Court Fees; K.K. Govindan Vs. K.G. Premsankar [Kerala High Court, 04-11-2016]

Civil Procedure Code, 1908 – S. 149 – Deficiency of Court Fees – When a plaint is presented to a court without the payment of appropriate court-fees payable thereon, undoubtedly the court has the authority to call upon the plaintiff to make payment of the necessary court-fees. Such an authority of the court can be exercised at any stage of the suit.

Court Fees – Lapse of Time – Any amount of lapse of time does not fetter the authority of the court to direct the payment of such deficit court-fees. As a logical corollary, even the plaintiff cannot be said to be barred from paying the deficit court-fees because of the lapse of time.

Cause of Action – Amendment – When the cause of action for the relief of recovery of possession is not different from the cause of action for declaratory relief and injunction sought for in the original plaint, no amendment of the cause of action stated in the plaint is required.

Court Fees and Suits Valuation Act, 1959 (Kerala) – S. 6 (1) – Multifarious Suits – In any suit in which separate and distinct reliefs are sought based on the same cause of action, the plaint shall be chargeable with a fee on the aggregate value of the reliefs. If the relief is sought only as ancillary to the main relief, the plaint shall be charged only on the value of the main relief.

Court Fees and Suit Valuation Act, 1959 (Kerala) – S. 12 – If the court of appeal decides that the fee paid in the lower court was not sufficient, the appellate court shall require the parties liable to pay the deficit court-fees, within a time as may be fixed by it. If the deficit fee is not paid within the time fixed and the default is in respect of a relief which has been dismissed by the lower court, the appeal shall be dismissed.

Court Fees and Suit Valuation Act, 1959 (Kerala) – S. 12 (4) (a) – Whenever a case comes up before a court of appeal, it shall be lawful for the court, either of its own motion or on the application of any of the parties, to consider the correctness of any order passed by the lower court affecting the fee payable on the plaint or in any other proceedings in the lower court and determine the proper fee payable thereon.

Court Fees and Suit Valuation Act, 1959 (Kerala) – S. 12 (4) (b) – If a court of appeal decides that the fee paid in the lower court is not sufficient, the court shall require the party liable to pay the deficit fee within such time as may be fixed by it.

Court Fees and Suit Valuation Act, 1959 (Kerala) – S. 12 (4) (c) – If the deficit fee is not paid within the time fixed and the default is in respect of a relief which has been dismissed by the lower court and which the appellant seeks in appeal, the appeal shall be dismissed, but if the default is in respect of a relief which has been decreed by the lower court, the deficit court-fees shall be recoverable as if it were an arrear of land revenue.

Court Fees and Suit Valuation Act, 1959 (Kerala) – Ss. 12 (4) (c) & 25 (a) – Recovery of Possession – Declaration of Title – Market Value of the Plaint Schedule Property – Directed to file application for amending the valuation and remit the deficit court-fees.

# Plaint

IN THE HIGH COURT OF KERALA AT ERNAKULAM

P.R. RAMACHANDRA MENON & ANIL K. NARENDRAN, JJ.

R.F.A.No.140 of 2010 & Cross Objection No.79 of 2010

DATED THIS THE 4th DAY OF NOVEMBER, 2016

AGAINST THE JUDGMENT IN OS 23/1992 of I ADDL.SUB COURT, THRISSUR DATED 23-12-2009

APPELLANT/IST DEFENDANT

K.K. GOVINDAN (DIED), THRISSUR

BY ADVS.SRI.N.N.SUGUNAPALAN (SR.) SMT.NITA.N.S. SRI.S.SUJIN

RESPONDENT/PLAINTIFF

K.G. PREMSANKAR, IPS, TRANSPORT COMMISSIONER, TRANSPORT COMMISSIONERATE, TRANSTOWERS, VAZHUTHACAUD, THIRUVANANTHAPURAM,

BY ADV. SRI.R.D.SHENOY (SR.) ADV. SRI.S.VINOD BHAT ADV. SRI.LEGITH T.KOTTAKKAL

JUDGMENT

ANIL K. NARENDRAN,J.

This appeal and cross-objection arise out of the judgment and decree of the Subordinate Judge’s Court, Thrissur dated 23.12.2009 in O.S.No.23/1992. It was a suit for declaration and perpetual injunction filed by the plaintiff (the respondent in this appeal) in respect of the plaint schedule property having an extent of 3.93 acres, comprised in Sy.No.4/1 of Madakkathara Village, covered by Ext.A1 settlement deed No.2491/74 of SRO Ollukkara dated 13.5.1974.

2. Pending suit, the 2nd defendant (mother of the plaintiff) died on 24.1.1993. Since the 2nd defendant had executed a will bequeathing the plaint schedule property to the 1st defendant, the trial court found that the suit does not abate even if her second son (the additional 2nd appellant herein) is not brought on record.

3. The original appellant/1st defendant (father of the plaintiff) died during the pendency of this appeal and his second son was impleaded as the additional 2nd appellant, as per the order dated 1.1.2013 in I.A.No.2489/2012.

4. Going by the plaint averments, the plaint schedule property belongs to the plaintiff, which he obtained as per Ext.A1 settlement deed No.2491/74 of SRO Ollukkara dated 13.5.1974. The 1st defendant is the father and the 2nd defendant is the mother of the plaintiff. Since the plaintiff had to go abroad for advance training and higher studies, he executed Ext.A2 power of attorney No.277/83 of SRO Ollukkara dated 18.6.1983 in favour of the 1st defendant, authorising him to sell the plaint schedule property for sufficient consideration. By the end of 1984, the plaintiff returned to India and thereupon, he cancelled Ext.A2 power of attorney, by executing Ext.A3 cancellation deed bearing No.433/85 of SRO Ollukkara dated 28.9.1985. The defendants came to know about the cancellation of Ext.A2 power of attorney immediately after execution of Ext.A3 deed. While the plaintiff was abroad, the 1st defendant was managing the plaint schedule property by virtue of Ext.A2 power of attorney and he does not have any independent right over the said property. On 25.8.1991, the plaintiff came to know that the 1st defendant fraudulently and in violation of the trust reposed on him by the plaintiff, executed Ext.A4 document No.2697/85 of SRO Ollukkara dated 14.6.1985 on the strength of Ext.A2 power of attorney. As per the recitals in Ext.A4 document, the 1st defendant gifted the plaint schedule property to the 2nd defendant. The plaintiff contended that, the 1st defendant has no power to execute a document like Ext.A4 and that, the 2nd defendant did not obtain any right over the said property on the strength of Ext.A4. Therefore, in the plaint, the plaintiff sought for a declaration that, Ext.A4 document No.2697/1985 dated 14.6.1985 of SRO Ollukkara is void ab initio, not binding upon the plaint schedule property or his right, title and interest over the said property and that, he is having absolute right, title and possession over that property. The plaintiff has also sought for a permanent prohibitory injunction restraining the defendants and their men from taking usufructs from the plaint schedule property or interfering with his peaceful possession and enjoyment of the said property or executing any documents concerning the same in the name of any person other than the plaintiff or inducting strangers into the said property or committing any waste therein.

