IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 19TH FEBRUARY 2009 / 30TH MAGHA 1930 WP(C).No. 5580 of 2009(O) ------------------------- OS.63/2007 of SUB COURT, VADAKARA .................... PETITIONER(S): -------------------- CHOYI,S/O.KANNAN, KARUKUTTILYULLATHIL, ARUR AMSOM DO DESOM, VADAKARA. BY ADV. SRI.RAJEEV V.KURUP RESPONDENT(S): ----------------------- 1. THE STATE OF KERALA,REPRESENTED BY DIST.COLLECTOR, KOZHIKODE. 2. CHEERU,W/O.KANNAN,KARUKUTTILYULLATHIL, ARUR AMSOM, VADAKARA. 3. CHATHU OF DO DO. 4. BALAN OF DO DO. 5. KUMARAN, S/O. DO DO. 6. KUNHIRAMAN, S/O. OF DO DO. 7. CHIRUTHA, D/O. OF DO DO 8. MANI, D/O.KANNAN, THEKKEPPALLIL, THARAMEL, ARUR DESOM, VADAKARA. 9. POKKAN, D/O.CHEERU, AMBALAPARAMBATH, ARUR DESOM, VADAKARA. 10. KUMARAN, S/O.CHEERU, AMBALAPARAMBATH, ARUR DESOM, VADAKARA. 11. JANU, D/O.CHEERU, PARAYILLATHUTHAZHE, KADAMERY AMSOM, VADAKARA. 12. SHEEBA, KUNIYIL, VILLIAPPALLY AMSOM, VADAKARA. 13. KALYANI, D/O.MATHA, THAYYULLAPRAMBATH, ARUR DESOM, VADAKARA. GOVERNMENT PLEADER SMT.LATHA THANKAPPAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- W.P.(C).No.5580 of 2009 --------------------------------------------- Dated this the 19th day of February, 2009 JUDGMENT The petitioner is the 9th defendant in O.S.No.63/07 on the file of the court of the Subordinate Judge, Vadakara. The suit is for partition. The petitioner contended that the court fee paid under Section 37(2) of the Kerala Courts Fees & Suits Valuation Act is not correct and the court fee paid should be paid under Section 37(1) of the Act. The petitioner filed I.A.No.1248/07 under Section 12(2) of the Kerala Court Fees and Suits Valuation Act. The court below disposed of I.A.No.1248/07 by the order dated 22nd October 2008 holding that the court fee paid under Section 37(2) is proper going by the averments in the plaint. The said order is under challenge in this Writ Petition. 2. The averments in the plaint would indicate that the plaintiffs are in joint possession. The court was right in holding that the plaintiffs need pay court fee only under Section 37(2) of the Court Fees and Suit Valuation Act. 3. The court below while deciding with I.A.No.1248/07 thought that a Commissioner should be appointed for valuing the WPC No.5580/2009 2 properties. The court below also noticed the submission made by the respondents that even if the valuation is made by the Commissioner that would not have much impact since the question to be considered is whether the plaintiffs are in joint possession as alleged. Even after noticing the contentions, the court below thought that it is necessary to appoint a Commissioner to find out the valuation of the subject matter which may have a bearing on the value of the non judicial stamps on which the final decree is to be engrossed. If any of the parties did not request for a Commissioner to be appointed only for the purpose of ascertaining the non judicial stamps required for engrossing the final decree, I do not think it is necessary to appoint a Commissioner at this stage. If the parties do not want such appointment, the court below may consider the same after ascertaining the wishes of the parties. If any of the parties wants the Commissioner to inspect the property for the aforesaid purpose, the order passed by the court below appointing the Commissioner will stand. 4. In so far as the challenge against the order made by the Writ Petitioner is concerned, I do not think that the court below was wrong in holding that the court fee paid is correct. WPC No.5580/2009 3 The finding on that point requires no interference. The learned counsel for the petitioner submitted that the Writ Petitioner has raised a contention that he has perfected title by adverse possession. The apprehension of the learned counsel for the petitioner is that the finding regarding sufficiency or otherwise of the court fee should not stand in the way of the petitioner raising the contention that he has perfected title by adverse possession. The petitioner need not have an apprehension that the finding on the question of court fee would be taken as a finding for the purpose of deciding the question of adverse possession. It is made clear that nothing stated in the order would stand in the way of the petitioner raising appropriate contentions in the suit. With the above observations, the Writ Petition is disposed of. K.T.SANKARAN, JUDGE csl