IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 9TH DECEMBER 2010 / 18TH AGRAHAYANA 1932 WP(C).No. 4957 of 2010(O) ------------------------- OS.218/2009 of I ADDL.SUB COURT, KOZHIKODE .................... PETITIONER(S): --------------- P.V.BALAKRISHNAN NAIR, AGED 61 YEARS, S/O. PUTHEN VEETTIL DEVAKI AMMA, RESIDING AT SANTHI.P.O., CHALAPPURAM, KOZHIKODE-2. BY ADV. SRI.A.BALAGOPALAN SRI.A.RAJAGOPALAN SRI.K.SANEESH KUMAR RESPONDENT(S): --------------- 1. MADATHIL LALITHA DAS, AGED 57 YEARS, D/O. MADHAVA PANICKER, RESIDING AT NO.8, SREESAKTHI NAGAR, THONDAMUTHUR ROAD, VADAVALLI.P.O., COIMBATORE. 2. S.DAS, AGED 61 YEARS, S/O. S.D.PANICKER 22/A, SREEKRISHNA INDUSTRIES, KALPETTA, SOUTH WAYANAD, WAYANAD DISTRICT. 3. K.GOPALAN NAIR, AGED 56 YEARS, S/O. KALLISSERI JANAKI AMMA, RESIDING AT DEEPAM, 1/4602, NANGALATH PARAMBA, BILATHIKULAM, P.O.ERANHIPALAM KOZHIKODE-6. 4. KUNNATH PREMKUMAR, AGED 44 YEARS, D/O. VELAYUDHAN NAIR, PROPRIETOR, DEVI ENTERPRISES, KANDAMKULAM,CROSS ROAD, CALICUT-2, RESIDING AT 'PRARTHANA', THADAMBATTIL PARAMBA, THADAMBATTUTHAZHAM.P.O., KARAPPARAMBA, KOZHIKODE-10. 5. K.RAJAGOPALAN,AGED 63 YEARS, S/O. VELAYUDHAN NAIR, PROPRIETOR, NEW INDIA AUTOMOBILE, PUTHIYAPALAM, CALICUT, RESIDING AT MANGOTTUVAYAL, P.O.KOTTOOLI, KOZHIKODE-10. WP(C) NO.4957/2010 2 6. V.SANTHKUMARI, AGE 48 YEARS, W/O. BHASKARAN NAIR, B/41, STFF QUARTERS, GRASIM INDUSTRIES, MAVOOR,KOZHIKODE-673661 7. RAJESH.R., AGED 36 YEARS, S/O. K.RAJAGOPALAN, PROPRIETOR, NEW INDIA AUTOMOBILE, PUTHYAPALAM,CALICUT, RESIDING AT MANGOTTUVAYAL.P.O., KOTTOOLI, KOZHIKODE-16. 8. ORIKKALAPPATT LEELA, AGED 57 YEARS, W/O. PADMANABHAN MENON, RESIDING AT 19/1119, KOLLAPURATH HOUSE, KOZHIKODE-2. 9. CANARA BANK, SSI BRANCH KOZHIKODE-2, REPRESENTED BY ITS BRANCH MANAGER. ADV. SRI.T.K.VIPINDAS FOR R4,R5,R7&R8 SRI.SHYAM PADMAN FOR R1 SRI.A.RANJITH NARAYANAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP() NO.4957/2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE PLAINT IN OS NO.218/2000 ON THE FILE OF SUB COURT, KOZHIKODE EXT.P2 TRUE COPY OF WRITTEN STATEMENT FILED BY PETITIONER HEREIN WHO IS THE 2ND DEFENDANT IN OS NO.218/2000 ON THE FILE OF SUBCOURT, KOZHIKODE EXT.P3 TRUE COPY OF VALUATION STATEMENT FILED BY FIRST RESPONDENT IN OS NO.218/2000 ON THE FILE OF SUBCOURT, KOZHIKODE EXT.P4 TRUE OPY OF ORDER DATED 7.12.2009 PASSED BY SUB COURT, KOZHIKODE //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.4957 of 2010 -------------------------------------- Dated this the 9th day of December, 2010. JUDGMENT Defendant No.2 in O.S.No.218 of 2000 of the court of learned Additional Sub Judge-I, Kozhikode is the petitioner before me challenging Ext.P4, order regarding sufficiency of court fee paid by respondent No.1/plaintiff for relief-A in the plaint. Respondent No.1 filed the suit against petitioner and respondent Nos.2 to 9 for a declaration that certain sale deeds referred to in the plaint are null and void, do not affect right, title and interest of respondent No.1 in the suit property, that respondent No.1 continues to be the owner of the property, for recovery of possession and other reliefs. For valuation and payment of court fee relief-A(referred to above) is valued at `.99,996/- being ten times of the annual gross income less revenue payable for one year (stated in the plaint as `.4/-) and court fee was paid for relief-A under Section 25(a) of the Court Fees and Suits Valuation Act (for short, “the Act”). Dispute is regarding valuation of relief-A. Petitioner and other defendants contended in their written statement that valuation is not correct and that even the sale deeds which are sought to be avoided being null and void state consideration for the property as much higher than the market value stated in the