5. The defendants filed a joint written statement, contending that, the plaintiff has not obtained any right over the plaint schedule property as per Ext.A1 document dated 13.5.1974. The said document was never acted upon and was not intended to be acted upon. Ext.A1 document was executed only with a view to escape from the land reforms legislation, by limiting the extent of the holdings. The plaintiff has no right or possession over the plaint schedule property, which continued to be in the possession of the 1st defendant till 14.6.1985, the date on which he delivered the said property to the 2nd defendant on the strength of Ext.A4 deed. Regarding execution of Ext.A2 power of attorney dated 18.6.1983, the defendants contended that the said document was not executed for selling the plaint schedule property. In fact, the 1st defendant was asking the plaintiff to execute a gift deed in respect of the plaint schedule property in favour of the 2nd defendant before he was planning to go abroad. The plaintiff had agreed to do so and he had taken Ext.A1 document with a promise to execute a gift deed in favour of the 2nd defendant. Since the plaintiff was in a hurry to go abroad, he had executed Ext.A2 power of attorney dated 18.6.1983, in favour of the 1st defendant to facilitate transfer of the said property in favour of the 2nd defendant. Ext.A2 power of attorney was executed on 18.6.1983 and the plaintiff reached Paris on 20.6.1983. The 1st defendant had received Ext.A2 power of attorney along with Ext.B5 letter dated 27.5.1985 of the plaintiff. The defendants have also contended that, the plaintiff came to know about the transfer of plaint schedule property in favour of the 2nd defendant, in the year 1985 itself, from his brother Sunil Krishnan (the additional 2nd appellant in this appeal) with whom he had frequent contacts. After coming to know about such transfer, the plaintiff cancelled Ext.A2 power of attorney by Ext.A3 cancellation deed dated 28.9.1985. According to the defendants, the transaction in favour of the 2nd defendant was done with the concurrence of the plaintiff and that, the plaintiff never enjoyed the plaint schedule property. Further, Ext.A4 document dated 14.6.1985 executed by the 1st defendant in favour of the 2nd defendant is perfectly valid, which is binding on the plaintiff. Therefore, the plaintiff is not entitled to get the declaration or injunction as prayed for.

6. Originally, no oral evidence was adduced on the side of the plaintiff, other than marking Exts.A1 to A4. On the side of the defendants, the 1st defendant was examined as DW1 and Exts.B1 to B10 were marked. Ext.C1 commission report dated 22.6.1993 was marked as court exhibit.

7. By the judgment and decree dated 29.2.1996 the trial court decreed O.S.No.23/1992 declaring that Ext.A4 document No.2697/1985 dated 14.6.1985 is invalid and not binding either upon the plaint schedule property or the plaintiff and that, the plaintiff has got right, title and possession over the said property and he is entitled for a perpetual injunction restraining the 1st defendant from taking usufructs from the said property and from obstructing the plaintiff from executing any document concerning that property.

8. Challenging the judgment and decree of the trial court dated 29.2.1996 in O.S.No.23/1992, the 1st defendant filed A.S.No.295/1996 before this Court. As per the order in I.A.No.2549/2003 dated 5.10.2006, the appellant/1st defendant was recorded as the legal representative of the deceased 2nd defendant.

9. By the judgment dated 5.10.2006 in A.S.No.295/1996, this Court set aside the judgment and decree of the trial court and remanded O.S.No.23/1992 for fresh trial, permitting the parties to lead their respective evidence as to the question of limitation and also the alleged obstruction pleaded in the plaint. The application for amendment of plaint, viz., I.A.No.2448/2003 was transmitted to the trial court for its consideration.

10. After the order of remand, the plaintiff amended the plaint as per the order dated 22.9.2007 in I.A.No.91/2007 and I.A.No.2043/2007. By the order in I.A.No.91/2007 the plaint was amended by inserting Para.3(a) and reliefs (aa) and (bb). By the order in I.A.No.2043/2007 Para.8 of the plaint was deleted and Paras.9 and 10 were renumbered as Paras.8 and 9. Further, the description of the property in the plaint schedule was amended by deleting the words “along with a residential building and all standing improvements thereon”.

11. In the amended plaint, the plaintiff contended that, instead of selling the plaint schedule property for consideration, the 1st defendant acted against the welfare of the plaintiff. The 1st defendant has also diverted income from the plaint schedule property and permitted his second son Sunil Krishnan to enjoy the same. When the plaintiff came to know about the mismanagement of the plaint schedule property by the 1st defendant, he executed Ext.A3 cancellation deed dated 28.9.1985. The plaintiff wanted to state all these facts in his written statement filed in O.S.No.1399/1994 on the file of the Munsiff’s Court, Thrissur and accordingly he had narrated all these facts to his counsel. However, while drafting Ext.B3 written statement in that suit, the counsel failed to present these facts in the correct perspective and in the chronological order.

12. As per the amended plaint, the plaintiff sought for an alternative relief of recovery of possession of the plaint schedule property on the basis of his title, if it is found that the defendants are in possession of the said property, and also a declaration that he is the owner having exclusive right, title and interest over that property by virtue of Ext.A1 document No.2491/74 dated 13.5.1974 of SRO Ollukkara and that, the 2nd defendant has not acquired any right, title or interest over that property by virtue of Ext.A4 document No.2697/85 dated 14.6.1985.

