St. Antony's Church, Vaduthala v. Paul @ Ouseph

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **FRIDAY, THE 3RD DAY OF AUGUST 2018 / 12TH SRAVANA, 1940** **OP(C).No. 2397 of 2012** **----------------------** **O.S.544/2011 OF 2ND ADDITIONAL MUNSIFF, ERNAKULAM. ........** ## **PETITIONER(S):** **-------------** **1. ST. ATNONY'S CHURCH, VADUTHALA, REPRESENTED BY FR.ALOYSIUS THAIPARAMBIL, S/O.LATE XAVIER, PRESENT VICAR, ST.ANTONY'S CHURCH, CHERANALLUR VILLAGE, KANAYANNUR TALUK, VADUTHALA, KOCHI-682023.** **2. P.J. JOSEPH, AGED 60 YEARS, S/O.JOSEPH, PAYYAPPILLY HOUSE, CHERANALLUR VILLAGE, KANAYANNUR TALUK, VADUTHALA, KOCHI-682023.** **3. FRANCIS XAVIER K.S., AGED 69 YEARS, S/O.SEBASTIAN, KURISINKAL HOUSE, CHERANALLUR VILLAGE, KANAYANNUR TALUK, VADUTHALA, KOCHI-682023.** **BY ADVS.SRI.P.A.HARISH SRI.L.ALOYSIUS THOMAS SRI.K.A.SHAJI MATHEW** **RESPONDENT:** **-----------** **PAUL @ OUSO PAUL, S/O.OUSEPH, POZHAMANGALATH HOUSE, VADUTHALA P.O., KOCHI-682023.** **BY ADV. SRI.K.R.VINOD** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 03-08-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: mbr/** ## **OP(C).No. 2397 of 2012 ----------------------** ## **APPENDIX** ## **PETITIONERS' EXHIBITS: ----------------------** |**EXT. P1 :**|**TRUE COPY OF THE PLAINT IN O.S.544/11 FILED BY THE**| |---|---| ||**PETITIONER BEFORE THE HONOURABLE 2ND ADDITIONAL**| ||**MUNSIFF, ERNAKULAM.**| |**EXT. P2 :**|**TRUE COPY OF THE PLAINT IN O.S.504/10 FILED BY THE**| ||**RESPONDENT.**| |**EXT. P3 :**|**TRUE COPY OF THE REPORT SUBMITTED BY THE ADVOCATE**| ||**COMMISSIONER IN O.S.504/10.**| |**EXT. P4 :**|**TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE**| ||**RESPONDENT IN OS.544/11.**| |**EXT. P5 :**|**TRUE COPY OF THE ORDER OF THE LEARNED MUNSIFF**| ||**DATED 26.6.2012.**| |**EXT. P6 :**|**TRUE COPY OF THE DOCUMENT NO.1391/1957 OF SRO**| ||**ERNAKULAM.**| |**RESPONDENTS' EXHIBITS:**<br>**NIL**|| |**----------------------**|| **/TRUE COPY/** **P.S.TO JUDGE** **mbr/ 10.08.2018.** ## **A.M. SHAFFIQUE, J.** ------------------------------------------O.P.(C)No.2397 of 2012 ---------------------------------------------Dated this the 3[rd] day of August, 2018 ## **JUDGMENT** The petitioner had approached this Court challenging Ext.P5 order dated 26.6.2012 in O.S.No.544/2011 of II Additionial Munsiff Court, Ernakulam, wherein a preliminary issue relating to the valuation of the suit and the court fee payable to has been decided. 2. The petitioner had preferred a suit for declaration of title that the plaint 'B' schedule property belongs to the plaintiff Church and for recovery of possession. For the relief of declaration of title, the plaintiff had valued the suit under Section 25(a) of the Kerala Court Fees and Suits Valuation Act,1959 (hereinafter referred to as the 'Act') and for recovery of possession, valued the suit under Section 30 of the Act. For declaration of title, the suit is valued at Rs.1,000/- and for recovery of possession, the suit is valued at Rs.1,000/-. The respondent/defendant raised an objection regarding valuation of the property for the purpose of payment of court fee. The issue was taken up as a preliminary issue and the court below found that valuation was not correct and accordingly, directed payment O.P.(C)No.2397/2012 2 of court fee based on the fair value fixed by the Government in respect of the property, which would come to Rs.10 lakhs and the petitioner was directed to pay the requisite court fee. 3. The learned counsel for the petitioner placed reliance on two decisions of this Court in _**Beena Roy**_ v. _**Abdul Rahim**_ [ 2012 (4) KLT 207] and _**Narayanan Nair**_ v. _**Lokeshan Nair**_ [2014 (2) KLT 868]. The learned counsel relied upon the _**Beena Roy's** case (supra)_ to contend that the fair value fixed under Section 45B of the Kerala Stamp Act has no relevance to determine the market value for the purpose of the valuation of the suit and _**Narayanan Nair's** case (supra)_ relied upon to contend that mere presence of a residential house in an agricultural land would not make it a non-agricultural land. The predominant purpose for which the land is used is to be taken into consideration to ascertain whether the land in question is an agricultural land or not. The learned counsel also argued that, when viewed in the light of Section 7 of the Act, such properties can be treated only as an agricultural land. The Advocate Commissioner's Report indicates that there are some trees in the property. Insofar as they are not yielding trees, the minimum valuation had been opted by the petitioner. O.P.(C)No.2397/2012 3 4. On the other hand, the learned counsel for the respondent submits that the property is situated within the Corporation area at Vaduthala and the fair value of the property itself comes to Rs.10 lakhs. The property is not an agricultural property and there is no mention in the plaint that the market value had been fixed in terms of Section 7 (2) of the Act. In the absence of any such statement in the valuation portion or pleading, no such contention can be taken. It is submitted that, in the absence of any other evidence, the court below had taken the fair value as a reasonable one to fix the market value. 