Wednesday, 30 November 2016

Whether appellate court has power to direct payment of deficit court fees?

In Paramu v. Balan (2001 (3) KLT 803) a learned

Judge of this Court examined the question as regards the power

of the appellate court to give direction with respect to the
payment of proper court-fees. After referring to sub-section (4)

of Section 12 of the Kerala Court Fees and Suit Valuation Act it

was held that, the appellate court has ample power to direct

payment of deficit court-fees as is done by the lower appellate

court.


       65. In P.P.S. Pillai v. Catholic Syrian Bank (2000 (3)

KLT 629) a Division Bench of this Court held that, sub-section

(4) of Section 12 of the Kerala Court Fees and Suit Valuation Act

confers jurisdiction on the appellate court to consider either of its

own motion or on the application of any of the parties the

correctness of the order passed by the trial court affecting the fee

payable on the plaint. If the court of appeal decides that the fee

paid in the lower court was not sufficient, the appellate court

shall require the parties liable to pay the deficit court-fees, within

a time as may be fixed by it. The further provision is that, if the

deficit fee is not paid within the time fixed and the default is in

respect of a relief which has been dismissed by the lower court,

the appeal shall be dismissed. The principle laid down in P.P.S.

Pillai's case (supra) has been reiterated by another Division

Bench of this Court in Peter Cherian v. Abraham (2007 (4)
SCC 680).
IN THE HIGH COURT OF KERALAAT ERNAKULAM

                                               PRESENT:

                 MR.JUSTICE P.R.RAMACHANDRA MENON
                                                      &
                     MR. JUSTICE ANIL K.NARENDRAN

                4TH DAYOF NOVEMBER 2016

                                          RFA.No. 140 of 2010
                                         

                     K.K.GOVINDAN 
Vs

                     K.G.PREMSANKAR, I



      This appeal and cross-objection arise out of the judgment and

decree of the Subordinate Judge's Court, Thrissur dated 23.12.2009

in O.S.No.23/1992. It was a suit for declaration and perpetual

injunction filed by the plaintiff (the respondent in this appeal) in

respect of the plaint schedule property having an extent of 3.93

acres, comprised in Sy.No.4/1 of Madakkathara Village, covered by

Ext.A1 settlement deed No.2491/74 of SRO Ollukkara dated

13.5.1974.

      2.    Pending suit, the 2nd defendant (mother of the plaintiff)

died on 24.1.1993. Since the 2nd defendant had executed a will

bequeathing the plaint schedule property to the 1st defendant, the

trial court found that the suit does not abate even if her second son

(the additional 2nd appellant herein) is not brought on record.

      3.    The original appellant/1st defendant (father of the

plaintiff) died during the pendency of this appeal and his second son

was impleaded as the additional 2nd appellant, as per the order

dated 1.1.2013 in I.A.No.2489/2012.

       4.     Going by the plaint averments, the plaint schedule

property belongs to the plaintiff, which he obtained as per Ext.A1

settlement deed No.2491/74 of SRO Ollukkara dated 13.5.1974.