13. To the amended plaint, the 1st defendant filed additional written statement contending that, the intention of the 1st defendant to transfer the plaint schedule property to the 2nd defendant had been conveyed in the letters sent to the plaintiff. The allegations that the 1st defendant had diverted the income from the plaint schedule property and allowed his other son to enjoy the income therefrom are all baseless. The fact that the plaintiff came to know about the transaction in favour of the 2nd defendant in the year 1985 itself is evident from Ext.B3 written statement filed by him in O.S.No.1399/1994. It was also contended that, the suit is barred by limitation and that, the plaintiff is not entitled to get any reliefs prayed for.

14. After the remand, the plaintiff was examined as PW1 and PWs 2 and 3 were examined on his side. Exts.A5 to A11 were marked on the side of the plaintiff. On the side of the defendants DW1 (Sunil Krishnan – power of attorney of the 1st defendant) and DW2 were examined and Exts.B11 to B38 were marked. Ext.C2 commission report dated 20.2.2008 was marked as court exhibit.

15. By the judgment and decree dated 23.12.2009 the trial court decreed O.S.No.23/1992 in part, thereby directing the 1st defendant to surrender possession of the plaint schedule property to the plaintiff within two months from the date of judgment, failing which the plaintiff was permitted to seek recovery by filing execution petition. However, the prayers for declaration and prohibitory injunction were declined.

16. The trial court held that the plaintiff is the absolute owner of the plaint schedule property and that, Ext.A4 document executed by the 1st defendant as power of attorney holder is not binding on the plaintiff, since the 1st defendant has exceeded his powers under Ext.A2 power of attorney. However, the trial court found that the plaintiff failed to prove his possession over the plaint schedule property as on the date of institution of the suit. Further, the plaintiff came to know about the execution Ext.A4 document No.2697/85 in the year 1985 itself, as evident from Ext.B3 written statement in O.S.No.1399/1994, and immediately he had executed Ext.A3 cancellation deed dated 28.9.1985. Therefore, the plaintiff ought to have filed the suit for declaration within three years from the date of knowledge. Having failed to do so, the prayer for declaration sought for is barred by limitation. However, the trial court held that, in view of the finding that the plaintiff is the owner of the plaint schedule property, he is entitled to get recovery of possession of the said property, even without a prayer for declaration. In view of the finding that, the plaintiff had no possession over the plaint schedule property as on the date of institution of the suit, the trial court held that he is not entitled for a decree of permanent prohibitory injunction against the defendants from trespassing into the said property. On the contention raised as to improper valuation of the suit and insufficiency of the court-fees paid, the trial court held that, having failed to raise such a plea in the written statement, the 1st defendant cannot raise such a contention at the fag end of the trial.

17. Feeling aggrieved by the judgment and decree of the trial court dated 23.12.2009 in O.S.No.23/1992 the 1st defendant filed this appeal, i.e., R.F.A.No.140/2010 under Section 96 of the Code of Civil Procedure, 1908. During the pendency of this appeal the original appellant/1st defendant died and his second son was impleaded as the additional 2nd appellant, as per order dated 1.1.2013 in I.A.No.2489/2012.

18. On receipt of notice in R.F.A.No.140/2010, the respondent/plaintiff filed Cross Objection No.79/2010, under Order XLI Rule 22 of the Code of Civil Procedure, challenging the findings of the trial court as to the plaintiff’s possession over the plaint schedule property after the execution of Ext.A4 document No.2697/85 and also the finding that, the prayer for declaration sought for is barred by limitation.

19. We heard arguments of the learned Senior Counsel for the additional 2nd appellant (legal heir of the original appellant/1st defendant) and also the learned Senior Counsel for the respondent/plaintiff.

20. In the plaint, the plaintiff claims title and possession over the plaint schedule property on the strength of Ext.A1 document dated 13.5.1974 executed by the 1st defendant in his favour. As per the recitals of Ext.A1 document, the title and possession of the plaint schedule property has been transferred absolutely to the plaintiff, with effect from the date of execution of that document, and the plaintiff has the right to effect mutation of the said property in his name. As per Ext.A1 document, the plaintiff has absolute right to deal with the plaint schedule property. However, any documents executed in this regard during the lifetime of the 1st defendant shall be executed jointly with him.

21. After the execution of Ext.A1 document, the plaintiff has executed Ext.A2 power of attorney dated 18.6.1983 in favour of the 1st defendant. As per the recitals of Ext.A2, the plaintiff obtained title and possession of the plaint schedule property by virtue of Ext.A1 document executed by the 1st defendant in his favour. By Ext.A2 power of attorney, the plaintiff authorised the 1st defendant to execute on his behalf any agreement for sale in respect of the plaint schedule property, either whole or in part, after accepting advance sale consideration, and also to execute sale deed or other documents on his behalf, after accepting balance sale consideration from the parties concerned. Further, 1st defendant has also been authorised to do on behalf of the plaintiff, all necessary acts for registration of such documents with the Sub Registrar Office concerned, and to handover on his behalf, the possession of the plaint schedule property to the party concerned.

22. Ext.A3 is a cancellation deed dated 28.9.1985 executed by the plaintiff cancelling Ext.A2 power of attorney in favour of the 1st defendant. As per the recitals of Ext.A3, the plaintiff cancelled Ext.A2 power of attorney since he found no difficulty in managing the plaint schedule property by himself and when he came to know that the 1st defendant is attempting to create some documents adversely affecting his rights and interests over the plaint schedule property.

