AMMUNNI AMMA Vs. AMMALU AMMAL

JUDGEMENT

(1.) THE revision petitioners are plaintiffs 1 and 4 in O. S. 55 of 1971 on the file of the Subordinate Judge. Ottappalam. THE suit related to a property described as'valarthukadu' or reared forest, the usual enjoyment of which is by seasonal collection of the green manure and by cutting trees therefrom. THE plaintiffs sued for recovery of possession of the property, damages for cutting and removing trees and other reliefs. As regards the relief of recovery of possession, the plaintiffs valued the suit under S. 30 of the kerala Court-fees Act on capitalising the value of annual profits by way of green manure by 10 times. THE value thus arrived at is Rs. 4000/ -. After the filing of the suit, a commission was issued for assessing the damages, THE commissioner's report showed that there were trees worth Rs. 43,988/ -. THE defendants contested the claim for recovery of possession and damages. Issue no. 10 in the case related to the sufficiency of the valuation and the court-fee paid by the plaintiffs. THE trial court, relying on Para. 2 of the plaint and the report of the commissioner directed the plaintiffs to amend the valuation and pay court-fee on the above amount of Rs. 43,988/ -. THE revision petition is directed against the above order.

(2.) IT is common case that the relevant provision relating to the suit is S. 30, which reads: "suits for possession not otherwise provided for In a suit for possession of immovable property not otherwise provided for, fee shall be computed on the market value of the property or on rupees three hundred, whichever is higher. " The mode of fixing market value is given in S 7. Sub-section (2) of S. 7 reads: "the market value of land in suits falling under s. 25 (a), 25 (b), 27 (a), 29, 30, 37 (1), 37 (2), 38, 45 or 48 shall be deemed to be ten times the annual gross profits of such land where it is capable of yielding annual profits minus the assessment if any made to the Government " According to the plaintiffs, the property being a'valarthukadu', the only annual profits available therefrom are from collection of green manure. The respondents on the other hand, would argue that the mode of enjoyment of the Valarthukadu is by cutting the trees and, therefore, the value of the trees should also be taken into account in determining the market value. In accepting the above contention, the learned subordinate Judge referred to Para. 2 of the plaint wherein the plaintiffs stated that the property sought to be recovered is a'valarthukadu' and it was being enjoyed by the plaintiffs by cutting trees etc. But there is n6 admission by the plaintiffs that trees are being cut in every year.

(3.) THERE are no reported rulings on the point. But a division Bench of this Court had occasion to interpret S. 25 (a) of the Kerala court-Fees Act in C. R. P. 1273 of 1973. S 25 (a) states that where the prayer is for a declaration and for possession of the property to which the declaration relates, fee shall be computed on the market value of the property or on rupees three hundred, whichever is higher. In CRP. 273/ 73, the subject-matter of the suit was a property planted with rubber But none of the trees had started yielding on the date of presentation of the plaint In the absence of an annual income, the market value was fixed at Rs. 300/ -. Objection was raised regarding valuation The trial court directed the plaintiff to take out a commission to assess the market value of the property. This court set aside that order and held that inasmuch as the property was not yielding profits, it was not possible to assess the market value on tie basis of S. 7 (2) and, therefore, under S 25 (a), the suit need be valued only at Rs. 300/ -. The court also observed that being a fiscal enactment, any difficulties disclosed by the provisions of the Act must be considered in favour of the revision petitioner and against the State and that the remedy, if any, consisted in appropriate legislative amendment.