When a composite appeal is against the decree in the suit and the decree in the counter claim, what is the effect of non payment of court fee in the appeal against the decree in the counter claim?

2. Defendants 2 to 4 in O.S.No.271 of 1993 of the Munsiff's Court, Kottarakkara, have come up with this second appeal by challenging the judgment and decree passed by the District Court, Kollam in A.S.No.294 of 2006.

3. The suit is one for perpetual injunction restraining the defendants from trespassing into the plaint schedule property and from altering its boundaries and from committing any waste thereon. The defendants raised a counter claim through the written statement claiming a right of easement over the pathway, which commences from the road lying at the northern side of the plaint schedule property and passes through eastern extremity of the plaint schedule property which ends at the property of the defendants. The said pathway is scheduled as the counter claim schedule property. A relief has been sought for, for the declaration of the said easement right.

4. The Munsiff's Court, Kottarakkara, after trial, dismissed the suit and allowed the counter claim. Aggrieved by the judgment and decree, the plaintiff preferred A.S.No.33 of 1998 before the Subordinate Judge's Court, Kottarakkara, which was later withdrawn to the District Court, Kollam. The appeal was re-numbered as A.S.No.294 of 2006 before the District Court, Kollam.

5. The appeal memorandum before the lower appellate court shows that it is a composite appeal preferred against the dismissal of the suit as well as against the decree in the counter claim. The appellant before the lower appellate court has sought for the reversal of the dismissal of the suit and the dismissal of the counter claim. At the same time, the appellant before the lower appellate court had paid court fee under Section 52 read with Section 27(c) of the Kerala Court Fees and Suits Valuation Act alone. Therefore, evidently no court fee was paid in respect of the appeal challenging the decree in the counter claim.

6. This Court has admitted this second appeal on the following substantial questions of law:

"(1) When the evidence establish the existence of an old way through the plaint schedule property from the property of the respondents which reaches the northern public road and the suit was filed suppressing the existence of that way and contending that respondents are attempting to carve out a way, whether the first appellate court was justified in granting a decree for permanent prohibitory injunction, in spite of suppression of material facts?

(2) When in the first appeal the respondents-plaintiff did not pay court fee on the counter claim decreed by the trial court, whether first appellate court was justified in setting aside the decree on the counter claim?"

7. Heard the learned counsel for the appellants and the learned counsel for the respondents.

8. It seems that the lower appellate court has framed one and only issue as follows:

"Whether the findings of the court below, regarding the existence of the way and right of defendants to use the said way, call for any interference?"

Therefore, evidently, the lower appellate court has considered the appeal as one filed by challenging the decree in the counter claim. In the written statement, the counter claim has been valued at Rs.1,000/- and a court fee of Rs.20/- was paid under Section 31 of the Kerala Court Fees and Suits Valuation Act. Even then, the appellant had not paid the said court fee for an appeal against the decree in the counter claim under Section 52 read with Section 31 of the Kerala Court Fees and Suits Valuation Act. The lower appellate court, without taking note of the said fact, has allowed the appeal, by setting aside the judgment and decree passed by the trial court, by granting a decree of perpetual injunction as prayed for by the plaintiff and also by dismissing the counter claim. When no court fee was paid on the appeal a