23. Ext.A4 is a document dated 14.6.1985 executed by the 1st defendant in favour of the 2nd defendant in respect of the plaint schedule property. The recitals of Ext.A4 document would show that, the 1st defendant has executed the said document in favour of the 2nd defendant as an agent of the plaintiff, as authorised by Ext.A2 power of attorney. The recitals of Ext.A4 document, which is styled as a sale deed executed by the 1st defendant in favour of the 2nd defendant, would show that after execution of Ext.A1 document dated 13.5.1974 by the 1st defendant, the plaintiff obtained absolute title and possession of the plaint schedule property. Though a total sale consideration of Rs.12,000/- is mentioned in Ext.A4 document, as per the recitals of the said document the 1st defendant relinquished the same and transferred the plaint schedule property to the 2nd defendant without any consideration. Therefore, Ext.A4 document can only be treated as a gift deed. As per Ext.A2 power of attorney, the 1st defendant has been authorised only to execute any agreement for sale/sale deed in respect of the plaint schedule property, either whole or in part, after accepting on behalf of the plaintiff, advance sale consideration/balance sale consideration from the party concerned. During chief-examination, the 1st defendant (DW1) has admitted that, he had asked the plaintiff to include the plaint schedule property in his property statement submitted before the Government. According to DW1, he has executed Ext.A4 document based on Ext.A2 power of attorney and the plaintiff’s letter (Ext.B5 dated 27.5.1985). During crossexamination, DW1 has admitted that, possession of the plaint schedule property was given to the plaintiff on execution of Ext.A1 document. (Deposition of the 1st defendant as DW1, recorded on 1.2.1996 and 2.2.1996 – Page Nos.6 & 8) The plaintiff’s letter referred to above dated 27.5.1985 was marked as Ext.B5 during trial. The recitals of the said document would show that, the plaintiff returned the original of Ext.A2 power of attorney to the 1st defendant, as insisted by him. A mere return of the original power of attorney along with Ext.B5 letter would not entitle the 1st defendant to act beyond his authority as an agent of the plaintiff under the said power of attorney. Therefore, while executing Ext.A4 document in favour of the 2 n d defendant, t he 1 st defendant had acted beyond his authority as an agent of the plaintiff under Ext.A2 power of attorney and as such, Ext.A4 document will not bind the plaintiff and he can very well ignore the same. The finding to that effect in the impugned judgment of the trial court is perfectly legal, which warrants no interference in this appeal.

24. As per Order VII Rule 3 of the Code of Civil Procedure, where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property, sufficient to identify it, and in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers. In

# Zarif Ahmad (Died) Through LRs. v. Mohd. Farooq, AIR 2015 SC 1236

the Apex Court held that, the object of Order VII Rule 3 of the Code is that the description of the property must be sufficient to identify it. The property can be identifiable by boundaries or by number in a public record of settlement or survey. Even by plaint map showing the location of the disputed immovable property, it can be described.

25. In the plaint, the plaint schedule property is described as 3 acres and 93 cents of properties comprised in Sy.No.4/1 of Madakkathara Village, as per settlement deed No.2491/1974 of SRO Ollukkara owned and possessed by the plaintiff along with a residential building and all standing improvements thereon. The four boundaries of the plaint schedule property are also described in the plaint. The settlement deed referred to above is one executed by the 1st defendant in favour of the plaintiff, which has been marked as Ext.A1 during trial. By the order dated 22.9.2007 in I.A.No.2043/2007, the description of the property in the plaint schedule was amended by deleting the words “along with a residential building and all standing improvements thereon”.

26. During cross-examination, the plaintiff as PW1 has deposed that the residential building was included in the description of the plaint schedule by an inadvertent mistake and that, the plaint schedule property and the property owned by the 1st defendant are lying contiguously. Ext.C1 report submitted by the Advocate Commissioner would show that, the plaint schedule property can be easily identifiable. The Commissioner has also marked the plaint schedule property in the plan attached to his report, which was prepared with the assistance of the Village Officer. Further, the defendants did not challenge the correctness of the plan so prepared. As such, the trial court rightly accepted the plan and sketch which form part of Ext.C1 report and rejected the contention of the defendants as to the identity of the plaint schedule property.

27. There is no dispute as to the execution of Ext.A1 document by the 1st defendant in favour of the plaintiff. However, DW1 deposed that the plaintiff never got possession over the plaint schedule property on execution of Ext.A1 document. According to him, the said document was executed only with a view to escape from the land reforms legislation by limiting the extent of the holdings. The said version of DW1, however, runs contrary to the specific recitals of Ext.A1 document that, the 1st defendant had transferred on the date of execution of that document, the ownership and possession of the plaint schedule property absolutely to the plaintiff. Further, During crossexamination, DW1 has admitted that, possession of the plaint schedule property was given to the plaintiff on execution of Ext.A1 document. (Deposition of the 1st defendant as DW1, recorded on 1.2.1996 and 2.2.1996 – Page No.8)

28. Similarly, there is no dispute as to the execution of Ext.A2 power of attorney by the plaintiff, authorising the 1st defendant to execute sale agreement/sale deed in respect of the plaint schedule property after accepting on behalf of the plaintiff advance sale consideration/balance sale consideration from the parties concerned. The recitals of Ext.A2 are to the effect that, the plaintiff had obtained absolute title and possession of the plaint schedule property by virtue of Ext.A1 document.

29. It is well settled that, the difference between a settlement deed and gift deed is very thin and narrow, since a settlement deed is substantially a gift deed. In a settlement deed/gift deed properties are transferred voluntarily, gratuitously and absolutely to the settlee/donee, conferring immediate rights over the said properties. No specific form of acceptance of a settlement/gift is prescribed by law. Acceptance can be made impliedly and need not be in express actions or forms. Acceptance need not be taken through actual physical possession. A mere silence of the settlee/donee itself may amount to acceptance.

30. In the instant case, the 1st defendant as DW1 has admitted that, he had executed Ext.A4 document in favour of the 2nd defendant on the strength of Ext.A2 power of attorney. The recitals of Ext.A4 document are to the effect that, the plaintiff had obtained absolute title and possession of the plaint schedule property on the strength of Ext.A1 document. Further, the 1st defendant as DW1 has admitted that, he had asked the plaintiff to include the plaint schedule property in his property statement submitted before the Government. The recitals of the said documents, coupled with the admission made as above by DW1 prove acceptance of the settlement/gift by the plaintiff and also his possession over the plaint schedule property on the strength of Ext.A1 document, which possession continued till the execution of Ext.A4 document in the year 1985.

