief No.(b), the plaintiffs have shown Sections 22 and 25 of the Court Fees Act in the valuation portion of the plaint. Moreover, the market value of the property was estimated at ` 35,000/- per acre and the value of the plaint schedule property was estimated at ` 1,05,000/-. This is not a correct procedure to be followed in the case. The valuation for relief (b) should be under Section 25(a) read with Section 7(2) of the Court Fees Act. There is no dispute that the property is an agricultural land therefore, there cannot be any dispute that Section 7(2) will O.P.(C) No.1292/2010 9 apply. If so, the market value of the property shall be deemed to be ten times the annual gross profits of such land where it is capable of yielding annual profits, minus the assessment if any made to the Government. The valuation for relief (b) was not correctly made in the plaint. The court below failed to notice that aspect of the matter. In the judgments dated 31[st] March, 2008 and 3[rd] March 2010 respectively, the trial court as well as the appellate court did not advert to the fact that the market value was not properly estimated in the plaint. However, in those judgments, the courts below directed the market value of the property to be assessed. No specific direction was given by the appellate court as to how the market value should be assessed. In other words, the appellate court did not direct the market value to be assessed as provided under Section 7(2) of the Court Fees Act. 13. The learned counsel appearing for the respondents submitted that the latest Commissioner's report would indicate that the value of the property per cent would be ` 400/- at the time of filing the suit. It is submitted that the Commissioner's O.P.(C) No.1292/2010 10 report would also indicate that several improvements were made after the filing of the suit and therefore, it was not possible to assess the annual income of the property at the relevant time. Since there are inherent defects in the plaint in respect of valuation for relief (b) and since the court below did not advert to that aspect, I am of the view that the order is liable to be set aside. Accordingly, the Original Petition is allowed. The order passed by the court below is set aside and the matter is remitted to the court below for fresh disposal in the light of the findings and observations made above. The plaintiffs shall, if so advised, amend the valuation portion of the plaint with respect to relief (b). The court below shall consider the matter afresh, after affording an opportunity of being heard to all the parties. **K.T.SANKARAN** **JUDGE** csl