G.P. Selvaraj Naidu and G.P. Soundararaj Naidu vs P.K. Abdul Khader and Others

Honourable Mr. Justice, Thomas P. Joseph

The defendants 1 and 2 in O.S.No.408 of 2009 of the Sub Court, Ottappalam challenge Ext.P9, order on the issue relating to payment of court fee, whether it be under Sub-sec.(1) or (2) of Sec.37 of the Kerala Court Fees and Suits Valuation Act, 1959 (for short, "the Act")? The learned Sub Judge, on the strength of averments in the plaint held that since the respondents/plaintiffs claim to be in joint possession of the property sought to be partitioned, court fee payable is the fixed court fee provided under Sub-sec. (2) of Sec.37 of the Act. The suit property is 68.28 acres. As per averments in the plaint, the said property was acquired by one Narayanaswamy Naidu from Mooppilsthanam of Mannarkkad, as per document No.1721 of 1953. According to the respondents, that acquisition was for and on behalf of the family members of the said Narayanaswamy Naidu, as well. The 1st respondent/1st plaintiff obtained share of the said Narayanaswamy Naidu as regards 12.09 acres as per Ext.P2. Another co-owner, Nagaraj assigned his share (seven acres) to one Rafeeq (brother of the 1st respondent). The said Rafeeq assigned the said seven acres to the respondents 2 to 5/plaintiffs 2 to 5 as per Ext.P3. The respondents also laid a claim over the rest of the suit property as per assignment deed. It is accordingly that they sought partition and separate possession of their share in the suit property. Fixed court fee was paid under Sub-sec. (2) of Sec.37 of the Act.

The petitioners while resisting the suit on various grounds contended that respondents are out of possession of the suit property even on their own showing in various proceedings and hence they are liable to pay court fee under Sec.37(1) of the Act. The learned Sub Judge held that there is no ''exclusion'' of the respondents from the suit property and hence, in the light of the averments in the plaint court fee need be paid only under Sub-sec. (2) of Sec.37 of the Act.

The learned Senior Advocate for the petitioners contends that even in the plaint, there is reference to the proceeding of the Taluk Land Board (for short, "the TLB") vide Ext.P1 and hence the respondents are bound by the findings in Ext.P1. It is argued by the learned Senior Advocate that even as per Exts.P2 and P3, relied on by the respondents their entitlement is only as regards 19.09 acres while partition is sought in respect of the entire 68.28 acres. According to the learned Senior Advocate, joint possession claimed by the respondents as per Exts.P2 and P3 therefore, has to be limited to the 19.09 acres while as regards the rest of the suit property, even on the showing of the respondents, they are out of possession. The learned Senior Advocate has also placed reliance on Ext.P4, assignment deed to contend that the vendor has recited in Ext.P4 that since he is not able to possess and enjoy the property, it is open to the vendees under Ext.P4 to get possession and enjoy the property. That according to the learned Senior Advocate would indicate that the respondents are not in possession of the entire suit property. The last argument the learned Senior Advocate has advanced is with respect to Ext.P6, suit and Ext.P7, statement. Ext.P6 is the copy of plaint in O.S.No.122 of 2006 filed by the 1st respondent and Rafeeq against the 2nd petitioner and four others for a decree for prohibitory injunction in respect of the 19.09 acres. There, the 1st respondent and Rafeeq, the assignor of respondents 2 to 5 (as per Ext.P3) contended that they are in possession of the said 19.09 acres. But, when the suit came up for trial in the list, they filed Ext.P7, statement dated 19.06.2008 withdrawing O.S.No.122 of 2006 expressing their intention to file a suit for possession on title. These circumstances according to the learned Senior Advocate would indicate that the respondents are not in possession of the suit property and at any rate, the suit property excluding 19.09 acres and hence atleast with respect to the suit property excluding 19.09 acres, the respondents are obliged to pay court fee as provided under Sec.37(1) of the Act.

I have gone through the copy of the plaint in the present suit (Ext.P5) and the relevant documents referred to me. Respondents assert in Ext.P5, plaint that they are co-owners along with the petitioners legally in joint possession of the suit property. They have also referred to Ext.P1, proceeding of the TLB and claimed that the said proceeding recognized the possessory arrangement among the co-owners and directed the 1st petitioner to surrender acres as surplus land. They further state in Ext.P5, plaint that they do not wish to continue the joint ownership and possession. They, therefore claimed partition and separate possession of their share with (future) mesne profits.

Sub-sec. (1) of Sec.37 of the Act applies to a plaintiff,

who has been excluded from possession

of the property sought to be partitioned. Sub-sec. (2) refers to cases of

joint possession.

So far as payment of court fee is concerned, it has to be determined with reference to the averments in the plaint and not with reference to the contentions the defendant has raised in the written statement.

