IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 22ND SEPTEMBER 2011 / 31ST BHADRA 1933 OP(C).No. 3023 of 2011(O) ------------------------- OS.466/2009 of MUNSIFF COURT, PARAVUR .................... PETITIONER/DEFENDANT NO.2 IN OS.466/09 IN MUNSIFF COURT, N. PARAVUR ---------------------------------------------------------- SAFIYA, AGED 45, W/O.ABOOBACKER, KOOLOOTH, RESIDING AT NOOR MANZIL, KIZHAKKEPRAM, KOTTUVALLY. BY ADV. SRI.T.K.RADHAKRISHNAN RESPONDENTS/RESPONDENTS IN OS.466/09 IN MUNSIFF COURT, N. PARAVUR: --------------------------------------------------------- 1. ALI, AGED 63, S/O.KUTTAYALL MOHAMMAD HAJI, KOOLOTH, PARAVOOTHARA, PARAVUR TALUK.691 301. 2. SARA, AGED 66, W/O.MOHAMMAD NISSAR, D/O.MOHAMMAD HAJI, AZHIKODU MURI, AZHIKOD VILLAGE.670 009. 3. MYMOON, AGED 62, W/O.SYED MOHAMMAD, VADAKKEVEETTIL, EDAVANAKKAD.682 502. 4. AMEENA, AGED 60, W/O.BASHEER, MANDARUMADATHIL, MANJALI KARA.682 502. 5. MOHAMMED, AGED 58, KANDARUMADATHIL, MANJALI KARA.682 502. 6. AYSHA, AGED 56, W/O.IBRAHIMKUTTY, KANDARUMADATHIL, MANJALI KARA.682 502. 7. SULEKHA, AGED 54, W/O.KAREEM, MATTATHIL, EDAPPILLY MURI.682 024. 8. ALIMA, AGED 52, W/O.IQBAL, PONNAMBATH, ERNAKULAM VILLAGE.682 024. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 22/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 3023 of 2011 APPENDIX PETITIONER'S EXHIBITS : EXT.P1- COPY OF PLAINT IN O.S.NO.466/09 ON THE FILE OF MUNSIFF COURT, NO.PARAVUR. EXT.P2- COPY OF THE WRIT STATEMENT FILED BY THE PETITIONERS. EXT.P3- CERTIFIED COPY OF THE ORDER IN THE PRELIMINARY ISSUE DATED 18.08.2010 IN O.S.NO.466/09 ON THE FILE OF MUNSIFF COURT, N.PARAVUR. EXT.P4- CERTIFIED COPY OF THE ORDER PASSED IN FRAMING ISSUE IN O.S.NO.466/09 ON THE FILE OF MUNSIFF COURT, N.PARAVUR. RESPONDENTS' EXHIBITS: NIL True Copy P.A to Judge THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.3023 of 2011 --------------------------------------- Dated this 22nd day of September, 2011 JUDGMENT A decision on the question of court fee payable by the respondents/plaintiffs is under challenge in this proceeding. Respondents filed O.S.No.466 of 2009 in the Court of learned Munsiff, North Paravur for a decree for prohibitory injunction to restrain petitioner and the first defendant (who expired during pendency of the suit) from creating liability and committing act of waste in the suit property without consent and concurrence of respondents. The dispute is concerning 50 cents in survey 162/1A and 162/1AB which originally belonged to one Kuttayall Muhammad Haji and which respondents claimed, was gifted to his daughter, Rabia as per document No.2582 of 1952. According to the respondents, Rabia died interstate on 05.08.2009 and thus they inherited the property. They learned that petitioner and the first defendant created some document with respect to the suit property and are attempting to do so again. Hence the suit. Petitioner and first defendant filed Ext.P2, written statement contending that Rabia died on 23.11.2004 and that there was an oral gift of the property in favour of petitioner on 29.08.2004 O.P(C).No.3023 of 2011 -: 2 :- which is valid in law. They also contended that the suit is time barred since Rabia expired on 23.11.2004 and the suit ought to have been filed within three years from the date of death. The further contention is that valuation of the subject matter of the suit and payment of court fee under Sec.27(c) of the Kerala Court Fees and Suits Valuation Act (for short, "the Act”) is not correct. 2. Learned Munsiff found that it is only a suit for prohibitory injunction and valuation of the subject matter and hence payment of court fee under Sec.27(c) of the Act are correct. 3. Learned counsel contends that the said decision of the learned Munsiff is not correct. It is contended that learned Munsiff had not even framed proper issue since the dispute is regarding title of plaint schedule property. As the dispute is regarding title, respondents cannot ask for the reliefs prayed for. In Karunakaran Vs. Bhaskara Panicker and Ors. (1999(2) KLJ 695) it is held that issues framed must reflect the real controversy between the parties. According to the learned counsel the only relief respondents have prayed for, is injunction against alienating and encumbering the property or committing acts of waste therein. 4. If there is no proper framing of issue, the remedy is under Rule 5 of Order XIV of the Code. That provision enables O.P(C).No.3023 of 2011 -: 3 :- the Court, at any time before passing a decree to amend the issue or frame additional issues on such terms as it thinks fit. Hence I need not go into that question. Hence question is whether as contended by petitioner, since she have raised a dispute regarding title claimed by the respondents/plaintiffs, they are liable to pay court fee under Sec.27(a)(ii) of the Act. 5. The said provision relates to the liability to pay court fee where issue regarding title is framed. Even as per the version of petitioner, no such issue has been framed. On the other hand, respondents are seeking prohibitory injunction against transfer, encumbrance and commission of waste and has valued the subject matter accordingly. As things stands now, I do not find reason to interfere with the impugned order. The question whether on the contention raised by petitioner in the written statement respondents are entitled to the relief prayed or an enquiry into title claimed by the respondents is required and/or relevant are matters which the trial court has to decide at the appropriate stage. With the above observation, this original petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-