Unnikrishnan Nair v. Radhamma and Sandhadevi Amma

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH TUESDAY, THE 27TH DAY OF NOVEMBER 2012/6TH AGRAHAYANA 1934 OP(C).No. 2624 of 2012 (O) -------------------------OS.836/2004 of ADDITIONAL MUNSIFF COURT, KOLLAM PETITIONER(S): ------------- UNNIKRISHNAN NAIR, 69 YEARS OF AGE, SON OF CHELLAPPAN PILLAI, RESIDING AT SREERAMAPURATHU VEEDU KANJIRAKODE CHERRY, MULAVANA VILLAGE KOLLAM DISTRICT BY ADVS.SRI.M.GOPIKRISHNAN NAMBIAR SRI.P.GOPINATH MENON SRI.BENNY P. THOMAS SRI.JOHN MATHAI K. SRI.JOSON MANAVALAN RESPONDENT(S): -------------- 1. RADHAMMA D/O GOURI AMMA, AJITH BHAVANAM, KANNANKODE WARD ADOOR VILLAGE, ADOOR P.O FROM SREERAMAPURATHU VEEDU, KANJIRAKODE CHERRY MULAVANA VILLAGE, KOLLAM 691503 2. SANDHADEVI AMMA, D/O GOURI AMMA, VADAKOTHU PUTHEN VEEDU NETTAYAM CHERRY, ELAMADU VILLAGE, KOTTARAKKARA FROM SREERAMAPURATHU VEEDU, KANJIRAKODE CHERRY MULAVANA VILLAGE, KOLLAM 691503 ADV. SRI.K.JAGADEESCHANDRAN NAIR - FOR R1 & R2 ADV. SRI.JAISHANKAR V.NAIR - FOR R1 & R2 THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 27-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C) NO.2624/2012 APPENDIX PETITIONER(S) EXHIBITS EXT. P1 TRUE COPY OF THE PLAINT DATED 16-10-2004 IN O.S NO 836 OF 2004 ON THE FILE OF THE COURT OF THE ADDITIONAL MUNSIFF KOLLAM EXT. P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANT IN O.S NO 836 OF 2004 ON THE FILE OF THE COURT OF THE ADDITIONAL MUNSIFF, KOLLAM DATED 10-11-2004 EXT. P3 TRUE COPY OF THE ORDER DATED 19-12-2008 IN IA NO 4532/2008 IN O.S NO 836 OF 2004 ON THE FILE OF THE COURT OF THE ADDITIONAL MUNSIFF, KOLLAM EXT. P4 TRUE COPY OF THE JUDGMENT IN O.S NO 836 OF 2004 ON THE FILE OF THE COURT OF THE ADDITIONAL MUNSIFF, KOLLAM DATED 19-2-2009 EXT. P5 TRUE COPY OF THE JUDGMENT DATED 14-12-2011 IN FAO NO 92/2011 OF THIS COURT EXT. P6 TRUE COPY OF THE ORDER DATED 14-06-2012 IN O.S NO 36/2004 ON THE FILE OF TE COURT OF THE ADDITIONAL MUNSIFF KOLLAM ## RESPONDENTS' EXHIBITS: EXT.R1(a) TRUE COPY FO THE IA NO.3988/2012 OF THE ADDL.MUNSIFF'S COURT, KOLLAM DATED 9.10.2012 EXT.R1(b) TRUE COPY OF THE IA NO.3987/2012 OF THE ADDL.MUNSIFF'S COURT, KOLLAM DATED 9.10.2012 //TRUE COPY// ## **THOMAS P. JOSEPH, J.** **-------------------------------------O.P.(C). No.2624 of 2012 -------------------------------------Dated this the 27[th] day of November, 2012.** ## **JUDGMENT** The defendant in O.S.No.836 of 2004 of the Additional Munsiff's Court, Kollam is aggrieved by Ext.P6, order as regards payment of court fee for relief (b) in the plaint and has filed this original petition under Article 227 of the Constitution. 2. On the question of court fee, the litigation has been turning around for the last eight years in various courts. The respondents/plaintiffs, as Ext.P1, the amended plaint prayed for the following reliefs: (a) Cancelling or setting aside document No.3097 of 1981 of the SRO, Kundara purported to be executed by Gouri Amma in favour of the petitioner with regard to the plaint C and D schedule properties, (b) Declare the title and possession of the respondents over the plaint A and B schedules and that the decree in O.S.No.397 of 1981 is not binding on the respondents or the plaint schedule items, (c) Restraining the petitioner and his men from trespassing into the suit property and committing waste, 2 OP(C) No.2624/2012 (c.a) Alternatively if it is found that the suit property or any portion is in the possession of the petitioner, allowing recovery of possession of the same. (d) Allowing the respondents to realise the cost of the suit from the petitioner and charged on his assets. 3. The petitioner filed written statement contending, inter alia that court fee paid is not correct. The petitioner filed I.A.No.4532 of 2008 in the trial court. On that application, the trial court passed Ext.P3, order directing the respondents to amend the plaint and valuation and pay the deficit court fee. The respondents did not comply with the said order and consequently the plaint was rejected on 19.12.2008. The respondents challenged rejection of the plaint in A.S.No.354 of 2009. By judgment dated 14.01.2011, order rejecting the plaint was set aside in view of the decision in Satheedevi v. Prasanna (2010 (2) KLT 642). 