The court determined that in a suit involving recovery of possession and boundary fixation, recovery of possession is the main relief, contrary to the petitioner's claim of it being ancillary.

JUDGMENT

Dated this the 29^th day of February, 2024

Petitioner herein is the plaintiff in the suit O.S.No.47/2008, originally filed before the Munsiff Court, Ponnani, and subsequently transferred to the Sub Court, Tirur, based on pecuniary jurisdiction and re-numbered as O.S.No.20/2014. Petitioner herein is aggrieved by Ext.P3 order of the learned Sub Judge, wherein the prayer of the petitioner/plaintiff to treat an amended relief as ancillary to the main relief sought for in the plaint – for the purpose of court fee - is rejected. The suit, as filed originally was one for fixation of boundary between plaint A and B schedule properties and also for injunction. Pendende lite, the plaint was amended and a relief for recovery of possession as well - in case any extent of land which belongs to the plaintiff is found to be in the possession of the defendants – was incorporated. For the purpose of court fee, the plaintiff/petitioner seeks to treat the amended relief for recovery of possession, as ancillary to the main relief for fixation of boundary and relied upon the Proviso to Section 6 of the Kerala Court Fees and Suits Valuation Act (herein after referred to as 'the Act'). This contention is seen rejected by the impugned Ext.P3 order.

2. Heard Sri.S.V.Balakrishna Iyer, learned Senior Counsel, instructed by Sri.P.B.Krishnan, on behalf of the petitioner and Sri.K.P.Sudheer, learned counsel for the respondents.

3. Inviting the attention of this Court to Section 6 of the Act, it was urged that, if the relief sought for is only ancillary to the main relief, the plaint is liable to be charged only on the value of the main relief. On the scope of the expression “ancillary”, learned Senior relied upon the Law Lexicon by P.Ramanatha Aiyar (Reprint Edition 1987), wherein it is stated thus:

Ancillary. Aiding; Auxiliary; Subordinate; attendant upon; that which aids or promotes a proceeding regarded as the principal. ( Abbott L.D. )(as) ancillary administration; ancillary attachment; ancillary action ( Ency Lond.

Reliance is also placed on Bouvier's Law Dictionary to expatiate the scope of the expression “alternative”, which is treated thus in the said Law Dictionary:

ALTERNATIVE. Allowing a choice between two or more things or acts to be done. In contracts, a party has often the choice which of several things to perform. A writ is in the alternative which commands the defendant to do the thing required, or show the reason wherefore he has not done; Finch 257; S Bla Com. 273. Under the common-law practice, the Art mandamus is an alternative writ; S Bla. Com.111; but in modern practice this writ is often dispensed with and its place is taken by a rule to show cause. See MANDAMUS.

Finally, in Prem's Judicial Dictionary, the term “alternative” is seen explained thus:

Alternative-The one or the other of two things. A privilege of choosing one of two things or courses; either of tow objects offered to one's choice. (Abbott L.Dict. (as) alternative contract; alternative obligation ; alternative remedy etc.

4. Based on the above treatise on the scope of the expressions “ancillary” and “alternative”, it is the submission of the learned Senior Counsel that the amended relief for recovery of possession is only ancillary to the main relief for fixation of boundary. In support of the above contention, the learned Senior Counsel also relied on two judgments of this Court, i.e. State Bank of India, Asset Recovery Management Branch, Ernakulam v. Niyas and Another [2021 (2) KHC 18 (DB)] and Appukuttan v. Kamalakshi [1996(2) KLT 977] .

5. Per contra, learned counsel for the respondent would submit that, a relief for recovery of possession can never be ancillary to a relief for fixation of boundary. It was pointed out that the suit was originally f