31. Ext.B9 is the copy of the plaint in O.S.No.256/1978 filed by the plaintiff and the 1st defendant against one Bhaskaran and others. The averments in the said plaint would indicate that, even after execution of Ext.A1 document in favour of the plaintiff, the 1st defendant has retained possession of the plaint schedule property. PW1 has deposed that, he signed Ext.B9 plaint as instructed by his father DW1. Ext.B22 is the copy the decree dated 10.3.1981 of the Sub Court, Thrissur in O.S.No.256/1978, which would show that, the Receiver was directed to handover possession of the plaint schedule property to the 1st defendant herein. Ext.B10 report of the Amin would show that, pursuant to the said decree possession of the plaint schedule property was handed over to the 1st defendant. Relying on these documents the 1st defendant contended that, even after execution of Ext.A1 document he has not parted with the possession of the plaint schedule property.

32. The specific case of the plaintiff is that, while going abroad for attending a training programme and higher studies, he had executed Ext.A2 power of attorney in favour of the 1st defendant to manage the plaint schedule property in his absence and to sell the property for consideration. The recitals of Ext.A2 power of attorney would support the case of the plaintiff that he had obtained possession of the plaint schedule property on the strength of Ext.A1 document and that, he had executed Ext.A2 power of attorney in favour of the 2nd defendant to manage the property in his absence. Further, the recitals of Ext.A4 document executed by the 1st defendant in favour of the 2nd defendant are to the effect that the plaintiff had obtained absolute title and possession of the plaint schedule property on the strength of Ext.A1 document. Therefore, the recitals of Exts.B9, B10 and B22 are not at all sufficient to accept the contention of the 1st defendant that, even after execution of Ext.A1 document he has not parted with possession of the plaint schedule property to the plaintiff, especially when the 1st defendant as DW1 has admitted during cross-examination that, possession of the plaint schedule property was given to the plaintiff on execution of Ext.A1 document.

33. Ext.B2 is the copy of a letter sent by the 1st defendant to the plaintiff, in which the 1st defendant has admitted the execution of Ext.A1 document in favour of the plaintiff, with the intention to transfer title and possession of the plaint schedule property. As per the recitals of Ext.B2 letter sent by the 1st defendant to the plaintiff, the 1st defendant had executed Ext.A1 document in favour of the plaintiff bonafide believing that he is a good human being. But in reality he was not so. Therefore, the 1st defendant demanded the plaintiff to execute a gift deed in respect of the plaint schedule property in favour of the 2nd defendant. The admission made as aforesaid in Ext.B2 letter itself is sufficient to prove that, the 1s t defendant had executed Ext.A1 document with an intention to settle the plaint schedule property in favour of the plaintiff. Further, the recitals of Ext.B2 letter would also support the case of the plaintiff, based on the recitals of Exts.A1, A2 and A4 that, he was in possession of the plaint schedule property as on the date of execution of Ext.A4 document, i.e., as on 14.6.1985.

34. In

# Union of India v. Vasavi Co-op. Housing Society Ltd., (2014) 2 SCC 269

the Apex Court held that, the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. Even if the title set up by the defendants is found against, in the absence of establishment of plaintiff’s own title, plaintiff must be non-suited.

35. Therefore, in a suit for declaration of title and possession, the burden always lies upon the plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff.

36. In the instant case, the recitals of Exts.A1, A2 and A4 would prove the title and possession of the plaint schedule property by the plaintiff. The defendants have not denied the execution of Exts.A1, A2 and A4 documents. The recitals of Ext.A1 deed that, any documents executed by the plaintiff for transfer of the plaint schedule property during the lifetime of the 1st defendant shall be executed jointly with him, does not indicate that the 1st defendant had reserved any right or interest over the said property even after the execution of the said document. The recitals of Ext.A4 document executed by the 1st defendant in favour of the 2nd defendant would prove the plaintiff’s title and possession over the plaint schedule property and that, he was in possession of the said property till 14.6.1985, the date of execution of Ext.A4. The admission made as above by the 1st defendant in Ext.A4 document is sufficient to prove the title and possession of the plaintiff over the plaint schedule property. Further, the admission made in Ext.B2 letter would prove that, the 1st defendant had executed Ext.A1 document with an intention to settle the plaint schedule property in favour of the plaintiff. Therefore, the plaintiff has established a clear case for granting a decree for revovery of possession on title, and the finding to that effect in the impugned judgment is perfectly legal, which warrants no interference in this appeal.

37. Though, in Ext.A3 cancellation deed the plaintiff has stated that, the 1st defendant has not executed any documents in respect of the plaint schedule property on the strength of Ext.A2 power of attorney, in Ext.B3 written statement filed in O.S.No.1399/1994 (a suit filed by the additional 2nd appellant herein before the Munsiff’s Court, Thrissur) the plaintiff has admitted that, when he came to know about misuse of Ext.A2 power of attorney it was cancelled by Ext.A3 cancellation deed. The said admission made in Ext.B3 written statement would show that, the plaintiff has executed Ext.A3 cancellation deed on 28.9.1985, after knowing about the execution of Ext.A4 document dated 14.6.1985 by the 1st defendant in favour of the 2nd defendant, in respect of the plaint schedule property.

38. The plaintiff filed O.S.No.23/1992 before the trial court on 13.12.1991, originally seeking for a declaration that Ext.A4 document dated 14.6.1985 executed by the 1st defendant in favour of the 2nd defendant is void ab initio, not binding upon the plaint schedule property or the right, title and interest of the plaintiff in that property; the said document being beyond the powers of the 1st defendant and that, the plaintiff is having absolute right, title and possession over that property. The plaintiff has also sought for a permanent prohibitory injunction restraining the defendants and their men from taking usufructs from the plaint schedule property or interfering with his peaceful possession and enjoyment of the said property, etc.

39. As per Article 58 of the Limitation Act, 1963, the period of limitation for a suit to obtain any declaration is three years and the period of limitation begins to run when the right sue first accrues. In the

# Board of Trustees of Port Kandla v. Hargovind Jesraj, (2013) 3 SCC 182

following the principle laid down in

# State of Punjab v. Gurdev Singh, (1991) 4 SCC 1

the Apex Court held that, the words ‘right to sue’ ordinarily mean right to seek relief by means of legal proceedings. Generally, the right to sue accrues only when the cause of action arises, i.e., the right to prosecute to obtain relief by legal means. The suit must be instituted when the right asserted in the suit is infringed or when there is unequivocal threat to infringe that right by the defendant against whom the suit is instituted.

