A.V. Ramakrishna Pillai, J.

1. The petitioner is the plaintiff in O.S. No. 458/2008 on the file of the Munsiff’s Court Alappuzha. In this petition, the petitioner is challenging the order of the learned Munsiff (dated 28.9.2010) directing amendment of the plaint valuation and payment of deficit court fee on the basis of the market value as contended by the defendant, who is the respondent herein.

2. The petitioner instituted the suit for declaration of his title to the plaint schedule property and also for recovery of possession, after removal of some unauthorised constructions said to have been made by the respondent. The plaint schedule property is described as a portion of C-schedule to a settlement deed, have in an extent of 1.75 Cents. The petitioner valued the suit under Section 25 (d) (ii) at Rs. 1,000/-and paid the court fee accordingly. The respondent objected to the same and produced Exts. B1 to B3 and contended that the market value of the plaint schedule property would be more than Rs. 3 lakhs per cent. The trial court relying on Exts.B1 to B3 and accepting the contention of the respondent, passed the impugned order under Section 7 of the Kerala Court Fees and Suits Valuation Act, 1959, (hereinafter referred to as, ‘the Act) finding that the suit is under valued and directing amendment of the plaint valuation in accordance with the market value and payment of deficit court fee before 15/10/2010.

3. Arguments have been heard.

4. Admittedly, the suit is for declaration of title and for recovery of possession. The subject matter of the suit is immovable property which is capable of valuation. The relevant provision under the Act is Section 25, which reads as follows:-

“25. Suits for declaration.-In a suit for a declaratory decree or order, whether with or without consequential relief, not falling under Section 26-(a) Where the prayer is for a declaration and for possession of the property to which the declaration relates, fee shall be computed on the market value of the property or on [rupees one thousand], whichever is higher.

(b) Where the prayer is for a declaration and for consequential injunction and the relief sought is with reference to any immovable property, fee shall be computed on one-half of the market value of the property or on [rupees one thousand], whichever is higher.

(c) Where the prayer relates to the plaintiff’s exclusive right to use, sell, print or exhibit any mark, name, book, picture, design or other thing and is based on an infringement of such exclusive right, fee shall be computed on the amount at which the relief sought is valued in the plaint or on [rupees on thousand], whichever is higher;

(d) In other cases-

(i) Where the subject-matter of the suit is capable of valuation, fee shall be computed on the market value of the property, and

(ii) Where the subject-matter of the suit is not capable of valuation, fee shall be computed on the amount at which the relief sought is valued in the plaint or on [rupees one thousand], whichever is higher.’’

5. The petitioner valued the suit under Section 25 (d) (ii), which is obviously wrong. Hence, the finding to that extend in the impugned order is legally sustainable. However, the learned Munsiff erred in relaying on Exts.B1 to B3 documents to find that the suit is undervalued. Ext.B1 is a sale deed of 2008 by which, the petitioner had sold 4.25 cents of property to a third party for a sum of Rs1,36,000/-. Ext.B2 is a settlement deed of 1993. Ext.B3 is a copy of the proceedings of the Additional District Magistrate, Alappuzha, by which the fair value of the land comprised in Survey No.285/27-A2 of Aryad south village belonging to the respondent, was fixed at Rs.3,36,000/-per Are. As the plaint schedule property is comprised in the same survey number, the learned Munsiff found that the value of the plaint item would be Rs. 2,38,056/-as on 30/08/2010. It was also observed by the learned Munsiff that if market value of the plaint item is calculate