R. Bhaskaran, J.

This revision petition is filed challenging the order passed by the Munsiff Court, Erattupetta in LA. 464/2000 in O.S.494/1999. By the impugned order the Munsiff Court has held that the plaintiffs have to pay court fee under S.25(a) of the Kerala Court Fees and Suits Valuation Act calculating the market value of the property on the basis of S.7 of the said Act. The revision petitioner is the defendant in the suit. According to the defendant the court fee has to be paid under S.40 of the Court Fees Act on the basis of the market value of the property involved in the suit and if the market value is taken into account the Munsiff Court has no jurisdiction to try the case.

2. The suit is for a declaration of the plaintiffs right and possession of the plaint schedule property and that the document dated 15.4.1997 is a sham document and not binding on the property and that the defendant has not obtained by right under the document. There is also a prayer for consequential injunction. The plaintiffs have valued the relief and paid court fee under S.25(b) of the Court Fees Act. The trial court found that the plaintiffs have sought for a declaration of right and possession and therefore S.25(a) of the Court Fees Act is applicable. The plaintiffs were directed to file fresh valuation statement as per S.25(a) and pay the fee as per the same.

3. Learned counsel appearing for the revision petitioner brought to my notice the decision reported in Narayani Ammal v. Sanjeev, 2001 (2) KLT 588. That was a case where the plaintiff had alleged fraud and misrepresentation and prayed for a declaration that the documents are not binding on plaint A and B schedule properties and for consequential injunction. This Court held that since the allegation was that fraud has been played on the plaintiff who was an illiterate lady and she signed the document in question, the document is voidable at the option of the party whose consent was obtained by fraud and not null and void. Therefore the prayer should have been to set aside the document and not to declare the same as invalid. In that view this Court had held that court fee is payable under S.40 of the Court Fees Act and not under S.25(b). In this case there is no fraud or undue influence alleged. But the case is that though document was executed as a sale deed, it was intended to create a security for the amount advanced by the defendant and not as sale deed. It is also stated in the plaint that when the plaintiffs paid Rs. 2,59,250/- on 3.9.97 to the defendant, the defendant executed a sale deed in respect of 50 cents of the property to the plaintiff. There was an agreement to reconvey the remaining property also when the balance amount of Rs. 50,000/- is paid to the defendant. However, when the plaintiffs went to the defendant to pay the balance amount the defendant refused to execute the document.

4. Learned counsel for revision petitioner brought to my notice the decision reported in Moosa v. Moideen, 2001 (1) KLT 183. In that case this Court had held that in the absence of a prayer for specific performance of an agreement to reconvey, the suit was not maintainable. That decision does not deal with the court fee payable in the suit. In this case there is no prayer to set aside the document and the prayer is only for a declaration of plaintiffs right and possession. The only contention was that the valuation of the relief should be on the basis of actual market value of the property under S.40 of the Court Fees Act as even according to the plaintiffs the value of one cent of land is rupees ten thousand. Therefore 25 cents will cost rupees two lakhs fifty thousand in which case the Munsiff Court has no jurisdiction to try the suit. Learned Counsel appearing for respondent on the other hand submits that if the valuation is under S.25(a) of the Court Fees Act, the market value has to be found out under S.7 of the Court Fee Act. It is ten times the annual gross profits of such la