Judgment:
ORDER
S.S. Satheesachandran, J.
1. The Writ Petition is filed under Article 227 of the Constitution of India seeking the following reliefs:
1. Pass a writ of certiorari or any other writ or appropriate order quashing Exts. P1 and P2; and
2. Order the respondents to pay the entire costs of the petition to the petitioner.
2. Petitioner is the plaintiff in O.S. No. 877/2007 on the file of the Sub Court, Ernakulam and the respondents are the defendants 2 to 5 in the suit. Suit was one for recovery of possession of A schedule item No. 3 on the strength of the title of the plaintiff from defendants 4 and 5 and also for a declaration that a Will deed and two sale deeds are not valid and binding on the plaintiff. A decree of permanent prohibitory injunction restraining the defendants from trespassing upon plaint A schedule item No. 3 property was also sought for. Suit was originally filed before the Munsiff Court and while pending as such before that court, the plaintiff moved an application for amendment of the relief of recovery of possession by incorporating a prayer that such recovery be granted after dismantling and removing a building unauthorisedly put up in the property by the defendants 4 and 5. Apparently on the basis of the objections raised by the defendants against the proposed amendment in which among other contentions the valuation of the subject matter involved in the suit was also challenged before the proposed amendment was allowed and incorporated in the plaint, the learned Munsiff has directed the plaintiff to take out a commission for ascertaining the correct value of the property. That order was challenged before this Court in Writ Petition No. 26984/07 by the plaintiff and, then, taking note that even as per the proposed amendment the value of the properly was more than Rs. 3 lakhs, this Court directed the learned Munsiff to allow the amendment application and return the plaint for presentation before the appropriate court as the valuation shown exceeded the pecuniary jurisdiction of the Munsiff Court. The learned Munsiff complied with the direction and the plaint, after amendment, was returned to the plaintiff and thereupon it was presented before the Sub Court and numbered as above. Valuation of the suit property was continued to be agitated before the Sub Court since the defendants contended proper value of the building in the property sought to be recovered has not been assessed and shown in the plaint. The learned Sub Judge passed two orders, one dated 14.10.2008 and second one dated 3rd December, 2008 on the question of valuation of the building. In the order dated 14.10.2008, the plaintiff was directed to value the building in item No. 3 and to submit a valuation statement as provided in Kerala Court Fees and Suits Valuation Act. Ext. P1 is copy of that order. The plaintiff submitted a valuation statement showing market value of the land and building as per Section 7 of the above Act. Since the plaintiff has not shown the value of the building as directed by the court, subsequent order dated 3.12.2008 was passed by the learned Sub Judge directing him to comply with the previous order and value the building and pay the court fee payable thereof. Ext. P2 is copy of that order. Impeaching the propriety and correctness of Exts. P1 and P2 orders the plaintiff has filed this Writ Petition seeking aforementioned reliefs invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution.
3. In response to the notice, respondents 1 to 4 (defendants 2 to 5 in the suit) entered appearance.
4. I heard the learned Counsel on both sides. Learned Counsel for the petitioner assailed Exts.Pl and P2 orders as unsustainable under law contending that the direction issued by the learned Sub Judge to assess the value of the building and to pay the court fee payable thereof has been made without taking note of the relief claimed by the plaintiff. Suit was essentially one for recovery of possession of plaint A schedule item No. 3, a property which was trespassed upon and reduced into possession by defendants 4 and 5 in which they have unauthorisedly put up a construction. What was sought for by the plaintiff was the site covered by the unauthorised building after Its dismantling and demolition by the above defendants, and no recovery possession of the building and that being so, the plaintiff is not bound to show the valuation of the building or pay the court fee on such building to get the reliefs claimed in the suit, submits the learned Counsel. Learned Counsel for the respondents, on the other hand contended, in the nature of the relief claimed in the suit, the building has to be valued and the court fee payable thereof has to be remitted by the plaintiff, and the order passed by the learned Sub Judge directing him to file a valuation statement of the building and pay the court fee on its value is proper, valid and correct and it does not call for any interference.
5. A copy of the plaint in the suit was produced for my perusal pursuant to the direction given. Perusing the copy of the plaint, it is noticed that the case of the plaintiff is that the defendants are rank trespassers of A schedule item No. 3 property having an extent of 30 cents over which the plaintiff claimed title and sought the relief of recovery of possession on the strength of title. In the unamended plaint, the plaintiffs have raised an allegation that the defendants 4 and 5 have started construction of a house in that property, but, it is not completed. By the amendment made in the plaint, the relief column alone was amended to state that recovery of possession of property be allowed after dismantling and demolishing the building put up in the property by the defendants 4 and 5. Amendment so allowed and carried out relates back to the date of the suit. The question emerging for consideration is whether in the nature of the plaint allegations and also the relief claimed, recovery of possession of the site but not of the building which is alleged to have been put up by the defendants who are stated to be rank trespassers is the plaintiff bound, to pay court fee on the value of that building also to sustain the relief claimed. What is sought for is only the site and not the building. A super structure has been put up in the property, which, according to the plaintiff, was unauthorised and liable to be removed. True, that building is capable of valuation, but when the site alone after demolition of the building is sought to be recovered, there cannot be any doubt the plaintiff cannot be called upon to pay court fee on the value of the building. In Andugulapat Narasimha Rao v. A. Chenchamma AIR 1962 AP 408 it has been held that where the plaintiff has asked for possession of his land, he need not pay an additional court fee on the relief of demolition of superstructure raised therein by the defendant, as such a relief is ancillary to the relief of possession of the land. He cannot be called upon to pay additional court fee on the value of the building. In Kewal Kishore v. Hamad Ahmad Khan : AIR 1959 Punjab 181 it has been held that in a case of this nature where the plaintiff sets forth a case that structures were put up in the lands sought to be recovered unauthorisedly by the defendant and such structures are liable to be dismantled and recovered if the land is to be given to him the determination of the court fee payable on such suit could not depend upon the defence raised by the defendants. Analysing that question, the High Court of Punjab has held thus:
If the defendants had erected buildings on the land, the transaction regarding which was liable to be impugned by the plaintiff or was successfully impugned by him, they could not by this reason alone compel the plaintiff to pay court fee on the cost of building which had been erected by them.
Such being the position of law, on the question of court fee in respect of land where unauthorised constructions had been put up by trespassers and recovery of the land after demolition of the structures alone is sought as the relief, but not of the buildings the order passed by the learned Sub Judge directing the plaintiff to value the building erected by defendants 4 and 5 in A schedule item No. 3 and to pay the court fee on the value assessed of the building to sustain the relief claimed in the suit cannot be sustained. The directions issued by the learned Sub Judge under Exts. P1 and P2 orders to the extent of ascertaining of the valuation of the building and payment of court fee on the value so assessed shall stand vacated. Valuation of the land covered by A schedule item No. 3 and the court fee thereof is sufficient and that being so, the suit has to proceed as properly valued and the court fee paid as correct.
The Writ Petition is disposed as indicated above.