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2024 DIGILAW 1171 (KER)

Muhammedali v. Amina Kutty

2024-09-10

VIJU ABRAHAM

body2024
JUDGMENT The above original petition is filed challenging Ext.P11 order in IA No.3 of 2024 in O.S. No.4 of 2021 on the file of the Sub Court, Manjeri wherein Ext.P9 application seeking to amend the valuation portion in the plaint filed under Order VI Rule 17 of the Code of Civil Procedure was dismissed. 2. The brief facts necessary for the disposal of the original petition are as follows: The petitioner herein is the 2nd plaintiff in O.S. No.4 of 2021 on the file of the Sub Court, Manjeri, a suit filed seeking fixation of boundary between the plaint A and B schedule properties, permanent prohibitory injunction restraining trespass and for other reliefs. The plaint was subsequently amended by filing I.A.No.252/2013 incorporating a prayer for recovery of possession of plaint A schedule on the strength of the plaintiff's title, in the event it is found that the plaintiffs have lost possession of the same. Petitioner took a contention that the additional relief of recovery of possession incorporated by way of an amendment is only an ancillary relief as it depends upon the main relief. The Trial Court overruled the contentions of the plaintiffs and passed Ext.P7 order finding that the relief of recovery of possession is chargeable with the highest fees and therefore the plaintiffs have to pay court fee as per Section 30 of the Kerala Court Fees and Suits Valuation Act 1959 (for short the 'Act 1959'), and the petitioner was directed to take steps within 20 days to amend the valuation portion of the plaint and pay court fee for relief of recovery of possession specifying the manner in which the market value of plaint A schedule is assessed. The said order was challenged by the petitioner in OP(C) No.3103 of 2016 before this Court. This Court confirmed the said order as per Ext.P8 order and the plaintiffs were directed to remit the court fee on the relief of recovery of possession and clarified that plaintiffs can value the property based on the market price as envisaged in the impugned order and in terms of Section 7 of the Act 1959. Later on, the petitioner filed IA No.3 of 2024 seeking to amend the valuation portion in the suit contending that certain mistakes had crept in while computing the same. Later on, the petitioner filed IA No.3 of 2024 seeking to amend the valuation portion in the suit contending that certain mistakes had crept in while computing the same. Petitioner contended that relief 'C' in respect of recovery of possession has to be valued on the basis of the rental value of the building. To Ext.P9 application filed as IA No.3 of 2024, respondent No.2 filed Ext.P10 objection and the Trial Court by Ext.P11 order rejected the request for amendment. It is the said order that is challenged in this original petition. 3. Petitioner submits that the valuation incorporated is a mistake and is entitled to rectify the same. It is contended that the building situated in 'A' schedule property are comprising of commercial shop rooms and therefore the valuation of the building has to be taken u/S.7(3) of the Act 1959 for the purpose of the valuation of the suit. 4. The respondents entered appearance and seriously opposed the application contending that the petitioner's request was rightly rejected by the Trial Court by Ext.P11 order. 5. I have considered the rival contentions on both sides. 6. The Trial Court as per Ext.P7 order entered a finding that the relief for recovery of possession is not in any way depending upon the relief for fixation of boundary and on the other hand the question of granting relief of recovery of possession arises when the relief of fixation of boundary alone cannot be granted and going by Section 6(2) of the Act,1959 where more reliefs than one based on the same cause of action are sought in the alternative in any suit, the plaint shall be chargeable with the highest of the fees leviable in respect of any of the reliefs. Since the relief of recovery of possession is chargeable with the higher fee and therefore, the plaintiffs have to pay court fee u/s.30 of the Act 1959. Since the relief of recovery of possession is chargeable with the higher fee and therefore, the plaintiffs have to pay court fee u/s.30 of the Act 1959. Section 6(2) of the Kerala Court Fees and Suit Valuation Act, 1959 reads as follows: “(2) Where more reliefs than one based on the same cause of action are sought in the alternative in any suit, the plaint shall be chargeable with the highest of the fees leviable in respect of any one of the reliefs.” Though the petitioner challenged Ext.P7 order in OP(C) No.3103 of 2016, this Court entered a finding that the reliefs for fixation of boundary is only a step-in-aid for the substantive relief for recovery of possession and that the relief for recovery of possession has to be treated as the main relief and the relief for fixation of boundary may be treated as ancillary to the main relief for recovery of possession. The court also entered a finding that the suit has to be valued as provided under Section 6(1) and (2) of the Act, 1959. In Ext.P8, the finding with respect to the market value of the property is also not interfered with so as to enable the plaintiffs to value the property based on the market price in terms of Section 7 of the Act 1959. Thereafter, the petitioner preferred Ext.P9 application contending that the valuation shown in the plaint is by mistake and the same has to be calculated based on the market value of the building and ten times the rental value is to be taken as the valuation. 7. In the objection filed by respondents as Ext.P10 it is contended that the petitioner has only calculated the value of the building in the schedule property but the value of the property has not been taken into consideration and the market value of 'A' schedule property has to be taken into consideration for determining the valuation of the suit for the purpose of payment of court fee. It is also contended that 'A' schedule property is adjacent to the State Highway and is a commercially important plot and court fee is leviable u/s.7(3)A of the Act,1959. It is also contended that 'A' schedule property is adjacent to the State Highway and is a commercially important plot and court fee is leviable u/s.7(3)A of the Act,1959. The said rival contentions were considered by the Trial Court and as per Ext.P11 order the Trial Court found that the valuation now sought to be amended is based on the valuation of ten times the rental value and that no evidence has been given as to whether the rental value of the building is entered in the register of any local authority and therefore, plaint A schedule property having an extent of 12 cents as going by the averment in the plaint and admittedly not an agricultural land and as per the commission report and plan the building in the property is located at a corner of the property, the predominant purpose of the land is certainly not the use of the commercial building. The court also entered a finding that in Ext.P7 the relief of recovery of possession is chargeable with the highest fee provided under Section 6(2) of the Act, 1959 and therefore, court fee shall be paid under Section 30 of the Act, 1959. 