4. The petitioner filed F.A.O.No.92 of 2011 challenging the judgment in A.S.No.354 of 2009. This Court disposed of the appeal by judgment dated 14.12 **.** 2011 (Ext.P5). This Court directed that the trial court is to consider whether the suit property is agricultural land or garden land and based on that, decide the question of sufficiency of court fee. Pursuant to Ext.P5, judgment the trial court passed Ext.P6, order. 3 OP(C) No.2624/2012 5. In Ext.P6, order, the trial court has found that court fee paid for relief (b) (above stated) is proper and decided the question in favour of the respondents. Ext.P6, order is under challenge. 6. It is contended by the learned counsel for the petitioner that so far as relief (b) in the plaint is concerned (declaration of title and possession over the plaint A and B schedules and that the decree in O.S.No.397 of 1981 is not binding on the respondents and the suit property), finding of the trial court is not correct. According to the learned counsel, even in the plaint what is stated with respect to the plaint A to D schedules is that it is garden land and hence it cannot be treated as agricultural land falling under Sec.7(2) of the Kerala Court Fees and Suits Valuation Act, 1959 (for short, “the Act”). The learned counsel submits that the suit property comes within the mischief of Sec.7(3A) of the Act and hence court fee is payable based on the estimated market value of the property which shall not be less than the minimum value of such land fixed by the District Collector under Sec.28A of the Kerala Stamp Act, 1959. The learned counsel has also placed reliance on the decision in **Sreekumara Samajam v. Thilakan (2011 (4) KLT 452)** to contend that relief (b) is not an ancillary relief. 7. The learned senior counsel for the respondents has contended that relief (b) is ancillary to relief (a) and has placed reliance on the decision in **Appukuttan v. Kamalakshi (1996 (2) KLT 977)** . It is also contended that if at 4 OP(C) No.2624/2012 all the respondents were liable to pay court fee for relief (b), it is properly valued and paid. According to the learned senior counsel, the suit property cannot be treated as non-agricultural land falling under Sec.7(3A) of the Act. 8. It is necessary to refer to the case of the parties to understand the rival contentions. According to the respondents, the plaint C and D schedules form part of the plaint A and B schedules, respectively. Concerning the plaint A and B schedule (including the plaint C and D schedules) the respondents claimed title and possession as per document No.4523 of 1961 executed by Gouri Amma. She reserved a life interest for herself in that settlement deed. Later, in derogation of the title conveyed to the respondents as per settlement deed No.4523 of 1961 the said Gouri Amma is said to have executed sale deed No.3097 of 1981 in favour of the petitioner concerning the plaint C and D schedules. Obviously based on that document, petitioner filed O.S.No.397 of 1981 against a third party and in that case, it is alleged that title of the petitioner over plaint C and D schedules based on sale deed No.3097 of 1981 was found. It is in the above circumstances that the respondents sought for cancellation of document No.3097 of 1981, a declaration of their own title over the plaint A and B schedules (including the plaint C and D schedules as per document No.4523 of 1961) and a further declaration that the decree in O.S.No.397 of 1981 is not binding on them or the suit property. 5 OP(C) No.2624/2012 9. In fact, when the respondents sought a declaration of their title as per document No.4523 of 1961 it was unnecessary to seek cancellation of document No.3097 of 1981 or a declaration that the decree in O.S.No.397 of 1981 is not binding on the respondents. The reason is that as per the version of the respondents, they got title and possession of the suit properties as per document No.4523 of 1961 subject to the life interest of the Gouri Amma. If that be so, Gouri Amma was incompetent to assign any right, title and interest on the suit property as per document No.3097 of 1981 in which case, document No.3097 of 1981 would not bind the respondents. So also, so far as the respondents are not parties in O.S.No.397 of 1981 and that being a suit filed by the petitioner against a third party, a declaration that the said decree is not binding on the respondents or the suit property was unnecessary. In the circumstances it is possible to treat relief (b) as consequential to relief (a). 