Mohammed Haji vs Kunhahammed Musaliar

V. Chitambaresh, J.—The suit is one for partition of two items of property. The plaintiff and the defendant are brothers. The court fee was paid u/s 37(2) of the Court Fees Act asserting joint possession. The defendant contented in his written statement staked exclusive right over item No.2 property. He contended that he has obtained certificate of purchase in O.A No.12816/1975 from the Land Tribunal, Ottappalam. The defendant in short contended that item No.2 property is not partible. The plaintiff thereupon filed an application for amendment of the plaint. The plaintiff pointed out that the certificate of purchase is not binding on him. He also valued the relief u/s 25(d)(ii) of the Court Fees Act. The court below has by the order impugned held that the plaintiff has to value the suit u/s 25(d)(i) of the Court Fees Act.

It may at one be noticed that the plaintiff is not a party to O.A. No. 12816/1975 granting certificate of purchase to the O.P.(C) No.4177 of 2011 2 defendant. His specific plea in the amendment plaint is that the certificate of purchase is not binding on him. The plaintiff need not seek for cancellation of the purchase certificate under the circumstances. It would suffice if he avoids it and seeks a declaration that it is not binding on him.

The plaintiff was therefore obliged to pay court fee u/s 25(d)2 of the Court Fees Act. A reference to the decision in Usman Kurikkal vs. Parappur Achuthan Nair (2012 (3) KLT 261) is apposite. The plaintiff has valued the amendment plaint at Rs. 1,000/- for this prayer. The valuation of the plaint is proper under the circumstances. Ext.P5 order in O.S No.30/2006 on the file of the Court of the Munsiff Magistrate of Pattambi is set aside. The court below is directed to expedite the suit since it is pretty old. The original petition is allowed. No costs.