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1992 DIGILAW 250 (KER)

Kunjanni v. Jacob

1992-07-22

K.S.PARIPOORNAN

body1992
ORDER K.S. Paripoornan, J. 1. The plaintiff in O.S. No.72 of 1988, Sub Court, Palakkad is the revision-petitioner. The order passed by the court below dated 27-1-1989 directing the plaintiff to pay advalorem court fee under S.37(2) of the Kerala Court Fees and Suits Valuation Act, is assailed in this revision. 2. The suit, O.S. No.72 of 1988, is one for partition. The plaintiff and the first defendant arc the children of one-deceased Ittoop and Kunjila. Defendants 3 to 6 are the children of the said Ittoop born by the second defendant. The plaintiffs case is that defendants 3 to 6 are the illegitimate children of deceased Ittoop and the second defendant. The plaint schedule property was purchased by Kunjila, by sale deed No.2794/ 1942. Subsequent to the death of Kunjila, the properly devolved on the plaintiff and the first defendant (children of Ittoop and Kunjila). Defendants 2 to 6 are in permissive possession of the plaint schedule property. The defendants obstructed the plaintiff from plucking coconuts from the coconut trees. The first defendant agreed to partition the property; but he has not taken any steps therefor. The other defendants are committing waste in the properly. So, the suit was laid for partition and separate possession of 1/2 share of the property. The defendants filed a common written statement. They urged that Ittoop married the second defendant as per the custom of the community. The property was acquired in the name of Kunjila by Ittoop. They also stated that the plaintiff was never in possession of the properly. Defendants 2 to 6 pleaded that they are in exclusive possession of the properly. They also pleaded that the suit for partition and separate possession is not maintainable. 3. The court below framed 13 issues in the case. Issue No.9 related to the question as to whether the court fee paid is correct. In considering the question, the court below stated that though the plaintiff averred that she was in joint possession of the plaint schedule property along with the defendants till 1986, from 1986 onwards she is not sharing the profits of the properly. Since she is not sharing the properties, she is not in joint possession of the properly with the defendants and so this is a case where the court fee should be paid under S.37(2) of the Kerala Court Fees and Suits Valuation Act. Since she is not sharing the properties, she is not in joint possession of the properly with the defendants and so this is a case where the court fee should be paid under S.37(2) of the Kerala Court Fees and Suits Valuation Act. The court fees paid under S.37(l) of the Act treating the suit as one for partition simpliciter is not maintainable. The plaintiff was directed to pay advalorem court fee under S.37(2) of the Kerala Court Fees and Suits Valuation Act. Aggrieved by the said order of the court below, dated 27-1-1980, the plaintiff has come up in revision. 4. I heard counsel for the petitioner/plaintiff as also the learned Government Pleader. It is plainly stated in the plaint that the plaintiff is in. joint possession of the properly along with the defendants. There is also an averment in Para.3 of the plaint, that in 1986 when the plaintiff went to the properly to pluck coconuts, defendants 2 onwards raised objections and created trouble. At best, the said plea can be interpreted as a case where an attempt was made to exclude the plaintiff from enjoying the property by plucking coconuts etc. This part of the pleading has been interpreted by the court below as amounting to the plaintiff stating that she is not in joint possession of the plaint schedule properly from 1986 onwards. The court below has misread and mis-understood the relevant portions of the plaint, especially Para.3. The definite plea in the plaint is that the plaintiff is in joint possession of the properly along with the defendants. It is also stated that in 1986 when the plaintiff went to the property to pluck coconuts, defendants 2 onwards raised some objections and a quarrel ensued. The said averment will not amount to a plea that the plaintiff is excluded from possession. Unless it is evident that the plaintiff has been excluded from possession and enjoyment of the property, S.37(2) of the Act has no application. There is no plea at all in the plaint that the plaintiff has been excluded from possession. The mere plea that there was an attempt to obstruct the plaintiff from inking the yield will not amount to exclusion from possession. In Kuriyakkatt Chacko v. Ayissumma ( AIR 1967 Ker. 176 ) Krishnamoorthy Iyer, J. had occasion to consider a similar matter. The mere plea that there was an attempt to obstruct the plaintiff from inking the yield will not amount to exclusion from possession. In Kuriyakkatt Chacko v. Ayissumma ( AIR 1967 Ker. 176 ) Krishnamoorthy Iyer, J. had occasion to consider a similar matter. After referring to the earlier authorities, the learned Judge held that S.37(2) of the Kerala Court Fees and Suits Valuation Act can apply only if the case pleaded is one of exclusion of the plaintiff from possession. The learned Judge observed further thus: ".....Exclusion from enjoyment of receipt of income is totally different from exclusion from possession. Mere appropriation of the profits of the property, or even exclusive use of the properly by the cosharer docs not amount in law to 'exclusion' of other cosharers from possession". In this case, the averments in the plaint do not point out that the plaintiff has been excluded from possession. At best, it is a case where the plaintiff has been excluded from enjoyment of income. In such a situation, S.37(2) of the Act will not apply. The court below was in error in holding that S.37(2) of the Kerala Court Fees and Suits Valuation Act will apply and in directing the plaintiff to pay advalorem court fee. 5. The order of the court below dated 27-1-1989 is set aside. I hold that the court fee paid by the plaintiff is sufficient. The court below shall proceed with the trial of the suit with all expedition. Since the suit is of the year 1988, top priority shall be given to this suit, and as far as possible, it shall be posted from day-to-day and the suit itself disposed of on or before 31st of December. 1992. The case is posted in the court below, for appearance of parties and for further steps, to 3rd of August, 1992. The revision is allowed.