The 1st defendant is the father and the 2nd defendant is the

mother of the plaintiff. Since the plaintiff had to go abroad for

advance training and higher studies, he executed Ext.A2 power of

attorney No.277/83 of SRO Ollukkara dated 18.6.1983 in favour

of the 1st defendant, authorising him to sell the plaint schedule

property for sufficient consideration. By the end of 1984, the

plaintiff returned to India and thereupon, he cancelled Ext.A2

power of attorney, by executing Ext.A3 cancellation deed bearing

No.433/85 of SRO Ollukkara dated 28.9.1985. The defendants

came to know about the cancellation of Ext.A2 power of attorney

immediately after execution of Ext.A3 deed. While the plaintiff

was abroad, the 1st defendant was managing the plaint schedule

property by virtue of Ext.A2 power of attorney and he does not

have any independent right over the said property. On

25.8.1991, the plaintiff came to know that the 1st defendant

fraudulently and in violation of the trust reposed on him by the

plaintiff,   executed       Ext.A4 document No.2697/85   of   SRO

Ollukkara dated 14.6.1985 on the strength of Ext.A2 power of

attorney. As per the recitals in Ext.A4 document, the 1st

defendant gifted the plaint schedule property to the 2nd

defendant. The plaintiff contended that, the 1st defendant has no

power to execute a document like Ext.A4 and that, the 2nd

defendant did not obtain any right over the said property on the

strength of Ext.A4. Therefore, in the plaint, the plaintiff sought

for a declaration that, Ext.A4 document No.2697/1985 dated

14.6.1985 of SRO Ollukkara is void ab initio, not binding upon

the plaint schedule property or his right, title and interest over

the said property and that, he is having absolute right, title and

possession over that property. The plaintiff has also sought for a

permanent prohibitory injunction restraining the defendants and

their men from taking usufructs from the plaint schedule property

or interfering with his peaceful possession and enjoyment of the

said property or executing any documents concerning the same

in the name of any person other than the plaintiff or inducting

strangers into the said property or committing any waste therein.

       5.     The defendants filed a joint written statement,

contending that, the plaintiff has not obtained any right over the

plaint schedule property as per Ext.A1 document dated

13.5.1974. The said document was never acted upon and was not

intended to be acted upon. Ext.A1 document was executed only

with a view to escape from the land reforms legislation, by

limiting the extent of the holdings. The plaintiff has no right or

possession over the plaint schedule property, which continued to

be in the possession of the 1st defendant till 14.6.1985, the date

on which he delivered the said property to the 2nd defendant on

the strength of Ext.A4 deed. Regarding execution of Ext.A2 power

of attorney dated 18.6.1983, the defendants contended that the

said document was not executed for selling the plaint schedule

property. In fact, the 1st defendant was asking the plaintiff to

execute a gift deed in respect of the plaint schedule property in

favour of the 2nd defendant before he was planning to go abroad.

The plaintiff had agreed to do so and he had taken Ext.A1

document with a promise to execute a gift deed in favour of the

2nd defendant. Since the plaintiff was in a hurry to go abroad, he

had executed Ext.A2 power of attorney dated 18.6.1983, in

favour of the 1st defendant to facilitate transfer of the said

property in favour of the 2nd defendant. Ext.A2 power of attorney

was executed on 18.6.1983 and the plaintiff reached Paris on

20.6.1983. The 1st defendant had received Ext.A2 power of

attorney along with Ext.B5 letter dated 27.5.1985 of the plaintiff.

The defendants have also contended that, the plaintiff came to

know about the transfer of plaint schedule property in favour of

the 2nd defendant, in the year 1985 itself, from his brother Sunil

Krishnan (the additional 2nd appellant in this appeal) with whom

he had frequent contacts. After coming to know about such

transfer, the plaintiff cancelled Ext.A2 power of attorney by

Ext.A3 cancellation deed dated 28.9.1985. According to the

defendants, the transaction in favour of the 2nd defendant was

done with the concurrence of the plaintiff and that, the plaintiff

never enjoyed the plaint schedule property. Further, Ext.A4

document dated 14.6.1985 executed by the 1st defendant in


favour of the 2nd defendant is perfectly valid, which is binding on

the plaintiff. Therefore, the plaintiff is not entitled to get the

declaration or injunction as prayed for.

       6.     Originally, no oral evidence was adduced on the side of

the plaintiff, other than marking Exts.A1 to A4. On the side of the

defendants, the 1st defendant was examined as DW1 and Exts.B1

to B10 were marked. Ext.C1 commission report dated 22.6.1993

was marked as court exhibit.

       7.     By the judgment and decree dated 29.2.1996 the trial

court decreed O.S.No.23/1992 declaring that Ext.A4 document

No.2697/1985 dated 14.6.1985 is invalid and not binding either

upon the plaint schedule property or the plaintiff and that, the

plaintiff has got right, title and possession over the said property

and he is entitled for a perpetual injunction restraining the 1st

defendant from taking usufructs from the said property and from

obstructing the plaintiff from executing any document concerning

that property.

