K. ABRAHAM MATHEW, J.

1. Defendants 5 and 6 challenge the order of remand passed by the District Judge, Thalassery in A.S. No. 284 of 2005, in which a cross appeal had been filed.

2. In a partition that took place in 1956 plaint schedule item No. 1 (hereinafter referred to as the property in dispute) was kept in common for the benefit of the tavazhi of the plaintiffs. It is possessed and managed by the plaintiffs on behalf of themselves and other members of the tavazhi. Plaint schedule item No. 2 is the northern property adjoining the property in dispute. It is in the possession of the defendants. There is a boundary wall separating the two properties. The defendants trespassed into the property in dispute and made some constructions in their attempt to put up a wall enclosing it. But the attempt was defeated by the plaintiffs and they are still in possession of the property. On these allegations the plaintiffs prayed for a perpetual injunction prohibiting the defendants from trespassing into the property in dispute and for a mandatory injunction directing them to remove the constructions they made in it. The defendants contended that the property in dispute is part of the property which is in their ownership and possession and the plaintiffs' allegation that it is in their possession is false.

3. The trial court came to the conclusion that there is no evidence to prove that the plaintiffs are in possession of the property in dispute and consequently it dismissed the suit. In the appeal the learned District Judge took notice of the fact that though an issue had been raised as to the title of the plaintiffs to the property in dispute, the lower court did not go into the question of title as they had not paid court fees for the trial of that issue. The learned District Judge set aside the judgment and the decree and remanded the suit directing the trial court to give an opportunity to the plaintiffs to remit the court fees for the trial of the above issue. According to the learned counsel for the appellants the order of remand is illegal as the question of title did not come up for consideration during the trial and in the appeal memorandum the plaintiffs challenged only the finding regarding their claim of possession of the property.

4. Heard.

5. There are two items of properties. The property in dispute allegedly belongs to the plaintiffs and the other (item No. 2) admittedly belongs to the defendants. The only prayers made in the suit were perpetual injunction prohibiting trespass into and mandatory injunction directing removal of the construction made in the property in dispute. There was no prayer in relation to plaint schedule item No. 2. It was unnecessary to attach the schedule of item No. 2 to the plaint.

6. The suit is based on possession alone. An issue was framed with regard to the plaintiffs' title (since the defendants denied the plaintiffs' claim that they have title to the property in dispute) though there was no prayer for declaration of plaintiffs' title. But as no court fee was paid to try that issue the trial court refused to consider it. Relying on the decision of the Supreme Court in Anathula Sudhakar vs. P. Buchi Reddy, AIR 2008 SC 2033, the learned District Judge held that trial of that issue was necessary.

7. Assuming that trial of the issue regarding title was necessary, I shall consider what the trial could have done in the situation available in the suit.

8. The plaintiff did not pay court fees for trial of the issue regarding his title as there was no prayer for declaration of his title. But the court framed an issue. Under Section 13 of the Kerala Court Fees and Suits Valuation Act where a party becomes liable to pay additional fee by reason of an issue framed in the suit and he does not pay it, the court shall strike off the issue and proceed to hear and decide the other issues. The trial court should have struck off the issue. But it did not strike it off. That did not entitle the plai