IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 25TH JULY 2011 / 3RD SRAVANA 1933 OP(C).No. 854 of 2011(O) ------------------------------------ OS.784/2009 of PRL.MUNSIFF COURT, PALAKKAD .................... PETITIONERS(PLAINTIFFS) --------------------------------------- 1. KRISHNAMOORTHY, S/O.CHINNAPPAN CHETTIAR, RESIDING AT CHETTIYARKALATH, THIRUNELLAYI, PIRAYIRI AMSOM DESOM, PALAKKAD TALUK. 2. GURUVAYURAPPAN, S/O.CHINNAPPAN CHETTIAR, RESIDING AT DO. DO. BY SRI.N.SUKUMARAN, SENIOR ADVOCATE BY ADVS. SRI.S.SHYAM SRI.BOBBYMATHEW KOOTHATTUKULAM RESPONDENT(S): (DEFENDANT) ---------------------------------------------- 1. NARAYANI, W/O.CHINNAPPAN CHETTIAR, RESIDING AT CHETTIYARKALATH, THIRUNELLAYI, PIRAYIRI AMSOM DESOM, PALAKKAD TALUK-678 019. 2. NAGARAJAN, S/O.CHINNAPPAN CHETTIAR, DO. DO. 678 19. R2 BY ADV. SRI.A.R.GANGADAS THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 25/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss OPC. 854/2011 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PLAINT IN OS.784/2009 DT.D 26.11.2009 ON THE FILES OF THE PRL.MUNSIFF'S COURT, PALAKKAD. P2:- COPY OF THE WRITTEN STATEMENT FILED BY THE 2ND DEFENDANT I N EXT.P1 CASE DT. 19.3.2010. P3:- COPY OF THE PETITION FILED BY THE PETITIONERS AS IA. NO.1418/2010 IN EXT.P1 CASE DTD. 7.6.2010. P4:- COPY OF THE OBJECTION FILED BY THE 2ND RESPONDENT EXT.P3 DTD. 17.6.2010. P5:- COPY OF THE COMMISSION REPORT FILED BY THE COMMISSIONER IN EXT.P1 CASE DTD. 4.12.2010. P6:- COPY OF THE OBJECTION TO EXT.P5 FILED BY THE PETITIONERS IN EXT.P5 DTD. 13.12.2010. P7:- COPY OF THE ORDER DT. 8.2.2011 IN OS. NO.784/2009 ON THE FILES OF THE PRL. MUNSIFF'S COURT PALAKKAD. P8;- COPY OF THE ORDER DTD. 10.2.2011 PASSED IN IA. 1418/2010 IN OS. 784/2009 ON THE FILES OF THE PRINCIPAL MUNSIFF'S COURT, PALAKKAD. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.A. TO JUDGE tss THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.854 of 2011 -------------------------------------- Dated this the 25th day of July, 2011. JUDGMENT Petitioners are plaintiffs in O.S.No.784 of 2009 of the court of learned Principal Munsiff, Palakkad. That is a suit for recovery of possession of 42 cents and the structure situated thereon, on the strength of tile. Petitioners claimed that they got the suit property as per settlement deed executed by the first respondent, but at a time when they were not in station the second respondent who is their brother trespassed into the property and took possession. In Ext.P1, plaint petitioners assessed, for the purpose of jurisdiction and valuation market value of the property as `10,000/- being ten times of the annual income from the property and accordingly court fee of `400/- was paid under 'Section 30(2)' of the Kerala Court Fees and Suits Valuation Act (for short, “the Act”). Second respondent filed Ext.P2, written statement contending that valuation made by petitioners is not correct, the small rice mill situated in the suit property occupies only about two cents and rest – 40 cents is garden land the centage value of which is `14,000/-. In view of that contention petitioners filed Ext.P3, application for amendment of the plaint to contend that value of property stated in the settlement deed based on which they claim title is `45,000/- and, to amend valuation in the plaint to show that the market value of the property is `90,000/-. To that application second respondent filed Ext.P4, objection stating that as per the fair value fixed by the State Government land value is `26,135/- per OP(C) No.854/2011 2 cent with effect from 01.04.2010 (the suit was filed on 26.11.2009). In view of the rival contentions learned Munsiff appointed an Advocate Commissioner to inspect the property and submit a report. Advocate Commissioner filed Ext.P5, report stating that on enquiry it is understood that fair value fixed by the Government in the locality is `65,000/- per Are. The statement of the Village Officer to that effect was annexed to the report. Following that, learned Munsiff passed Ext.P7, order fixing market value of the suit property as `11,05,263/- and directing petitioners to value the plaint and pay court fee since they have valued the suit only at `1,000/-. In view of Ext.P7, order Ext.P3, application for amendment was dismissed as per Ext.P8, order. Exts.P7 and P8, orders are under challenge in this petition. 2. Learned counsel for petitioners contend that the whole approach made by the learned Munsiff is wrong in that market value of the property is to be fixed not on the basis of centage value but based on annual income multiplied by ten under Section 7 of the Act. It is pointed out by learned counsel that even as per the version of second respondent, of the 42 cents the small rice mill occupies only two cents and the remaining 40 cents is garden land in which case market value of the said 40 cents ought to have been assessed under Section 7(2) of the Act and assuming that the remaining two cents is occupied by the rice mill its market value ought to have been assessed under Sub-section (3) of Section 7 of the Act. Learned counsel for respondents OP(C) No.854/2011 3 supported the orders under challenge. It is pointed out that the property is grossly undervalued which affected the jurisdiction of the learned Munsiff as well. 3. It appears that in spite of petitioners claiming recovery of possession on the strength of title against the second respondent who is alleged to be in possession by trespass, court fee is paid under Section 30 of the Act which according to me is not correct since court fee should have been paid under Section 25(a) of the Act. Assuming that Section 30 of the Act applies then also the valuation is based on the market value of the property. The manner of determination of market value is provided under Section 7 of the Act be it under Section 25(a) or Section 30 of the Act. If the suit property is agricultural land, assessment should be under Section 7(2) of the Act and if it is building, assessment should be under Sub-section (3) of Section 7 of the Act. In this case I have referred to the contention that second respondent has raised in the written statement that except the two cents occupied by the rice mill the remaining 40 cents is garden land. These aspects were not taken into account by the learned Munsiff and instead, learned Munsiff assessed market value based on the centage value of the property. 4. Equally incorrect is the stand of petitioners in Ext.P3, application for amendment that the market value is `90,000/- since in the documents of title value shown is `45,000/- There also, what is stated is that the value of the property as per cent and not as assessed under various Sub-sections of Section OP(C) No.854/2011 4 7 of the Act. Hence Ext.P7 is prima facie unsustainable. 5. Learned counsel for petitioners submitted that in view of the above finding of this Court Ext.P8, order is not being challenged and that petitioners may be granted permission to amend the plaint suitably assessing market value under the relevant Sub-sections of Section 7 of the Act. Having regard to the contentions raised and circumstances of the case I am inclined to allow that request. Resultantly this Original Petition is allowed in the following lines: i. Ext.P7, order passed by the learned Principal Munsiff, Palakkad is set aside and the matter is remitted to the learned Principal Munsiff for fresh decision on the issue regarding valuation and court fee in the light of the observations made above. ii. It is made clear that if necessary it will be open to the learned Principal Munsiff to appoint an Advocate Commissioner to assess market value of the property. iii. It is also made clear that notwithstanding Ext.P8, order if in the above circumstances amendment of plaint is required, it is open to the petitioners to seek such amendment before learned Principal Munsiff. THOMAS P.JOSEPH, Judge. cks