Kunjappan @ Sebastian and Others vs Thressia and Others

Bhat, J.—The three appeals arise from the decree and judgment in O. S. No. 151/77 on the file of the Subordinate Judge''s Court, Cochin. The judgment is common to this suit and to other suits. The suit was dismissed but without costs. Defendants 10 to 16 have preferred A. S. No. 338/82 and defendants 2 to 9 have preferred A. S No. 176/83 against certain adverse findings. The plaintiff''s have fired an appeal challenging the dismissal of the suit. In plaintiff''s appeal the registry has raised an objection to the effect that the appeal has to be preferred before the District Court, Ernakulam and not before this Court. This question would naturally arise in the two other appeals also. Therefore the sole question for decision is Which is the forum of appeal?. O. S. No. 151/77 was filed seeking "a declaration'' that the plaintiff''s are the sole owners of the plaint schedule property and in possession of the same" and praying for "a permanent prohibitory injunction restraining the defendants from trespassing into the plaint schedule property and interfering with plaintiff''s possession, right, title or interest". According to the plaintiff''s, the property belonged to their father Vareed and on the death of Vareed, devolved on them exclusively. Defendants 2 to 9 contended that the property was the acquisition of Pethru, father of Vareed and on the death of Pethru, all his children inherited the property. Defendants 2 to 9 are the descendants of a son of Pethru. Defendants 10 to 16 are the descendants of a daughter ''of Pethru. They, contended that the property came to vest in their mother as "sthreedhanam" obtained from her father Pethru. The trial court found that the property belonged to Vareed and now belong exclusively to the plaintiff''s and rejected the contention that the property originally belonged to Pethru or was the "sthreedhanam" property of the mother of defendants 10 to 16. The contention that the plaintiff''s title, if any was barred by limitation was over-ruled. The lower court found the plaintiff''s were not in possession of the property on the date of the suit. However the suit was dismissed on the ground that the plaintiff''s should have claimed consequential relief of possession but did not do so.

The plaintiff''s estimated the market value of the suit property at Rs. 12,000/- and paid court fee on one-half of the said amount viz., Rs 6,000/-The three appeals have been filed in this court apparently on the basis of the market value of the property viz., Rs 12,000/-. If the jurisdictional value of the suit is Rs. 12,000/-, undoubtedly the High Court is the forum of appeal. If, on the other hand, the jurisdictional value of the suit is only Rs. 6,000/-, the District Court is the forum of appeal.

The plaintiff''s paid court fee before the trial court under Section

25 (b) of the Kerala Court Fees and Suits Valuation Act 1959 (for short, the Act). Section 25 deals with suits for declaration. Clause (a) deals with suits for declaration and possession of the property while clause (b) deals with suits for a declaration and for consequential injunction. The relevant part of Section 25 (b) reads thus:

Suits for declaration- In a suit for a declaratory decree or order, whether with or without consequential relief, not falling u/s 26. (b) where the prayer is for a declaration and for consequential injunction and the relief sought is with reference to any immovable property, fee shall be computed on one-half of the market value of the property or on rupees three hundred, whichever is higher

u/s 25(b), in a suit of this nature, fee shall be computed on one-half of the market Value of the property or on Rs. 300/- whichever is higher. In this case the market value of the property has been computed at Rs. 12,000. Therefore fee has to be computed on Rs 6,000/-.

Sub-section [1] of Section 53 of the Act reads thus:

In a suit as to whose value for the purpose of determining the jurisdiction of courts, specific provisions is not otherwise made in this Act or in any other law, value for that purpose and value for the purpose of computing the fee payable under this Act shall be the same.

There are cases where specific provision is made in the Act regarding value of the property for the purpose of jurisdiction There may be other statutes which contain such provision. Those provisions will naturally govern the mode of valuation for the purpose or jurisdiction of suits which are governed by such provisions. In cases which do not attract such provisions prescribing mode of valuation of suits for the purpose of jurisdiction, the principle laid down is section 53(1) will apply, that is, in such cases the valuation for purpose of jurisdiction shall be the same as the valuation for purpose of computing the court fee payable.

There is no contention before us that the Act contains specific provisions or that there is any provision in any other law laying down method of valuation for the purpose of determining the jurisdiction of the court, in a suit of the nature involved in these cases Therefore in these appeals value for the purpose of determining jurisdiction of court and value for the purpose of computing the fee payable under this Act shall be the same.

The value for the purpose of computing the fee payable is one-half of the market value u/s 25 (b) of the Act. By virtue of sub-section (1) of Section 53, the value for the purpose of determining the jurisdiction of court shall be the same viz. one-half of the market value of the property. That is Rs. 6,000/-. Therefore the forum for preferring the appeal is District Court and not the High Court. The matter has come up before us on a reference made by a learned Single Judge of this Court, before whom a suggestion was made that the decision rendered by Janaki Amma, J in Sadasivan v. Chempakkutty Bharathy, 1980 K. L. T. 616 requires re-consideration. In Sadasivan''s case the learned Single Judge held that in a suit of the nature falling u/s 25 (b) of the Act, value for purpose of court fee (whether property has market value) should be adopted for the purpose of jurisdiction, subject to the minimum prescribed in the provision. We are in respectful agreement with the view taken by the learned Single Judge.

The three appeals will be returned for re-presentation to the appropriate court. Time two weeks.

Issue carbon copy or photostat copy of the judgment whichever is available, to appellants in all the three appeals.