plaint. Learned Sub Judge was not inclined to accept contention of petitioner and other defendants and referring to the statement respondent No.1 has filed under Section 10 of the Act found that market value has been correctly assessed for valuation and court fee for relief-A and accordingly found the issue in favour of respondent No.1. That order is under challenge. Learned counsel for petitioner contends that even a perusal of WP(C) No.4957/2010 2 the sale deeds sought to be avoided would show that property is valued much more than the market value stated by respondent No.1. It is also contended that property is not agricultural land and that there are several buildings constructed by petitioner and other contesting defendants. Learned counsel for respondent No.1 supported the order under challenge 2. As referred to earlier, relief-A prayed for a declaration that sale deeds referred to in the plaint are null and void, do not bind respondent No.1 or the suit property and a further declaration that respondent No.1 continues to be the owner of the property. When a document is sought to be avoided as null and void and declaration of title is prayed for, the suit is to be valued and court fee is paid under Section 25 of the Act. This is not disputed before me. The decision in Pankajaksha Kurup v. Fathima & others (1998 (1) KLT 639) is also in that line. Then the question is only whether market value assessed by respondent No.1 is correct. 3. In the documents which are sought to be avoided as null and void the property is described as 'തട' (garden land). The extent is 1.66 acres. That, buildings have been subsequently constructed by the beneficiaries under the documents which are challenged cannot alter the nature and character of the WP(C) No.4957/2010 3 suit. It continues to be agricultural land. Section 7(2) of the Act states the manner for assessment of market value of agricultural land. That is based on gross income for ten years less annual revenue payable for the property. In accordance with that, respondent No.1 has valued relief-A and also filed a statement under Section 10 of the Act. According to respondent No.1, market value computed at ten times annual gross profits less annual revenue payable is `.99,996/-. That has been accepted by the learned Sub Judge. That, the consideration stated in the documents sought to be avoided is different is of no consequence since what is germane under Section 7(2) of the Act is gross income and not the actual value of the property as shown in the documents. I do not find reason to interfere with the order under challenge. 4. I must also bear in mind that payment of court fee (except when it affects the jurisdiction of the court) is primarily a matter between plaintiff and court and that defendants cannot be that much aggrieved by the amount of court fee paid. Bearing these aspects in mind I do not find reason to interfere. Other objections as to maintainability of the suit if any raised by petitioner and other contesting respondents is a matter which the trial court has to decide at the appropriate stage. WP(C) No.4957/2010 4 5. Learned counsel for petitioner states that the case is coming up for trial this day and that since the matter was pending in this Court and being disposed of only today, petitioner has not got ready to proceed with trial of the case. Learned counsel requested that trial court may be directed to postpone trial till Monday (13.12.2010). The request being reasonable is allowed. Learned Sub Judge is directed to post the case for trial on 13.12.2010. Registry shall intimate the learned Sub Judge about that part of this judgment forthwith. Petition is dismissed. I.A.No.15950 of 2010 will stand dismissed. THOMAS P.JOSEPH, Judge. cks