       8.     Challenging the judgment and decree of the trial court

dated 29.2.1996 in O.S.No.23/1992, the 1st defendant filed

A.S.No.295/1996 before this Court. As per the order in

I.A.No.2549/2003 dated 5.10.2006, the appellant/1st defendant

was recorded as the legal representative of the deceased 2nd

defendant.

       9.     By the judgment dated 5.10.2006 in A.S.No.295/1996,

this Court set aside the judgment and decree of the trial court

and remanded O.S.No.23/1992 for fresh trial, permitting the

parties to lead their respective evidence as to the question of

limitation and also the alleged obstruction pleaded in the plaint.

The application for amendment of plaint, viz., I.A.No.2448/2003

was transmitted to the trial court for its consideration.

       10. After the order of remand, the plaintiff amended the

plaint as per the order dated 22.9.2007 in I.A.No.91/2007 and

I.A.No.2043/2007. By the order in I.A.No.91/2007 the plaint was

amended by inserting Para.3(a) and reliefs (aa) and (bb). By the

order in I.A.No.2043/2007 Para.8 of the plaint was deleted and

Paras.9 and 10 were renumbered as Paras.8 and 9. Further, the

description of the property in the plaint schedule was amended

by deleting the words "along with a residential building and all

standing improvements thereon".

       11. In the amended plaint, the plaintiff contended that,

instead of selling the plaint schedule property for consideration,

the 1st defendant acted against the welfare of the plaintiff. The 1st

defendant has also diverted income from the plaint schedule

property and permitted his second son Sunil Krishnan to enjoy

the same. When the plaintiff came to know about the

mismanagement of the plaint schedule property by the 1st

defendant,       he    executed Ext.A3     cancellation  deed   dated

28.9.1985. The plaintiff wanted to state all these facts in his

written statement filed in O.S.No.1399/1994 on the file of the

Munsiff's Court, Thrissur and accordingly he had narrated all

these facts to his counsel. However, while drafting Ext.B3 written

statement in that suit, the counsel failed to present these facts in

the correct perspective and in the chronological order.

       12. As per the amended plaint, the plaintiff sought for an

alternative relief of recovery of possession of the plaint schedule

property on the basis of his title, if it is found that the defendants

are in possession of the said property, and also a declaration that


he is the owner having exclusive right, title and interest over that

property by virtue of Ext.A1 document No.2491/74 dated

13.5.1974 of SRO Ollukkara and that, the 2nd defendant has not

acquired any right, title or interest over that property by virtue of

Ext.A4 document No.2697/85 dated 14.6.1985.

       13. To the amended plaint, the 1st defendant filed

additional written statement contending that, the intention of the

1st defendant to transfer the plaint schedule property to the 2nd

defendant had been conveyed in the letters sent to the plaintiff.

The allegations that the 1st defendant had diverted the income

from the plaint schedule property and allowed his other son to

enjoy the income therefrom are all baseless. The fact that the

plaintiff came to know about the transaction in favour of the 2nd

defendant in the year 1985 itself is evident from Ext.B3 written

statement filed by him in O.S.No.1399/1994. It was also

contended that, the suit is barred by limitation and that, the

plaintiff is not entitled to get any reliefs prayed for.

       14. After the remand, the plaintiff was examined as PW1

and PWs 2 and 3 were examined on his side. Exts.A5 to A11 were


marked on the side of the plaintiff. On the side of the defendants

DW1 (Sunil Krishnan - power of attorney of the 1st defendant)

and DW2 were examined and Exts.B11 to B38 were marked.

Ext.C2 commission report dated 20.2.2008 was marked as court

exhibit.

       15. By the judgment and decree dated 23.12.2009 the

trial court decreed O.S.No.23/1992 in part, thereby directing the

1st defendant to surrender possession of the plaint schedule

property to the plaintiff within two months from the date of

judgment, failing which the plaintiff was permitted to seek

recovery by filing execution petition. However, the prayers for

declaration and prohibitory injunction were declined.

