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

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