NABEESA Vs. KUNHAMI

JUDGEMENT

(1.) What is the proper jurisdictional value to be shown in a suit for partition, where the prayer is for partition and separation of joint possession of the plaint schedule properties . It is the question to be settled in this petition.

(2.) Petitioners are the defendants and respondent the plaintiff. The suit is for partition of the plaint schedule properties comprising 12 items in different survey Numbers. Plaintiff has valued the properties as provided under Section 7 of the Court Fees and Suit Valuation Act, hereinafter referred to as the Act, and shown the total market value at Rs. 2,25,000/- and value of his 1/3rd share at Rs. 75,000/-. Fixed court fee of Rs. 50/- under Section 37(2) of the Act was paid. Petitioners in their written statement contended that the plaint schedule properties are not properly valued for the purpose of court fees and jurisdiction and if properly valued, the same will be out of the pecuniary jurisdiction of the Munsiff Court. Under Ext.P3 order, learned Munsiff answered issue No.2 regarding correctness of the valuation and court fee paid, in favour of respondent. It is challenged in this petition filed under Article 227 of the Constitution of India.

(3.) The argument of Advocate Sri.Gopikrishnan Nambiar, learned Counsel appearing for petitioners is that though respondent has paid fixed court fee under Section 37(2) of the Act and in view of the allegation in the plaint that he is in joint possession of the property, the court fee paid may be correct, the jurisdictional value is incorrect and if properly valued, Munsiff Court has no pecuniary jurisdiction to try the suit. Relying on the decision of this Court in Mukundan v. Nalini 1971 KLT 741 and in Gopalan Nambiar v. Balakriahnan Nambiar 1972 KLT 1087 it was argued that though fixed court fee has to be paid on the value of the share claimed by the plaintiff, as suit governed by Section 37(2) is specifically excluded in Sub-section (2) of Section 1, market value shown in the plaint by computing 10 times the annual gross profits of the properties and the value of the building is incorrect and the valuation should be the market value of the properties as provided under Sub-section (3A) of Section 7 of the Act. Learned Counsel Sri.Kodoth Sreedharan appearing for respondent vehemently argued that a suit for partition coming within the ambit of Section 37(2) of the Act is specifically excluded under Sub-section (2) of Section 7 and Section 53 has been enacted as to how such a suit is to be valued. It was argued that when in a suit for partition coming under Section 37(1), plaint has to be valued as provided under Sub-section (1) of Section 53, when joint possession is alleged in the plaint, it is to be valued as provided under Sub-section (2) of Section 53 and when the case is that the plaintiff is in joint possession of the properties and what is sought for is only separation of the joint possession, the plaint is to be valued for the relief of severance of joint possession and that could only be the value as shown by the plaintiff and therefore the valuation is correct and there is no infirmity in Ext. P3 order warranting interference in exercise of the extra ordinary jurisdiction of this Court under Article 227 of Constitution of India. Learned Counsel also relied on the decision of a learned single Judge of this Court (as His Lordship then was) in Kunju Mohammed Kunju v. Kunju Auwa Ummal 1968 KLT 967.