       16. The trial court held that the plaintiff is the absolute

owner of the plaint schedule property and that, Ext.A4 document

executed by the 1st defendant as power of attorney holder is not

binding on the plaintiff, since the 1st defendant has exceeded his

powers under Ext.A2 power of attorney. However, the trial court

found that the plaintiff failed to prove his possession over the

plaint schedule property as on the date of institution of the suit.


Further, the plaintiff came to know about the execution Ext.A4

document No.2697/85 in the year 1985 itself, as evident from

Ext.B3 written statement in O.S.No.1399/1994, and immediately

he had executed Ext.A3 cancellation deed dated 28.9.1985.

Therefore, the plaintiff ought to have filed the suit for declaration

within three years from the date of knowledge. Having failed to

do so, the prayer for declaration sought for is barred by

limitation. However, the trial court held that, in view of the

finding that the plaintiff is the owner of the plaint schedule

property, he is entitled to get recovery of possession of the said

property, even without a prayer for declaration. In view of the

finding that, the plaintiff had no possession over the plaint

schedule property as on the date of institution of the suit, the

trial court held that he is not entitled for a decree of permanent

prohibitory injunction against the defendants from trespassing

into the said property. On the contention raised as to improper

valuation of the suit and insufficiency of the court-fees paid, the

trial court held that, having failed to raise such a plea in the

written statement, the 1st defendant cannot raise such a

contention at the fag end of the trial.

       17. Feeling aggrieved by the judgment and decree of the

trial court dated 23.12.2009 in O.S.No.23/1992 the 1st defendant

filed this appeal, i.e., R.F.A.No.140/2010 under Section 96 of the

Code of Civil Procedure, 1908. During the pendency of this appeal

the original appellant/1st defendant died and his second son was

impleaded as the additional 2nd appellant, as per order dated

1.1.2013 in I.A.No.2489/2012.

       18. On receipt of notice in R.F.A.No.140/2010, the

respondent/plaintiff filed Cross Objection No.79/2010, under

Order XLI Rule 22 of the Code of Civil Procedure, challenging the

findings of the trial court as to the plaintiff's possession over the

plaint schedule property after the execution of Ext.A4 document

No.2697/85 and also the finding that, the prayer for declaration

sought for is barred by limitation.

       19. We heard arguments of the learned Senior Counsel for

the additional 2nd appellant (legal heir of the original appellant/1st

defendant) and also the learned Senior Counsel for the

respondent/plaintiff.

       20. In the plaint, the plaintiff claims title and possession

over the plaint schedule property on the strength of Ext.A1

document dated 13.5.1974 executed by the 1st defendant in his

favour. As per the recitals of Ext.A1 document, the title and

possession of the plaint schedule property has been transferred

absolutely to the plaintiff, with effect from the date of execution

of that document, and the plaintiff has the right to effect

mutation of the said property in his name. As per Ext.A1

document, the plaintiff has absolute right to deal with the plaint

schedule property. However, any documents executed in this

regard during the lifetime of the 1st defendant shall be executed

jointly with him.

       21. After the execution of Ext.A1 document, the plaintiff

has executed Ext.A2 power of attorney dated 18.6.1983 in favour

of the 1st defendant. As per the recitals of Ext.A2, the plaintiff

obtained title and possession of the plaint schedule property by

virtue of Ext.A1 document executed by the 1st defendant in his

favour. By Ext.A2 power of attorney, the plaintiff authorised the

1st defendant to execute on his behalf any agreement for sale in

respect of the plaint schedule property, either whole or in part,

after accepting advance sale consideration, and also to execute

sale deed or other documents on his behalf, after accepting

balance sale consideration from the parties concerned. Further,

1st defendant has also been authorised to do on behalf of the

plaintiff, all necessary acts for registration of such documents

with the Sub Registrar Office concerned, and to handover on his

behalf, the possession of the plaint schedule property to the party

concerned.

