Bhaskaran, J.

The defendant in a suit for mandatory injunction directing him to vacate the house bearing Door No. 13/215 comprised in Sy. No. 298/4 Edakkunni Village is the appellant.

2. The questions of law framed in the second appeal are as follows:

(i) Whether the Courts below were correct in law in entertaining a suit for mandatory injunction for ejectment after having found that the defendant is not a licensee but a trespasser?

(ii) Have not the Courts below erred in relying on the decision of Sant Lai Jain v. avthar Singh (AIR 1985 SC 857) which dealt with the case of a licensee and not a trespasser?

(iii) Whether the Courts below were justified in directing the plaintiff to pay the requisite court fee after the adjudication in the appeal and before the levy of execution proceedings?

(iv) Have not the courts below gone wrong in deciding on the question of court fee after the evidence is recorded on the merits of the claim overlooking the embargo under S.12(2) of the Court Fees Act?

The facts leading to the above questions of law framed in the memorandum of appeal are as follows:

3. The plaintiff was allotted the property described in the plaint schedule as per registered partition deed of the year 1993. The plaintiff and defendant entered into an agreement for sale with respect to the property on 20.7.1994 (Ext. A3 ) for a consideration of Rs. 1.14.000/-. An amount of Rs. 55.000/- was paid in three installments towards the sale consideration. Since the balance amount was not paid no sale deed could be executed. However. the defendant broke open the door after 23.10.1994 and started residing in the house. Though a complaint was made to the police. no action was taken by them.

4. The defendant admitted the agreement but denied the case of trespass. According to the defendant. he was allowed to reside in the house as permitted by the plaintiff on the basis of a mediation talk and he was not a trespasser.

5. It had come out in evidence that the defendant has filed a suit in the Sub Court. Tirur, to get back the advance amount paid by him and there is an order of attachment before judgment of the very same property for the said amount. The trial court found that the defendant has failed to prove that he occupied the building with the permission of the plaintiff and his conduct in filing a suit for return of the money paid showed that he was not interested in enforcement of the agreement of sale. Therefore. the suit was decreed as prayed for.

6. The defendant filed an appeal before the lower appellate court. Before the lower appellate court it was informed that the suit filed by the defendant for return of the advance amount was decreed and the counter claim filed by the plaintiff for damages for use and occupation of the building at the rate of Rs. 750/- per month was also allowed. The appellate court found that though the defendant's case is one of permissive occupation the case of the plaintiff is one of trespass. It was found that the plaintiff was therefore bound to pay the court fee under S.25(a) of the Kerala Court Fees Act treating Rs. 750/- per month as income of the property. The lower appellate court notice the reasoning adopted by the Supreme Court in Sant Lai Jain v. Avtar Singh (AIR 1985 SC 857) and followed it and dismissed the appeal after directing the plaintiff to pay court fee under S.25(a) before the trial court.

7. I heard counsel for the appellant in detail. Though a ground to the effect that the plaintiff was only a co-owner and was not entitled to sue without the other co-owner on the party array is raised in the memorandum of second appeal that was not seriously pressed at the time of argument. It was discussed by the courts below and found that even a co-owner can file a suit for recovery of possession against a trespasser. The counsel for the appellant relied on S.12(2) of the Kerala Court Fees Act and submitted that the question of court fee is to be decided before the evidence is recorded and not l