Court fee in injunction suits, when title is disputed, should be based on market value per statute, not solely on possession.

JUDGMENT

The petitioner is the plaintiff in a suit for permanent prohibitory injunction. He is aggrieved by Ext.P2 order passed by the learned Munsiff, by which he was directed to value the suit and pay court fee in terms of Section 27 (a) of the Kerala Court Fees and Suits Valuation Act, 1959 (hereinafter referred to as “the Act”). Though the suit was originally valued under (c) of the Act, the learned Munsiff passed the impugned order after framing an issue relating to the title of the plaintiff over the plaint-scheduled property.

2. In the plaint, the petitioner asserted that he is the owner in possession of the plaint-scheduled property by virtue of sale deed No.1779/2007 of S.R.O., Alathur. It is alleged that on 29.01.2016, the respondents, who are the defendants in the suit, trespassed into the property, removed the boundary marks, and thereafter levelled the land using a JCB for the purpose of constructing a pathway from the nearby PWD road. According to the petitioner, these acts were carried out by the respondents taking the advantage of a mistake in the survey number mentioned in his sale deed.

3. In the above factual background, the trial court framed an issue as to the title of the petitioner over the plaint-scheduled property, based on the contentions raised in the written statement filed by the respondents. The grievance of the petitioner is that, when the suit is filed solely for permanent prohibitory injunction—which, according to him, is to be decided on the basis of possession and not title—it ought to have been valued only under Section 27 (c) of the Act, irrespective of the contentions raised by the respondents. 4. Heard Sri. Johnson Varikkappallil, the learned counsel appearing for the petitioner.

5. Sri. Johnson Varikkappallil persuasively argued that the plaintiff, being the dominus litis, having framed the suit exclusively for permanent prohibitory injunction based on his possessory right, the direction contained in Ext.P2 order to pay court fee on the market value of the property is wholly unwarranted. Reliance was placed on the decisions inAbdul Razack v. Anjaneyan ( 2002 (2) KLT 670 ),T. Hameed and Others v. T. Abdulla Haji and Others ( 2007 (3) KHC 430 ), andNeelavathi and Others v. N. Natarajan and Others ( AIR 1980 SC 691 ).

6. There can be no dispute that a suit for injunction simpliciter is ordinarily to be decided on the basis of possession of the disputed property and not on the basis of title. However, when the title of the plaintiff is genuinely in dispute, the relief of injunction cannot always be decided solely with reference to possession. In appropriate cases, the court may be compelled to frame an issue relating to the title of the plaintiff in respect of the property in question [see Anathula Sudhakar v. P. Buchi Reddy (Dead) by LRs and Others (AIR 2008 SC 2033)].

7. The necessity of framing an issue arises when a material proposition of fact or law is affirmed by one party and denied by the other. Sub-rule (3) of Rule 1 of Order XIV of the Code of Civil Procedure mandates that each such material proposition shall form the subject of a distinct issue. In the present case, the petitioner has pleaded title as well as possession in the plaint, and if such claim is disputed by the respondents in the written statement, the court is bound to frame an issue regarding title. Significantly, the petitioner has not challenged the correctness of the issue framed by the trial court relating to his title. He has also not produced the written statement before this Court. The present challenge is confined only to Ext.P2 order directing him to pay court fee under Se