       22. Ext.A3 is a cancellation deed dated 28.9.1985

executed by the plaintiff cancelling Ext.A2 power of attorney in

favour of the 1st defendant. As per the recitals of Ext.A3, the

plaintiff cancelled Ext.A2 power of attorney since he found no

difficulty in managing the plaint schedule property by himself and

when he came to know that the 1st defendant is attempting to

create some documents adversely affecting his rights and

interests over the plaint schedule property.

       23. Ext.A4 is a document dated 14.6.1985 executed by

the 1st defendant in favour of the 2nd defendant in respect of the

plaint schedule property. The recitals of Ext.A4 document would

show that, the 1st defendant has executed the said document in

favour of the 2nd defendant as an agent of the plaintiff, as

authorised by Ext.A2 power of attorney. The recitals of Ext.A4

document, which is styled as a sale deed executed by the 1st

defendant in favour of the 2nd defendant, would show that after

execution of Ext.A1 document dated 13.5.1974 by the 1st

defendant, the plaintiff obtained absolute title and possession of

the plaint schedule property. Though a total sale consideration of

Rs.12,000/- is mentioned in Ext.A4 document, as per the recitals

of the said document the 1st defendant relinquished the same and

transferred the plaint schedule property to the 2nd defendant

without any consideration. Therefore, Ext.A4 document can only

be treated as a gift deed. As per Ext.A2 power of attorney, the 1st

defendant has been authorised only to execute any agreement

for sale/sale deed in respect of the plaint schedule property,

either whole or in part, after accepting on behalf of the plaintiff,

advance sale consideration/balance sale consideration from the

party concerned. During chief-examination, the 1st defendant

(DW1) has admitted that, he had asked the plaintiff to include

the plaint schedule property in his property statement submitted

before the Government. According to DW1, he has executed

Ext.A4 document based on Ext.A2 power of attorney and the

plaintiff's letter (Ext.B5 dated 27.5.1985). During cross-

examination, DW1 has admitted that, possession of the plaint

schedule property was given to the plaintiff on execution of

Ext.A1 document. (Deposition of the 1st defendant as DW1,

recorded on 1.2.1996 and 2.2.1996 - Page Nos.6 & 8) The

plaintiff's letter referred to above dated 27.5.1985 was marked

as Ext.B5 during trial. The recitals of the said document would

show that, the plaintiff returned the original of Ext.A2 power of

attorney to the 1st defendant, as insisted by him. A mere return

of the original power of attorney along with Ext.B5 letter would

not entitle the 1st defendant to act beyond his authority as an

agent of the plaintiff under the said power of attorney. Therefore,

while executing Ext.A4 document in favour of the 2nd defendant,

the 1st defendant had acted beyond his authority as an agent of

the plaintiff under Ext.A2 power of attorney and as such, Ext.A4

document will not bind the plaintiff and he can very well ignore

the same. The finding to that effect in the impugned judgment of

the trial court is perfectly legal, which warrants no interference in

this appeal.

       24. As per Order VII Rule 3 of the Code of Civil Procedure,

where the subject-matter of the suit is immovable property, the


plaint shall contain a description of the property, sufficient to


identify it, and in case such property can be identified by


boundaries or numbers in a record of settlement or survey, the


plaint shall specify such boundaries or numbers. In Zarif Ahmad


(Died) Through LRs. v. Mohd. Farooq (AIR 2015 SC 1236)


the Apex Court held that, the object of Order VII Rule 3 of the


Code is that the description of the property must be sufficient to


identify it. The property can be identifiable by boundaries or by


number in a public record of settlement or survey. Even by plaint


map showing the location of the disputed immovable property, it


can be described.


       25. In the plaint, the plaint schedule property is described

as 3 acres and 93 cents of properties comprised in Sy.No.4/1 of

Madakkathara Village, as per settlement deed No.2491/1974 of

SRO Ollukkara owned and possessed by the plaintiff along with a

residential building and all standing improvements thereon. The

four boundaries of the plaint schedule property are also described

in the plaint. The settlement deed referred to above is one

executed by the 1st defendant in favour of the plaintiff, which has

been marked as Ext.A1 during trial. By the order dated

22.9.2007 in I.A.No.2043/2007, the description of the property in

the plaint schedule was amended by deleting the words "along

with a residential building and all standing improvements

thereon".