10. The trial court has taken the view that relief (b) can be taken as consequential to relief (a). That view also cannot be said to be faulty for the reason that once document No.3097 of 1981 is cancelled or set aside on the grounds pleaded by the respondents, the cloud over settlement deed No.4523 of 1961 in favour of the respondents and executed by Gouri Amma is removed and their title stands. Therefore, it is possible to say that relief (b) is consequential to relief (a) in which case it was not even necessary that with respect to relief (b) the respondents should have paid separate court fee. 6 OP(C) No.2624/2012 11. Even if it is assumed that as the respondents have done they are liable to pay separate court fee for relief (b), then the question is whether market value has to be assessed for the suit properties under Sec.7(2) or 7 (3A) of the Act? 12. Sec.7(2) of the Act deals with agricultural land falling under the Sections referred to therein (which includes Sec.25 (b) of the Act). Sub-sec.(3) deals with market value of building. Sub-sec.(3A) deals with market value of any property other than agricultural land (falling under Sub-sec.(2)) and building (falling under Sub-sec.(3)). Therefore to fall within Sec.7(3A) of the Act, the property must not be agricultural land falling under Sub-sec.(2) of Sec.7 of the Act. 13. So far as assessment of court fee is concerned, primarily it must depend on the averments in the plaint. That is because payment of court fee is primarily between plaintiff and the State unless it involves jurisdiction of the court concerned. 14. In the plaint A and B schedules, the extent of property is described as 1.53 acres each together with improvements and yield therefrom. In the plaint A schedule there is also a house and well. In the plaint schedule there is no mention of any house. Plaint C and D schedules are part of plaint A and B schedules. 7 OP(C) No.2624/2012 15. True that at one portion of the plaint it is stated that plaint A and B schedules are garden land. But, from that alone I am unable to accept the contention that the plaint A and B schedules are not agricultural land. The expression 'agricultural land' is not defined in the Act. Therefore, that expression must be given its normal meaning. 16. It is admitted that the suit properties are situated in a Panchayat area and it is bounded by private properties. The extent is 1.53 acres each. The plaint schedule refers to the improvements and yield from the said properties. In the settlement deed in favour of the respondents, Gouri Amma has reserved a life interest. These circumstances, in the absence of any evidence that the said items are not agricultural land, are sufficient to say that it is agricultural land. The mere fact that in plaint A schedule a house and well are situated cannot take away nature of the plaint A schedule from agricultural land to commercial land so that the market value of plaint A and B schedules are to be assessed under Sec.7(3A) of the Act. 17. I must also notice that the attempt of the court must be to interpret the provision in a manner which lessened liability of the litigant to pay court fee. The Supreme Court in **Lakshmi Ammal v. K.M.Madhavakrishnan and others ((1978) 4 SCC 15)** has pointed out that the trial courts shall not waste their time grappling with peripheral issues like payment of court fee, etc. 8 OP(C) No.2624/2012 (unless it involves jurisdiction of the court and that the courts must spend their valuable time for deciding the real controversy involved in the case. In that view of the matter also I do not find reason to interfere with Ext.P6, order. Original Petition is dismissed. No cost. All pending interlocutory applications will stand dismissed. **THOMAS P.JOSEPH, Judge.** ## **cks**