40. In

# Daya Singh v. Gurdev Singh, (2010) 2 SCC 124

the Apex Court held that, as per Article 58 of the Limitation Act, in order to obtain any other declaration, the limitation would be three years from the date when the right to sue first accrues. Following the principle laid down by a Three-Judge Bench in

# C.Mohammad Yunus v. Syed Unnissa, AIR 1961 SC 808

the Apex Court held that, the cause of action for the purposes of Article 58 of the Act accrues only when the right asserted in the suit is infringed or there is at least a clear and unequivocal threat to infringe that right.

41. In

# Khatri Hotels (P) Ltd. v Union of India, (2011) 9 SCC 126

the Apex Court held that, while enacting Article 58 of the Limitation Act, 1963, the legislature has designedly made a departure from the language of Article 120 of the Limitation Act, 1908. The word ‘first’ has been used between the words ‘sue’ and ‘accrue’. This would mean that, if the suit is based on multiple cause of action, the period of limitation will begin to run from the date when the right to sue first accrues. To put it differently, successive violation of right will not give rise to fresh cause and the suit will be liable to be dismissed if it is beyond the period of limitation counted from the date when the right to sue first accrued.

42. In the instant case, the evidence on record would clearly establish that the plaintiff has executed Ext.A3 cancellation deed dated 28.9.1985 on coming to know about Ext.A4 document dated 14.6.1985 executed by the 1st defendant in favour of the 2nd defendant, in respect of the plaint schedule property. If that be so, the plaintiff ought to have filed the suit within a period of three years from the year 1985. In the plaint, the plaintiff has stated that, the cause of action for the suit arose on 25.8.1991 when he came to know about Ext.A4 document executed by the 1st defendant in favour of the 2nd defendant and on 27.12.1991 when he was sought to be obstructed by the defendants in taking usufructs and continues therefrom. Since the plaintiff failed to file the suit for declaration within three years from the date when the right to sue first accrued, i.e., the date on which he came to know about Ext.A4 document, the trial court cannot be found fault with in concluding that the declaratory relief sought for is barred by limitation.

43. After the order of remand in A.S.No.295/1996, the plaint was amended as per order dated 22.9.2007 in I.A.No.91/2007, by inserting reliefs (aa) and (bb). By the said amendment, the plaintiff sought for an alternate relief of recovery of possession of the plaint schedule property on the basis of his title, if it is found that the defendants are in possession of the same. The plaintiff has also sought for a declaration that he is the owner having exclusive right, title and interest over the plaint schedule property by virtue of Ext.A1 document dated 13.5.1974 and that, the 2nd defendant has not acquired any right, title or interest over that property by virtue of Ext.A4 document dated 14.6.1985. As far as the prayer for recovery of possession of the plaint schedule property on the strength of title is concerned, as per Article 65 of the Limitation Act, the period of limitation for a suit for possession of immovable property or any interest therein based on title is twelve years and the period begins to run when the possession of the defendant becomes adverse to the plaintiff.

44. In

# Jagat Ram v. Varinder Prakash, (2006) 4 SCC 482

the Apex Court held that, the limitation prescribed under Article 65 of the Limitation Act is twelve years beginning from the date when the possession of the defendant becomes adverse to the plaintiff.

45. Therefore, in a suit for recovery of possession based on title, the limitation begins to run only from the time when the possession of the defendant becomes adverse to the plaintiff, as provided under Article 65 of the Limitation Act, and not from the date on which the plaintiff ceased to be in possession. In a suit for recovery of possession, based on possessory title the plaintiff would be entitled to dispossess the defendant who had dispossessed him from the land in question, within twelve years from the date on which the possession of the defendant becomes adverse to the plaintiff. In such a suit, it is for the defendant to establish that he has perfected title to the land in question by adverse possession for more than twelve years continuously, openly and without any interruption or interference from the plaintiff.

46. In

# Abraham K.J. v. Mariamma Itty, 2016 (3) KHC 718

a Division Bench of this Court held that, as it is clear from Article 65 of the Limitation Act, a right to recover possession of immovable property by a person on the claim of title can be defeated by another person after twelve years if only he establishes that he was holding possession of the property adverse to the person first mentioned. In other words, in a suit for recovery of possession of immovable property based on title, the question of limitation will arise only when the defendant pleads and proves adverse possession for a continuous period of twelve years. If the defendant fails to plead and prove adverse possession for the statutory period, there will be no bar for the plaintiff in getting recovery of possession of the property on the basis of title even after twelve years. In the said decision, the Division Bench has stated in categorical terms that, a claim based on title paramount is a superior claim and it can be defeated only in a manner provided by law.

47. In the instant case, going by the recitals of Exts.A1, A2 and A4 documents, the plaintiff was in possession of the plaint schedule property as on the date of execution of Ext.A4 document, i.e., as on 14.6.1985. If the date of execution of Ext.A4 document is taken as the date on which the possession of the defendants becomes adverse to the plaintiff, the plaintiff could have filed a suit for recovery of possession on the strength of Ext.A1 document within twelve years, as provided under Article 65 of the Limitation Act, i.e., till the year 1997. Therefore, the suit filed on 30.12.1991 is well within the period of 12 years from 14.6.1985. Moreover, in the written statement no plea of adverse possession was set up by the defendants. In the absence of such a plea of adverse possession setup by the defendants, there is no bar on the plaintiff in seeking recovery of possession of the plaint schedule property on the strength of Ext.A1 title even after twelve years from the date of execution/knowledge of E xt.A4 document by the 1 st defendant in favour of the 2 n d defendant. In that view of the matter, the relief of recovery of possession sought for on the strength of Ext.A1 title is not barred by limitation and as such, the trial court cannot be found fault with in granting the plaintiff recovery of possession of the plaint schedule property on the strength of title.

48. In

# Ajudh Raj v. Moti, (1991) 3 SCC 136

the Apex Court held that, if the order has been passed without jurisdiction, the same can be ignored as a nullity, i.e., non est in the eye of the law and it is not necessary to set it aside; and such a suit will be governed by Article 65 of the Limitation Act.

