IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 4957 of 2010(O)
1. P.V.BALAKRISHNAN NAIR, AGED 61 YEARS,
... Petitioner
Vs
1. MADATHIL LALITHA DAS,
... Respondent
2. S.DAS, AGED 61 YEARS, S/O. S.D.PANICKER
3. K.GOPALAN NAIR, AGED 56 YEARS,
4. KUNNATH PREMKUMAR, AGED 44 YEARS,
5. K.RAJAGOPALAN,AGED 63 YEARS,
6. V.SANTHKUMARI, AGE 48 YEARS,
7. RAJESH.R., AGED 36 YEARS,
8. ORIKKALAPPATT LEELA, AGED 57 YEARS,
9. CANARA BANK, SSI BRANCH
For Petitioner :SRI.A.BALAGOPALAN
For Respondent :SRI.T.K.VIPINDAS
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :09/12/2010
O R D E R
THOMAS P. JOSEPH, J.
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W.P.(C) No.4957 of 2010
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Dated this the 9th day of December, 2010.
JUDGMENT
Defendant No.2 in O.S.No.218 of 2000 of the court of learned Additional
Sub Judge-I, Kozhikode is the petitioner before me challenging Ext.P4, order
regarding sufficiency of court fee paid by respondent No.1/plaintiff for relief-A in
the plaint. Respondent No.1 filed the suit against petitioner and respondent
Nos.2 to 9 for a declaration that certain sale deeds referred to in the plaint are
null and void, do not affect right, title and interest of respondent No.1 in the suit
property, that respondent No.1 continues to be the owner of the property, for
recovery of possession and other reliefs. For valuation and payment of court fee
relief-A(referred to above) is valued at `.99,996/- being ten times of the annual
gross income less revenue payable for one year (stated in the plaint as `.4/-) and
court fee was paid for relief-A under Section 25(a) of the Court Fees and Suits
Valuation Act (for short, “the Act”). Dispute is regarding valuation of relief-A.
Petitioner and other defendants contended in their written statement that
valuation is not correct and that even the sale deeds which are sought to be
avoided being null and void state consideration for the property as much higher
than the market value stated in the plaint. Learned Sub Judge was not inclined to
accept contention of petitioner and other defendants and referring to the
statement respondent No.1 has filed under Section 10 of the Act found that
market value has been correctly assessed for valuation and court fee for relief-A
and accordingly found the issue in favour of respondent No.1. That order is
under challenge. Learned counsel for petitioner contends that even a perusal of
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the sale deeds sought to be avoided would show that property is valued much
more than the market value stated by respondent No.1. It is also contended
that property is not agricultural land and that there are several buildings
constructed by petitioner and other contesting defendants. Learned counsel for
respondent No.1 supported the order under challenge
2. As referred to earlier, relief-A prayed for a declaration that sale
deeds referred to in the plaint are null and void, do not bind respondent No.1 or
the suit property and a further declaration that respondent No.1 continues to be
the owner of the property. When a document is sought to be avoided as null
and void and declaration of title is prayed for, the suit is to be valued and court
fee is paid under Section 25 of the Act. This is not disputed before me. The
decision in Pankajaksha Kurup v. Fathima & others (1998 (1) KLT
639) is also in that line. Then the question is only whether market value
assessed by respondent No.1 is correct.
3. In the documents which are sought to be avoided as null and void
the property is described as ‘ ‘ (garden land). The extent is 1.66 acres.
That, buildings have been subsequently constructed by the beneficiaries under
the documents which are challenged cannot alter the nature and character of the
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suit. It continues to be agricultural land. Section 7(2) of the Act states the
manner for assessment of market value of agricultural land. That is based on
gross income for ten years less annual revenue payable for the property. In
accordance with that, respondent No.1 has valued relief-A and also filed a
statement under Section 10 of the Act. According to respondent No.1, market
value computed at ten times annual gross profits less annual revenue payable is
`.99,996/-. That has been accepted by the learned Sub Judge. That, the
consideration stated in the documents sought to be avoided is different is of no
consequence since what is germane under Section 7(2) of the Act is gross
income and not the actual value of the property as shown in the documents. I
do not find reason to interfere with the order under challenge.
4. I must also bear in mind that payment of court fee (except when it
affects the jurisdiction of the court) is primarily a matter between plaintiff and
court and that defendants cannot be that much aggrieved by the amount of
court fee paid. Bearing these aspects in mind I do not find reason to interfere.
Other objections as to maintainability of the suit if any raised by petitioner and
other contesting respondents is a matter which the trial court has to decide at the
appropriate stage.
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5. Learned counsel for petitioner states that the case is coming up for
trial this day and that since the matter was pending in this Court and being
disposed of only today, petitioner has not got ready to proceed with trial of the
case. Learned counsel requested that trial court may be directed to postpone
trial till Monday (13.12.2010). The request being reasonable is allowed.
Learned Sub Judge is directed to post the case for trial on 13.12.2010. Registry
shall intimate the learned Sub Judge about that part of this judgment forthwith.
Petition is dismissed.
I.A.No.15950 of 2010 will stand dismissed.
THOMAS P.JOSEPH,
Judge.
cks