SIVA MUTHUBALU CHETTIAR Vs. KATHERASAN CHETTIYAR

JUDGEMENT

(1.) THIS revision is preferred against the order passed in o. S. No. 11 of 2002 (dated 3. 1. 2002) on the file of the District Munsif cum Judicial Magistrate, Ilayangudi , deciding the Preliminary Issue No. 1 and directing the Revision petitioner/plaintiff to pay Court fee u/s 27 (a) of Tamil Nad u Court-Fees and Suits Valuation Act (hereinafter referred to as TNCF & SV act) finding that the Court fee paid u/s 27 (c) is not correct.

(2.) THE suit properties relate to the house properties at the site thereon, bearing D. No. 16 in Iyalankudi Panchayat. Plaintiff and the Defendants 1 to 3 are brothers. THE fourth Defendant is the wife of the first Defendant. Case of the plaintiff is that his brothers, the Defendant 1 to 3 were employed in Malaysia. THE Plaintiff had purchased the suit property from out of his own income by the sale Deed dated 09. 11. 1961. THE Defendants 1 to 3 have not contributed any amount from out of their income. In 1965, the Plaintiff has constructed two houses bearing D. Nos. 16 and 17. While so, claiming D. No. 16 to their house, the fourth Defendant - wife of the first Defendant has created a Othi Deed in favour of the fifth Defendant. THE fourth defendant has no such right to execute the Othi Deed. THE Plaintiff has issued notice to the Defendants 4 and 5. THE Defendants have sent reply, containing false allegations and claiming that Defendants 1 and 3 have contributed money for purchase and construction of D. No. 16. THE second defendant has made a false claim, contending that he had contributed amount for the purchase and construction of D. No. 17. Since the Defendants 1 to 4 are laying false claim to the suit property, the Plaintiff has filed the suit for permanent injunction restraining the Defendants from alienating or creating any charge over the suit property.

(3.) REFERRING to the Written Statement, the learned counsel for the Revision Petitioner/plaintiff has contended that the trial court was not right in referring to the Written Statement and directing the petitioner to pay the Court fee u/s 27 (a) of TNCF & SV Act. It is submitted that the denying should be gathered from the plaint and not from the Written statement. The learned counsel has placed reliance upon AIR 1971 AP 142, 2002 sar Civil 69; 1998 1 CTC 560. It is further contended that when the issues are yet to be framed, the finding of the trial Court directing the Plaintiff to value the suit property at its market value and directing him to pay Court fee u/s 27 (a) TNCF & SV Act is not correct.