49. In

# State of Maharashtra v. Pravin Jethalal Kamdar (dead) by Lrs. (2000) 3 SCC 460

following the principle laid down by the Constitution Bench in

# Maharao Sahib Shri Bhim Singhji v. Union of India, (1981) 1 SCC 166

the Apex Court held that, when an order/deed is without jurisdiction and a nullity, it was not necessary to seek a declaration about the invalidity of the said order/deed. The fact of the plaintiff having sought such a declaration is of no consequence. When possession has been taken by the defendants pursuant to void documents, Article 65 of the Limitation Act will apply and the limitation to file the suit would be twelve years. When these documents are null and void, ignoring them a suit for possession simpliciter could be filed and in the course of the suit it could be contended that these documents are nullity.

50. In

# Premsingh v. Birbal, (2006) 5 SCC 353

the Apex Court held that, when a document is void ab initio, a decree for setting aside the same would not be necessary as the same is non est in the eye of law, as it would be a nullity.

51. A suit which is essentially a suit for recovery of possession based on title would be governed by Article 65 of the Limitation Act and the mere fact that a declaration of title was also sought for would not bring the said suit within Article 58 or Article 113 of the Limitation Act so as to attract the period of limitation of three years. Therefore, a suit in which declaratory relief as well as recovery of possession are sought for on the basis that that impugned document is void ab initio, can only be viewed as a suit predominantly for recovery of possession, attracting Article 65 of the Limitation Act.

52. In

# Abraham K.J. v. Mariamma Itty, 2016 (3) KHC 718

a Division Bench of this Court held that, when the predominant nature of the suit is one for recovery of possession of property on the strength of title and declaration is only subservient to the main prayer, which is claimed only to dispel the cloud cast on the plaintiffs’ title, Article 58 of the Limitation Act has no application and Article 65 of the said Act applies.

53. Applying the principle laid down in the decisions referred to supra to the facts and circumstances of the instant case, it can only be concluded that, the predominant nature of the suit is one for recovery of possession of the plaint schedule property on the strength of Ext.A1 title and the prayer for declaration is only subservient to the main prayer for recovery of possession, attracting Article 65 of the Limitation Act.

54. The declaratory relief sought for, i.e., a declaration that the plaintiff is the owner having exclusive right, title and interest over the plaint schedule property by virtue of Ext.A1 document and that, the 2nd defendant has not acquired any right, title or interest over that property by virtue of Ext.A4 document, is only subservient to the main prayer of recovery of possession on the strength of Ext.A1 title, which is claimed only to dispel the cloud cast on the plaintiffs’ title over the plaint schedule property. As such Article 65 of the Limitation Act applies and not Article 58. The fact of the plaintiff having sought for such a declaration is of no consequence. When the document is null and void, ignoring the same a suit for possession simpliciter could be filed and in the course of the suit it could be contended that the said document is a nullity.

55. In Ext.A4 document dated 14.6.1985 executed by the 1st defendant in favour of the 2nd defendant it has been admitted that the plaintiff is in possession of the plaint schedule property till the execution of that document, i.e., till 14.6.1985. As per the recitals of Ext.A4, the 1st defendant, as an agent of the plaintiff, put the 2nd defendant in possession of the plaint schedule property on 14.6.1985. Though the plaintiff cancelled Ext.A2 power of attorney by executing Ext.A3 cancellation deed dated 28.9.1985, the plaintiff could not produce any documents to prove his possession of the plaint schedule property after 1985. For seeking the relief of injunction, the plaintiff has to prove possession over the plaint schedule property as on the date of suit. In order to prove such possession, the plaintiff has to prove that he was exercising acts of dominion over the plaint schedule property as on that date, i.e., as on 30.12.1991. The trial court, after analysing the oral evidence of Pws.1 and 2, arrived at a finding that the plaintiff did not get back possession of the plaint schedule property from the second defendant after 1985. Since the plaintiff was not successful in p roving possession of the plaint schedule property as on the date of suit, the trial court has rightly rejected the relief of injunction sought for.

56. Pending suit, the 2nd defendant died on 24.1.1993. The specific case of the 1st defendant was that, during the lifetime of the 2nd defendant she had executed a will bequeathing her right over the plaint schedule property in favour of the 1st defendant. Since the 1st defendant claimed right over the plaint schedule property as a legatee under a will executed by the 2nd defendant, the plaintiff contended that other legal heir of the 2nd defendant (the addl. 2nd appellant herein) need not be impleaded as a party to the suit. The plaintiff as PW1 has deposed that, this Court by the order in A.S.No.295/1996 has recorded the 1st defendant as the legal heir of the deceased 2nd defendant. Further, there is no material to show that the addl. 2nd appellant ever challenged the aforesaid will executed by the 2nd defendant in favour of the 1st defendant. As such, the trial court cannot be found fault with in rejecting the contention raised as to non-impleadment of other le gal heirs of the deceased 2 n d defendant.

57. As per Para.8 of the plaint, the cause of action for the suit arose on 25.8.1991 when the plaintiff came to know about Ext.A4 document executed by the 1st defendant in favour of the 2nd defendant and on 27.12.1991 when the plaintiff was sought to be obstructed by the defendants in taking usufructs and continues therefrom. As we have already noticed, in the written statement no plea of adverse possession was set up by the defendants. In the absence of such a plea, there is no bar on the plaintiff in seeking recovery of possession of the plaint schedule property on the strength of Ext.A1 title, even after twelve years from the date of execution/knowledge of Ext.A4 document by the 1st defendant in favour of the 2nd defendant. After amendment, the relief for recovery of possession is sought for on the strength of Ext.A1 title. The cause of action stated in the plaint is the date of knowledge of Ext.A4 document and also the obstruction caused by the defendants on 27.12.1991. When the cause of action for the relief of recovery of possession is not different from the cause of action for declaratory relief and injunction sought for in the original plaint, no amendment of the cause of action stated in the plaint is required.