       26. During cross-examination, the plaintiff as PW1 has

deposed that the residential building was included in the

description of the plaint schedule by an inadvertent mistake and

that, the plaint schedule property and the property owned by the

1st defendant are lying contiguously. Ext.C1 report submitted by

the Advocate Commissioner would show that, the plaint schedule

property can be easily identifiable. The Commissioner has also

marked the plaint schedule property in the plan attached to his

report, which was prepared with the assistance of the Village

Officer. Further, the defendants did not challenge the correctness

of the plan so prepared. As such, the trial court rightly accepted

the plan and sketch which form part of Ext.C1 report and rejected

the contention of the defendants as to the identity of the plaint

schedule property.

       27. There is no dispute as to the execution of Ext.A1

document by the 1st defendant in favour of the plaintiff. However,

DW1 deposed that the plaintiff never got possession over the

plaint schedule property on execution of Ext.A1 document.

According to him, the said document was executed only with a

view to escape from the land reforms legislation by limiting the

extent of the holdings. The said version of DW1, however, runs

contrary to the specific recitals of Ext.A1 document that, the 1st

defendant had transferred on the date of execution of that

document, the ownership and possession of the plaint schedule

property absolutely to the plaintiff. Further, During cross-

examination, DW1 has admitted that, possession of the plaint

schedule property was given to the plaintiff on execution of

Ext.A1 document. (Deposition of the 1st defendant as DW1,

recorded on 1.2.1996 and 2.2.1996 - Page No.8)

       28. Similarly, there is no dispute as to the execution of

Ext.A2 power of attorney by the plaintiff, authorising the 1st

defendant to execute sale agreement/sale deed in respect of the

plaint schedule property after accepting on behalf of the plaintiff

advance sale consideration/balance sale consideration from the

parties concerned. The recitals of Ext.A2 are to the effect that,

the plaintiff had obtained absolute title and possession of the

plaint schedule property by virtue of Ext.A1 document.

       29. It is well settled that, the difference between a

settlement deed and gift deed is very thin and narrow, since a

settlement deed is substantially a gift deed.    In a settlement

deed/gift deed properties are transferred voluntarily, gratuitously

and absolutely to the settlee/donee, conferring immediate rights

over the said properties. No specific form of acceptance of a

settlement/gift is prescribed by law. Acceptance can be made

impliedly and need not be in express actions or forms.

Acceptance        need     not be taken  through actual   physical


possession.       A mere silence of the settlee/donee itself may

amount to acceptance.

       30. In the instant case, the 1st defendant as DW1 has

admitted that, he had executed Ext.A4 document in favour of the

2nd defendant on the strength of Ext.A2 power of attorney. The

recitals of Ext.A4 document are to the effect that, the plaintiff

had obtained absolute title and possession of the plaint schedule

property on the strength of Ext.A1 document. Further, the 1st

defendant as DW1 has admitted that, he had asked the plaintiff

to include the plaint schedule property in his property statement

submitted before the Government. The recitals of the said

documents, coupled with the admission made as above by DW1

prove acceptance of the settlement/gift by the plaintiff and also

his possession over the plaint schedule property on the strength

of Ext.A1 document, which possession continued till the execution

of Ext.A4 document in the year 1985.

       31. Ext.B9 is the copy of the plaint in O.S.No.256/1978

filed by the plaintiff and the 1st defendant against one Bhaskaran

and others. The averments in the said plaint would indicate that,

even after execution of Ext.A1 document in favour of the plaintiff,

the 1st defendant has retained possession of the plaint schedule

property. PW1 has deposed that, he signed Ext.B9 plaint as

instructed by his father DW1. Ext.B22 is the copy the decree

dated 10.3.1981 of the Sub Court, Thrissur in O.S.No.256/1978,

which would show that, the Receiver was directed to handover

possession of the plaint schedule property to the 1st defendant

herein. Ext.B10 report of the Amin would show that, pursuant to

the said decree possession of the plaint schedule property was

handed over to the 1st defendant. Relying on these documents

the 1st defendant contended that, even after execution of Ext.A1

document he has not parted with the possession of the plaint

schedule property.

