G P SELVARAJ Vs. P K ABDUL KHADER

JUDGEMENT

(1.) 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.

(2.) 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 Ext.P4, 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.

(3.) 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.