58. The plaint before its amendment by the order dated 22.9.2007 in I.A.No.91/2007 contained two reliefs; relief (a) for declaration that Ext.A4 document is void ab initio and relief (b) for injunction. In the plaint, the declaratory relief was valued at ₹ 12,000/-, as provided under Section 25(a) of the Kerala Court Fees and Suit Valuation Act, 1959 and the relief for injunction at ₹ 16,000/-, as provided under Section 27 (c) of the said Act. Therefore, both the reliefs were independently valued and separate court-fees paid. After the amendment, two reliefs were added; relief (aa) for recovery of possession of the plaint schedule property on the basis of Ext.A1 title, if for any reason it is found that defendants are in possession, and relief (bb) for declaration of title by virtue of Ext.A1 title. In the amended plaint, reliefs (aa) and (bb) were neither valued nor any courtfees paid. The valuation of the appeal and the cross-objection is also in respect of reliefs (a) and (b) only.

59. Section 149 of the Code of Civil Procedure, 1908 deals with the power of the court to make up deficiency of court-fees. As per Section 149, where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court-fees has not been paid, the court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such court-fees; and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance.

60. In

# Nawab John A. v. V.N. Subramaniyam, (2012) 7 SCC 738

the Apex Court held that, from the language of Section 149 of the Code of Civil Procedure it follows that when a plaint is presented to a court without the payment of appropriate court-fees payable thereon, undoubtedly the court has the authority to call upon the plaintiff to make payment of the necessary court-fees. Such an authority of the court can be exercised at any stage of the suit. Therefore, any amount of lapse of time does not fetter the authority of the court to direct the payment of such deficit court-fees. As a logical corollary, even the plaintiff cannot be said to be barred from paying the deficit court-fees because of the lapse of time.

61. Section 6 of the Kerala Court Fees and Suits Valuation Act, 1959, deals with multifarious suits. As per sub-section (1) of Section 6, in any suit in which separate and distinct reliefs are sought based on the same cause of action, the plaint shall be chargeable with a fee on the aggregate value of the reliefs. Going by the proviso to sub-section (1) of Section 6, if the relief is sought only as ancillary to the main relief, the plaint shall be charged only on the value of the main relief.

62. Section 12 of the Kerala Court Fees and Suit Valuation Act deals with decisions as to proper fee in any court other than the High Court. As per sub-section (1) of Section 12, in every suit instituted in any court, other than the High Court, the court shall before ordering the plaint to be registered, decide on the materials and allegations contained in the plaint and on the materials contained in the statement, if any, filed under Section 10, the proper court-fees payable thereon, the decision being however subject to review, further review and correction in the manner specified in sub-sections (2) to (5) of Section 12.

63. Sub-section (4) of Section 12 empowers the appellate court to consider either on its own motion or on the application of any of the parties, the correctness of any order of the court below as to proper court fee payable on the plaint. Going by clause (a) to sub-section (4) of Section 12, whenever a case comes up before a court of appeal, it shall be lawful for the court, either of its own motion or on the application of any of the parties, to consider the correctness of any order passed by the lower court affecting the fee payable on the plaint or in any other proceedings in the lower court and determine the proper fee payable thereon. Clause (b) to sub-section (4) of Section 12 provides that, if a court of appeal decides that the fee paid in the lower court is not sufficient, the court shall require the party liable to pay the deficit fee within such time as may be fixed by it. Clause (c) to sub-section (4) of Section 12 provides further that, if the deficit fee is not paid within the time fixed and the default is in respect of a relief which has been dismissed by the lower court and which the appellant seeks in appeal, the appeal shall be dismissed, but if the default is in respect of a relief which has been decreed by the lower court, the deficit court-fees shall be recoverable as if it were an arrear of land revenue.

64. In

# Paramu v. Balan, 2001 (3) KLT 803

a learned Judge of this Court examined the question as regards the power of the appellate court to give direction with respect to the payment of proper court-fees. After referring to sub-section (4) of Section 12 of the Kerala Court Fees and Suit Valuation Act it was held that, the appellate court has ample power to direct payment of deficit court-fees as is done by the lower appellate court.

65. In

# P.P.S. Pillai v. Catholic Syrian Bank, 2000 (3) KLT 629

a Division Bench of this Court held that, sub-section (4) of Section 12 of the Kerala Court Fees and Suit Valuation Act confers jurisdiction on the appellate court to consider either of its own motion or on the application of any of the parties the correctness of the order passed by the trial court affecting the fee payable on the plaint. If the court of appeal decides that the fee paid in the lower court was not sufficient, the appellate court shall require the parties liable to pay the deficit court-fees, within a time as may be fixed by it. The further provision is that, if the deficit fee is not paid within the time fixed and the default is in respect of a relief which has been dismissed by the lower court, the appeal shall be dismissed. The principle laid down in P.P.S. Pillai’s case (supra) has been reiterated by another Division Bench of this Court in

# Peter Cherian v. Abraham, (2007) 4 SCC 680

66. In the instant case, in the amended plaint the plaintiff sought for relief (aa) for recovery of possession of the plaint schedule property on the basis of Ext.A1 title, if for any reason it is found that defendants are in possession, and relief (bb) for declaration of title by virtue of Ext.A1 document. However, reliefs (aa) and (bb) were neither valued nor any court-fees paid. The valuation of this appeal and cross-objection is also in respect of reliefs (a) and (b) only. Therefore, the valuation of the plaint in O.S.No.23/1992, the memorandum of appeal in R.F.A.No.140/2010 and the memorandum of Cross Objection No.79/2010 require to be amended by valuing reliefs (aa) and (bb) on the market value of the plaint schedule property, as shown in the plaint, and paying court-fees for the said reliefs as provided under Section 25(a) of the Kerala Court Fees and Suit Valuation Act, 1959.

67. Accordingly, the appellant is directed to file application for amending the valuation of the memorandum of appeal in R.F.A.No.140/2010 and the plaintiff/cross objector is directed to file applications for amending the valuation of the plaint in O.S.No.23/1992 and the memorandum of Cross Objection No.79/2010, within one month from the date of receipt of a certified copy of this judgment and remit the deficit court-fees along with the said applications, failing which the consequences as provided under clause (c) of sub-section (4) of Section 12 of the Kerala Court Fees and Suit Valuation Act, 1959 would follow.

In the result, the appeal and cross objection fail and are accordingly dismissed. Parties to bear their respective costs.

Comments