IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 21ST JULY 2011 / 30TH ASHADHA 1933 OP(C).No. 1035 of 2011(O) ------------------------- OS.626/2009 of ADDL.SUB COURT, PALAKKAD .................... PETITIONER ---------------------- MADHAVAN,S/O.KRISHNAN,AGED 77 YEARS, PULIAMPANAKAD,KANISSERY, ALATHUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.BABY MATHEW RESPONDENT(S): --------------------------- 1. SURENDRAN,S/O.MADHAVAN,AGED 53 YEARS, ANKAMASSALA, KANISSERY,ALATHUR TALUK, PALAKKAD DISTRICT. 2. PUSHPARAJAN,S/O.MADHAVAN,AGED 51 YEARS, PULIAMPANAKAD,KANISSERY,ALATHUR TALUK, PALAKKAD DISTRICT. ADV. SRI.NAGARAJ NARAYANAN FOR R1-2 SRI.RAJAN VELLOTH FOR R1-2 SRI.SAIJO HASSAN FOR R1-2 SRI.PRATHAP PILLAI FOR R1-2 SRI.BENOJ C AUGUSTIN FOR R1-2 SRI.RAFEEK. V.K. FOR R1-2 SRI.PRAVEEN KUMAR THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 21/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 1035 of 2011 APPENDIX: PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF THE PLAINT IN O.S. No.626/2009 DATED 20.10.2009. EXT.P2: TRUE COPY OF THE ORDER DATED 17.5.2010. EXT.P3: TRUE COPY OF THE ORDER DATED 19.10.2010. EXT.P4: TRUE COPY OF THE ORDER DATED 6.10.2004 IN I.A. 465/2004. RESPONDENTS' EXHIBITS: NIL. TRUE COPY P.S. TO JUDGE. Kp/ THOMAS P.JOSEPH, J. ==================================== O.P(C) No.1035 of 2011 ==================================== Dated this the 21st day of July, 2011 J U D G M E N T The first defendant in O.S. No.626 of 2009 of the court of learned Additional Sub Judge, Palakkad is aggrieved by Ext.P3, Order passed by the learned Sub Judge on a preliminary issue regarding sufficiency of court fee paid by respondents-plaintiffs in the suit for partition and separate possession of the share they claimed in the suit property. According to the respondents suit property belonged to the family of the parties on verumpattom arrangement and later, Sivanarayanan their predecessor-in- interest and others executed partition deed No.870 of 1959 in which plaint C schedule was allotted to the Sakha of Sivanarayanan. Thus petitioner, other defendants and respondents are co-owners of the property. Hence the suit for partition. Petitioner contended that suit property is not partible and that even though property was held by the predecessor-in- interest of petitioner and respondents on varumpattom arrangement they had surrendered the lease to the Jenmy and thereafter petitioner became the cultivating tenant and obtained O.P(C) No.1035 of 2011 -: 2 :- purchase certificate. Thus property exclusively belonged to him. It is also contended that he obtained an ex parte decree for prohibitory injunction against the respondents in O.S. No.149 of 2004 of the court of learned Munsiff, Alathur and in the circumstances respondents cannot claim that they are in joint possession of the property. The plea of joint possession stated by the respondents is not correct and as such valuation of the suit and fixation of market value of the property for payment of court fee under Section 37(2) of the Kerala Court Fees and Suits Valuation Act (for short, “the Act”) is not correct. Issue regarding sufficiency of valuation was considered by the learned Sub Judge. Learned Sub Judge observed that so far as valuation and payment of court fee is concerned, the court is primarily concerned with the allegations in the plaint, plaint averments proceeded as if respondents are co-owners in joint possession of the property and accordingly they have paid court fee under Sec.37(2) of the Act. Learned Sub Judge observed that the mere fact that an ex parte decree for injunction was obtained cannot lead to respondents being directed to pay court fee under Sec.37(1) of the Act as contended by petitioner. Accordingly a finding was entered. That finding is under challenge. Learned counsel submitted that the O.P(C) No.1035 of 2011 -: 3 :- fact that in O.S. No.149 of 2004 a decree for injunction was granted indicate that petitioner is in exclusive possession of the property. Learned counsel for respondents explained the circumstances under which there happened to be an ex parte decree. 2. As learned Sub Judge pointed out primarily, the question of sufficiency of valuation, be it for the purpose of jurisdiction or otherwise has to depend on the averments in plaint. It is not as if the court is precluded from conducting an enquiry in the matter. But there must be justifiable materials to embark upon such enquiry. Primarily payment of court fee is a matter between the respondents-plaintiffs and court as it affected revenue due to the Government. Of course in cases where valuation affected jurisdiction of the court, situation may be a bit different. Here suit was instituted in the Sub Court and any change of valuation cannot affect the forum of litigation. Hence petitioner is not affected that way. 3. In the plaint it is alleged that parties are co-owners in joint possession. It is not as if there is no reference of O.S. No.149 of 2004 in the plaint. It is stated in paragraph 9 of the plaint that on respondents demanding partition of the property, petitioner got O.P(C) No.1035 of 2011 -: 4 :- wild and filed O.S. No.149 of 2004 against respondents and Sivanaraynan. While so, there was some sort of a settlement talk between the parties in which it was understood that after the proceeding regarding excess land is over property could be partitioned and in the light of that assurance respondents did not agitate their contentions in O.S. No.149 of 2004. 4. I must bear in mind that so far as co-owners are concerned, one co-owner who is in possession must be treated as trustee on behalf of the other co-owners and hence possession of the co-owners must be treated as constructive possession of other co-owners not in actual possession. Exclusive possession contemplated in Sec.37(1) of the Act is possession to the exclusion of other co-owners arising from ouster. Such situation does not arise in this case. I do not forget that there was an ex parte decree for injunction against respondents trespassing into the suit property obtained by the petitioner. Learned counsel for petitioner contends that if parties were co-owners no decree for prohibitory injunction could have been granted. But as aforesaid whatever be the reason thereof respondents have a case how there happened to be an ex parte decree. These are matters for investigation in the course of trial. On the face of the averments O.P(C) No.1035 of 2011 -: 5 :- in the plaint I am unable to say that respondents were required to value the plaint under Sec.37(1) of the Act. I do not find reason to interfere. Original Petition is accordingly dismissed. THOMAS P. JOSEPH, JUDGE. vsv