In an original petition, the court confirmed that fixed court fee under Sec.37(2) was correctly levied in a partition suit, and held that alleged ouster by co-sharers does not constitute statutory 'exclusion' for variable fee under Sec.37(1).
Original petition challenging the court fee order is dismissed; the order affirming fixed court fee is upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH
WEDNESDAY, THE 1ST DAY OF AUGUST 2012/10TH SRAVANA 1934
OP(C).No. 2476 of 2012 (O)
OS.408/2009 of SUB COURT, OTTAPPALAM
PETITIONER(S):
BY ADVS.SRI. P.B.SURESH KUMAR (SR.)
RESPONDENT(S):
MANNARKKAD TALUK, PALAKKAD-678582.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 01-08-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C) NO.2476/2012
APPENDIX
PETITIONER(S) EXHIBITS
EXT.P1 TRUE COPY OF THE ORDER PASSED BY THE CHAIRMAN, TALUK LAND BOARD, MANNARGHAT IN SM 697/1974 DATED 30-8-1979.
EXT.P2 TRUE COPY OF THE SALE DEED NO. 122/1/06 OF AGALI SRO DATED 27-1-2006.
EXT.P3 TRUE COPY OF THE SALE DEED NO. 123/06 OF AGALI SRO DATED 27-1-2006.
EXT.P4 TRUE COPY OF THE RELEASE DEED NO. 1432/2009 OF AGALI SRO EXECUTED BYN. RANGARAJAN IN FAVOUR OF PLAINTIFFS 2 TO 5 DATED 30-9-2009.
EXT.P5 TRUE COPY OF THE PLAINT IN O.S. NO. 408/2009 ON THE FILE OF SUBORDINATE JUDGES COURT, OTTAPPALAM DATED 6-12-2009.
EXT.P6 TRUE COPY OF THE PLAINT IN O.S. NO. 122 OF 2006 ON THE FILE OF THE MUNSIFFS COURT, MANNARGJHAT DATED 12-9-2006.
EXT.P7 TRUE COPY OF THE STATEMENT FILED BY THE PLAITIFFS IN O.S. NO. 122 OF 2006 ON THE FILE OF THE MUNSIFFS COURT, MANNARGHAT DATED 19-6-2008.
EXT.P8 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDENTS IN O.S. NO. 408 OF 2009 ON THE FILE SUBORDINATE JUDGES COURT, OTTAPPALAM DATED 11-6-2011.
EXT.P9 TRUE COPY OF THE FINDING ON THE QUESTION OF COURT FEE RENDERED BY THE SUBORDINATE JUDGES COURT, OTTAPPALM DATED 19-7-2012.
RESPONDENTS' EXHIBITS : NIL
//TRUE COPY//
THOMAS P. JOSEPH, J.
O.P.(C). No.2476 of 2012
Dated this the 1st day of August, 2012.
JUDGMENT
The defendants 1 and 2 in O.S.No.408 of 2009 of the Sub Court, Ottappalam challenge Ext.P9, order on the issue relating to payment of court fee, whether it be under Sub-sec.(1) or (2) of Sec.37 of the Kerala Court Fees and Suits Valuation Act, 1959 (for short, “the Act”)? The learned Sub Judge, on the strength of averments in the plaint held that since the respondents/plaintiffs claim to be in joint possession of the property sought to be partitioned, court fee payable is the fixed court fee provided under Sub-sec. (2) of Sec.37 of the Act.
2
OP(C) No.2476/2012
Ext.P4, assignment deed. It is accordingly that they sought partition and separate possession of their share in the suit property. Fixed court fee was paid under Sub-sec. (2) of Sec.37 of the Act.
3
OP(C) No.2476/2012
That according to the learned Senior Advocate would indicate that the respondents are not in possession of the entire suit property. The last argument the learned Senior Advocate has advanced is with respect to Ext.P6, suit and Ext.P7, statement. Ext.P6 is the copy of plaint in O.S.No.122 of 2006 filed by the 1st respondent and Rafeeq against the 2nd petitioner and four others for a decree for prohibitory injunction in respect of the 19.09 acres. There, the 1st respondent and Rafeeq, the assignor of respondents 2 to 5 (as per Ext.P3) contended that they are in possession of the said 19.09 acres. But, when the suit came up for trial in the list, they filed Ext.P7, statement dated 19.06.2008 withdrawing O.S.No.122 of 2006 expressing their intention to file a suit for possession on title. These circumstances according to the learned Senior Advocate would indicate that the respondents are not in possession of the suit property and at any rate, the suit property excluding 19.09 acres and hence atleast with respect to the suit property excluding 19.09 acres, the respondents are obliged to pay court fee as provided under Sec.37(1) of the Act.
4
OP(C) No.2476/2012
5.50 acres as surplus land. They further state in Ext.P5, plaint that they do not wish to continue the joint ownership and possession. They, therefore claimed partition and separate possession of their share with (future) mesne profits.
“who has been excluded from possession”
of the property sought to be partitioned. Sub-sec. (2) refers to cases of
“joint possession”.
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OP(C) No.2476/2012
prima facie to be accepted and a denial or other controversy raised in the written statement by the defendants has absolutely no bearing on the question of considering the court fee that is payable on the plaint.
6
OP(C) No.2476/2012
7
OP(C) No.2476/2012
19.09 acres and wanted a decree for prohibitory injunction against the 2nd petitioner and others. That suit was withdrawn by Ext.P7 stating that the 1st respondent and Rafeeq intended to file a suit for possession on title.
8
OP(C) No.2476/2012
Original Petition is dismissed.
THOMAS P.JOSEPH, Judge.
cks
2 issues framed by the court
Whether fixed court fee under Sub-sec. (2) of Sec.37 applies where plaintiffs claim joint possession despite pending title litigation.
Whether alleged ouster by co-owners amounts to 'exclusion' from possession under Sec.37(1) of the Kerala Court Fees and Suits Valuation Act.
Colour shows how this judgement treated each authority
Ayisha v. Kunhimayan Haji and othersReferred¶68
Ayisha v. Kunhimayan Haji and others (1966 (2) ILR Kerala 17) · Who else cites this
Thankamma v. Unniamma AntharjanamReferred¶72
Thankamma v. Unniamma Antharjanam (1964 KLT 529)
Neelavathi and others v. N.Natarajan and othersReferred¶72
Neelavathi and others v. N.Natarajan and others (AIR 1980 SC 691) · Who else cites this
Lakshmi Ammal v. K.M.Madhavakrishnan and othersReferred¶85
Lakshmi Ammal v. K.M.Madhavakrishnan and others ((1978) 4 SCC 15) · Who else cites this
1 provisions across 1 enactments
G.P.Selvaraj
G.P. Soundararaj
P.K. Abdul Khader
P.K. Sakeena
P.K. Sulaiikha
P.K. Maimuna
Thomas P. Joseph
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
