Thomas P. Joseph, J.

1. Heard. Admitted on the following substantial questions of law:

i. when it is declared by the Apex Court through the decision reported in Sathidevi v. Prasanna and another, 2010 (2) KLT 642 that in a suit for cancellation of a document falling under Sec.40 of the Kerala Court Fees and Suits Valuation Act, 1959 (for short, "the Act") value shown in the document is the value to be taken for the purpose of computing court fee, jurisdiction and suit valuation, is the trial court and lower appellate court justified in accepting the summary valuation of Rs. 15,000/- estimated by the respondent/plaintiff through the market value principle of valuation as against the document value of Rs. 4,55,000/- rendering the findings on valuation illegal and incorrect?

ii. What will be the effect of a finding rendered by a court of law which had apparently no pecuniary jurisdiction and which court notwithstanding challenge to jurisdiction and valuation proceeded with the suit and passed positive decree and what will be the effect of a concurring appellate decision when prior to the appellate judgment, the Apex Court has declared the law on the point correctly?

2. The above questions arise in an appeal brought from concurrent finding and verdict in O.S.No.318 of 2008 of the court of learned Principal Munsiff, Ernakulam and A.S.No.131 of 2010 of the court of learned Principal Sub Judge, Ernakulam.

3. Respondent/plaintiff filed that suit to set aside Ext.B7, sale deed No.2946 of 2005 (a copy of which is marked as Ext.A3) and for a decree for prohibitory injunction against trespass into the suit property. Respondent claimed that he is the owner in possession of 14.16 Ares in survey No.174/7-A2 and 4.21 Ares in survey No.174/7-A1 as per sale deed No.2073 of 1978 ( Ext.A1). The suit property excludes 3.88 Ares respondent had sold as per document No.2072 of 2000 (Ext.A2). Appellant is the sister of respondent. Respondent and the late husband of appellant were engaged in joint business. The husband of appellant was keeping the document of title of the respondent. Respondent learnt that after the death of her husband, appellant fraudulently created document No.2946 of 2005 (its copy is Ext.A3 and the original is Ext.B7) as if respondent transferred the suit property to the appellant. Respondent asserted that he has not executed any such document in favour of the appellant, the document is the result of forgery, that he continued to be in possession of the suit property and hence prayed for the reliefs first above mentioned.

4. Appellant contended that she purchased the suit property as per Ext.B7, assignment deed No.2946 of 2005 executed by the respondent for consideration and is in possession of the said property since the date of assignment. She denied the allegation that the document was forged. She also raised a contention that

"further, the suit is not properly valued and sufficient court fee is not paid. "

5. Trial court framed issue among others,

"Whether the suit is properly valued?"

6. Though, a contention regarding valuation of the suit was raised in the written statement as extracted above, it is not disputed before me that the question was not raised at any time before the trial court started recording of the evidence though the trial court had appointed an Advocate Commissioner who inspected the property and submitted a report that the suit property is agricultural land. Parties adduced evidence on the issues. Issue regarding valuation of the suit was taken up along with other issues while deciding the suit. Trial court observed that the respondent/plaintiff has paid court fee under Sec.40 of the Act, that though the said provision does not directly refer to Sec.7 of the said Act, the market value has to be assessed under Sec.7(2) of the Act. Trial court was of the view that valuation made and court fee paid by the respondent are correct. The issue was answered accordingly. The issue whether assignment deed No.294