Dealing with Sub-sec. (1) of Sec.37 of the Act it is held in Ayisha v. Kunhimayan Haji and others (1966 (2) ILR Ker 17) though referring to the Madras Court Fees and Suits Valuation Act, Sec.12 (which correspondents to Sec.12 of the Kerala Act) that the question of court fee must be considered in the light of the allegations made in the plaint and a decision on that matter cannot be influenced either by the pleas in the written statement or by the final decision of the suit on merits. The averments made in the plaint will have prima facie to be accepted and a denial or other controversy raised in the written statement by the defendants has absolutely no bearing on the question of considering the court fee that is payable on the plaint.

As regards the question of "exclusion" of joint owner from possession requiring him to pay court fee under Sub-sec. (1) of Sec.37 of the Act, referring to the corresponding provision of the Madras Act it is held in paragraph 19 of Thankamma v. Unniamma Antharjanam (1964 KLT 529) that exclusion from enjoyment of receipt of income is totally different from exclusion from possession and mere appropriation of the profits of the property or even exclusive use or possession of the property by one co-sharer does not amount in law to ''exclusion'' of other co-sharers from possession and that such exclusion will have to be established by the averments in the plaint and other evidence to the same. Again, referring to the relevant provisions of the Tamil Nadu Court Fees and Suits Valuation Act (which I said correspondents to the relevant provisions of the Kerala Act) it is held in Neelavathi and Others Vs. N. Natarajan and Others, that "court fee is payable under Sec.37(1) of the Tamil Nadu Court-fees and Suits Valuation Act if the plaintiff is "excluded" from possession of the property. The general principle of law is that in the case of co-owners, the possession of one is in law possession of all, unless ouster or exclusion is proved.

The expression "exclude" is defined by P.Ramanatha Aiyer in the Law Lexicon, 2nd Edition as meaning, " to shut out, whether by thrusting out or by preventing admission; to debar; to reject; to prohibit; to expel; to reject; to dispossesses".

Even if it is assumed that the petitioners are in exclusive possession of the suit property or any portion of it, for the sake of argument, I am not inclined to think that, that would amount to the respondents being "excluded" from possession as understood in Sec.37(1) of the Act. For such exclusion, there must be a positive act on the part of the petitioners by dispossessing the respondents, or prohibiting them from possessing the property.

So far as Ext.P1, proceeding of the TLB is concerned, the respondents have an explanation in the plaint. The other documents pressed into service are Exts.P4 and P6. In Ext.P4, it is stated that the vendor is unable to look after, possess and enjoy the property due to its location in an interior part of the State and he is assigning his undivided interest in the suit property. The deed also refers to the pending litigation and the willingness of the assignee to continue the litigation to secure peaceful possession of the property. The above recitals in Ext.P4 do not show that the vendor was ''excluded'' possession. It referred to inability of the vendor to look after, possess and enjoy the property for whatever reason it be and the trouble the vendee has to take for peaceful possession and enjoyment. In Ext.P6, the 1st respondent and the assignor of respondents 2 to 5 (under Ext.P3) claimed to be in possession and enjoyment of 19.09 acres and wanted a decree for prohibitory injunction against the 2nd petitioner and others. That suit was withdrawn by Ext.P7 stating that the 1st respondent and Rafeeq intended to file a suit for possession on title.

Assuming that the respondents are not in actual possession of the suit property, that in the light of the decisions referred above and the meaning of the word ''exclude'' occurring in Sub-sec. (1) of Sec.37 of the Act, cannot be understood as amounting to the respondents being ''excluded'' from possession of the property or any portion so that, Sub-sec. (1) of Sec.37 of the Act would apply. I must also understand that the statement in Ext.P7 that the 1st respondent and Rafeeq intended to file a suit for possession on title need not necessarily mean that they admitted that they are ''excluded'' from possession of the property as understood in Sub-sec. (1) of Sec.37 of the Act. That statement can equally mean an intention to sue for separate possession of the property which the 1st respondent and Rafeeq may be entitled to get on partition on the strength of the title claimed by them.

At any rate, so far as a decision on proper court fee is concerned, as held in the decisions I have referred above, what is prima facie to be considered is the averment in the plaint and not the contentions raised in the written statement or, what the court may ultimately have to decide after trial. I am inclined to agree with the finding entered by the learned Sub Judge in Ext.P9, order that the court fee paid by the respondents under Sub-sec. (2) of Sec.37 of the Act on the claim that they are in joint possession of the suit property is legally correct.

I must notice that the issue regarding court fee is a matter, primarily particularly between the plaintiff and the State except when it involves the jurisdiction of the court. Here, the suit is filed in the Sub court. The contention of the petitioners, even if accepted, would not involve any change of jurisdiction of the trial court. The Supreme Court in Lakshmi Ammal Vs. K.M. Madhavakrishnan and Others, has pointed out that the trial courts are not to grapple with peripheral issues like sufficiency of court fee or proper valuation and that they are to devote their time for resolution of more serious disputes involved in the suits. I do not find reason to entertain this Original Petition in challenge of Ext.P9, order. I make it clear that in this Original Petition I have only considered the correctness of Ext.P9, order.

Original Petition is dismissed.