8. As per Ext.P6 commission report, the schedule property is situated on the side of the Edappal-Pattambi road and the property marked as HFJI is part of the plaint schedule property which is situated by the side of the Edappal-Pattambi road and the shop rooms are situated facing the said road. Admittedly, the schedule property is a commercial property adjacent to the Edappal- Pattambi road, and the shop rooms are situated facing the said road. The question to be considered in this case is regarding the proper valuation of the suit. The petitioner has taken a contention in Ext.P9 that since the valuation is to be taken on the rental value of the building and therefore ten times the annual value is to be taken into consideration as the valuation for the suit. Going by Section 6(2) of the Act, 1959 where more reliefs than one based on the same cause of action are sought in the alternative in any suit, the plaint shall be chargeable with the highest of the fees leviable in respect of any one of the reliefs. Section 7 of the Act, 1959 dealing with the determination of market value reads as follows: “7. Section 7 of the Act, 1959 dealing with the determination of market value reads as follows: “7. Determination of market value: (1) save as otherwise provided, where the fee payable under this Act depends on the market value of any property, such value shall be determined as on the date of presentation of the plaint. (2) The market value of agricultural land in suits falling under Section 25(a), 25(b), 27(a), 29, 30, 37(1), 37(3), 38, 45 or 48 shall be deemed to be ten times the annual gross profits of such land where it is capable of yielding annual profits minus the assessment if any made to the Government. (3) The market value of a building shall in cases where its rental value has been entered in the registers of any local authority, be ten times such rental value and in other cases the actual market value of the building as on the date of the plaint. [(3A) The market value of any property other than agricultural land and building falling under sub-sections(2) and (3) shall be the value it will fetch on the date of institution of the suit] (4) Where the subject-matter of the suit is only a restricted or fractional interest in a property, the market value of the property shall be deemed to be the value of the restricted or fractional interest and the value of the restricted or fractional interest shall bear the same proportion to the market value of the absolute interest in such property as the net income derived by the owner of the restricted or fractional interest bears to the total net income from the property.” Section 7(2) deals with the market value of agricultural land, Section 7(3) deals with market value of building and Section 7(3A) deals with the market value of any property other than agricultural land and building falling under sub- sections (2) and (3). Going by Section 7(2) the market value of agricultural land shall be deemed to be ten times the annual gross profits of such land where it is capable of yielding annual profits minus the assessment if any made to the Government. Going by Section 7(2) the market value of agricultural land shall be deemed to be ten times the annual gross profits of such land where it is capable of yielding annual profits minus the assessment if any made to the Government. Going by Section 7(3) the market value of a building shall in cases where its rental value has been entered in the registers of any local authority, be ten times such rental value and in other cases the actual market value of the building as on the date of the plaint. Whereas Section 7(3A) deals with the market value of any property other than agricultural land and building falling under sub-sections (2) and (3) shall be the value it will fetch on the date of institution of the suit. The contention of the petitioner is that the valuation of the suit will come u/S.7(3) and therefore rental value has to be taken into consideration. Admittedly, the petitioner has not produced any document to substantiate that the rental value of the said building has been entered in the registers of any local authority. Therefore, the claim of the petitioner that the valuation is to be determined based on Section 7(3) of Act, 1959 cannot be accepted. 9. This court in Narayanan Nair v. Dr.Lokeshan Nair ( 2014 (2) KLT 868 ) has held that Section 7(3) of the Act, 1959 will have application only where the property consists of the building alone and not where a building is situated in an agricultural land and therefore court fee has to be computed u/S.2 of the Act, 1959. Admittedly, in the present case, the plaint schedule property has an extent of 12 cents as per the averment in the plaint and admittedly not an agricultural land and there is a building also therein. This Court considered a similar issue in OP(C) No.339 of 2010 and the petitioner therein was having right, title and possession of the land referred to in the plaint schedule covered by the document and also the building situated thereon, which is exactly the similar situation dealt with in the present case also. This Court held that sub-section(3) of Section 7 of the Act, 1959 would apply only to cases where the subject matter of the suit is building alone. This Court held that sub-section(3) of Section 7 of the Act, 1959 would apply only to cases where the subject matter of the suit is building alone. Sub-section(3A) of Section 7 refers to any property other than agricultural land and building alone falling under Sub-section (2) and (3). Sub-section(2) of Section 7 of the Act relates to agricultural land while Sub- section(3) refers to building alone. Therefore, it is clear that Sub-section(3A) of Section 7 of the Act, 1959 relates to the property other than agricultural land referred to in Sub-section(2) and building alone referred to under Sub- section(3) and in the said circumstance the proper valuation is to be as provided u/s.7(3A) of the Act, 1959 in as much as the claim of the petitioner is in respect of a land as well as the building contained therein. Therefore, going by Section 7(3A), the valuation is to be shown based on the market value of the property as on the date of institution of the suit. Since this is a suit coming u/s.30 of the Act,1959 which mandates that in a suit for possession of immovable property not otherwise provided for, fee shall be computed, on the market value of the property or on rupees one thousand, whichever is higher. Section 7(3A) r/w Section 30 of the Act, 1959 makes it explicitly clear that the valuation of the property is to be as provided in Section 7(3A) and also Section 6(2) of the Act, 1959. In view of the above, I find no reason to interfere with Ext.P11 order and the original petition is accordingly dismissed.