PADIKKAL KOZHISSERI SUMANGALA Vs. PADIKKAL KOZHISSERI SYAMALA

JUDGEMENT

(1.) Defendants 5 to 11 in a suit for partition are the appellants. Plaintiffs sued on the assertion that they and defendants are in joint possession. Hence, they paid court fee under Section 37(2) of Kerala Court Fees and Suits Valuation Act, 1959, for short, 'C.F. Act'. The appealing defendants did not claim any share or pay court fee in terms of sub-section (3) of Section 37 of the C.F. Act, but pleaded that they are in exclusive possession of a particular parcel out of the suit properties and that the said parcel cannot be subjected to partition. Alternatively, they claimed reservation in case of partition being ordered. Trial court passed a preliminary decree over-ruling the plea of the appealing defendants as to their exclusive rights. Hence this appeal.

(2.) The plaintiffs and the non-appealing defendants object to this appeal on the ground that it does not lie to this Court. They state that the plaintiffs had valued their share at 1,07,128/- and, therefore, that is the value of the subject matter of the suit and hence, in terms of Section 13 of the Kerala Civil Courts Act, 1957, for short, 'C.C. Act', the appeal would lie only before the District Court and not before the High Court. In support, they rely on the precedent Valsalan v. Kaumudi,1982 KIT 525 .

(3.) Per contra, learned counsel for appellants argued that there is noticeable distinction between the absence of the phrases "value of the subject matter" or "market value" in sub-section (2) of Section 27 of the C.F. Act, while such provisions exist in Section 37(1) of that Act which governs a suit for partition on the plea of the plaintiffs being out of possession. Sections 11 & 13 of the C.C. Act are pointedly relied on to argue that while determination of jurisdiction depends upon the jurisdictional value based on the value of the subject matter of the suit, the payment of court fee under Section 37(2) of the Court Fees Act cannot be treated as conclusive on the issue of jurisdictional value.