5. Having heard the learned counsel on either side, the short question to be considered is whether the court below was justified in directing the market value to be taken as fixed under the fair value register. 6. Section 7 of the Act reads as under: “ **7. Determination of market value** .- (1) Save as otherwise provided, where the fee payable under this Act depends on the market value of any property, such value shall be determined as on the date of presentation of the plaint. (2) The market value of agricultural land in suits falling under Section 25(a), 25(b), 27(a), 29, 30, 37(1), 37(3), 38, 45 or 48 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. (3) The market value of a building shall in cases where its rental value has been entered in the registers of O.P.(C)No.2397/2012 4 any local authority, be ten times such rental value and in other cases the actual market value of the building as on the date of the plaint. (3A) The market value of any property other than agricultural land and building falling under sub-sections (2) and (3) shall be the value it will fetch on the date of institution of the suit. (4) Where the subject-matter of the suit is only a restricted or fractional interest in a property, the market value of the property shall be deemed to be the value of the restricted or fractional interest and the value of the restricted or fractional interest shall bear the same proportion to the market value of the absolute interest in such property as the net income derived by the owner of the restricted or fractional interest bears to the total net income from the property.” 7. In the light of Section 7, there cannot be any dispute about the manner in which the market value of the agricultural land, market value of the building and market value of the property other than the agricultural land and the building has to be fixed. The petitioner does not have a case that the valuation had been done in terms of Section 7(2) of the Act, in which event the annual gross profit of such land has to be taken where it is capable of yielding annual profits minus the assessment if any made to the Government. No such valuation seems to be shown either in the plaint or in the valuation portion. Instead of it, the petitioner had only stated that the declaratory prayer is valued at Rs.1000/-. Section 25 of the Act relates to declaration. In a suit for a declaration of decree, if the prayer is for a declaration and O.P.(C)No.2397/2012 5 for possession of the property to which the declaration relates, fee shall be computed on the market value of the property or on Rs.1000/- whichever is higher. Therefore, primarily in the suit, the plaintiff will have to show what is the market value of the property. The plaintiff will have to further indicate as to how the market value has been computed. It should be under any of Sections 7(2), 7(3) or 7(3A). In the case on hand, there is no indication as to how the plaintiff had valued the suit. They had only taken the minimum value as fixed under Section 25(a) of the Act, which does not disclose the nature of property. 8. Now coming to the impugned order, of course, the fair value may not be the actual market value as in terms of Section 7(2), 7(3) or 7(3A) of the Act. But, it is for the plaintiff to produce adequate materials before the court and convince the court regarding the market value. In the absence of any such materials, the court below had relied upon the fair value of the property, taking into consideration that the property comes under Section 7(3A) of the Act. 9. If the petitioner has a case that the market value of the property under Section 7(3A) as fixed by the court below is on the higher side, definitely it shall be open for the petitioner to O.P.(C)No.2397/2012 6 place necessary materials before this Court. In this case, no such materials are produced. Therefore, I do not find any error on the part of the court below to have taken into consideration the fair value appearing in the Fair Value Register as market value. However, taking into account the judgment of this Court in _**Beena Roy's** case (supra)_ , it is only appropriate that the matter is remitted back to the Court below, so that the petitioner is given an opportunity to produce necessary evidence to prove the market value of the land as coming under Section 7(3A) of the Act. Accordingly, this Original Petition (Civil) is disposed of as under: The impugned order, Ext.P5 is set aside. The petitioner shall be given an opportunity to prove the market value of the land in terms of Section 7(3A) of the Act, in which event, necessary orders shall be passed by court below in accordance with the procedure prescribed. sd/- **A.M. SHAFFIQUE, JUDGE.** acd