       32. The specific case of the plaintiff is that, while going

abroad for attending a training programme and higher studies, he

had executed Ext.A2 power of attorney in favour of the 1st

defendant to manage the plaint schedule property in his absence

and to sell the property for consideration. The recitals of Ext.A2

power of attorney would support the case of the plaintiff that he

had obtained possession of the plaint schedule property on the

strength of Ext.A1 document and that, he had executed Ext.A2

power of attorney in favour of the 2nd defendant to manage the

property in his absence. Further, the recitals of Ext.A4 document

executed by the 1st defendant in favour of the 2nd defendant are

to the effect that the plaintiff had obtained absolute title and

possession of the plaint schedule property on the strength of

Ext.A1 document. Therefore, the recitals of Exts.B9, B10 and

B22 are not at all sufficient to accept the contention of the 1st

defendant that, even after execution of Ext.A1 document he has

not parted with possession of the plaint schedule property to the

plaintiff, especially when the 1st defendant as DW1 has admitted

during cross-examination that, possession of the plaint schedule

property was given to the plaintiff on execution of Ext.A1

document.

       33. Ext.B2 is the copy of a letter sent by the 1st defendant

to the plaintiff, in which the 1st defendant has admitted the

execution of Ext.A1 document in favour of the plaintiff, with the

intention to transfer title and possession of the plaint schedule


property. As per the recitals of Ext.B2 letter sent by the 1st

defendant to the plaintiff, the 1st defendant had executed Ext.A1

document in favour of the plaintiff bonafide believing that he is a

good human being. But in reality he was not so. Therefore, the 1st

defendant demanded the plaintiff to execute a gift deed in

respect of the plaint schedule property in favour of the 2nd

defendant. The admission made as aforesaid in Ext.B2 letter itself

is sufficient to prove that, the 1st defendant had executed Ext.A1

document with an intention to settle the plaint schedule property

in favour of the plaintiff. Further, the recitals of Ext.B2 letter

would also support the case of the plaintiff, based on the recitals

of Exts.A1, A2 and A4 that, he was in possession of the plaint

schedule property as on the date of execution of Ext.A4

document, i.e., as on 14.6.1985.

       34. In Union of India v. Vasavi Co-op. Housing

Society Ltd. (2014 (2) SCC 269) the Apex Court held that, the


plaintiff in a suit for declaration of title and possession could


succeed only on the strength of its own title and that could be


done only by adducing sufficient evidence to discharge the onus




on it, irrespective of the question whether the defendants have


proved their case or not. Even if the title set up by the


defendants is found against, in the absence of establishment of


plaintiff's own title, plaintiff must be non-suited.


       35. Therefore, in a suit for declaration of title and

possession, the burden always lies upon the plaintiff to make out


and establish a clear case for granting such a declaration and the


weakness, if any, of the case set up by the defendants would not


be a ground to grant relief to the plaintiff.


       36. In the instant case, the recitals of Exts.A1, A2 and A4

would prove the title and possession of the plaint schedule

property by the plaintiff. The defendants have not denied the

execution of Exts.A1, A2 and A4          documents. The recitals of

Ext.A1 deed that, any documents executed by the plaintiff for

transfer of the plaint schedule property during the lifetime of the

1st defendant shall be executed jointly with him, does not indicate

that the 1st defendant had reserved any right or interest over the

said property even after the execution of the said document. The

recitals of Ext.A4 document executed by the 1st defendant in

favour of the 2nd defendant would prove the plaintiff's title and

possession over the plaint schedule property and that, he was in

possession of the said property till 14.6.1985, the date of

execution of Ext.A4. The admission made as above by the 1st

defendant in Ext.A4 document is sufficient to prove the title and

possession of the plaintiff over the plaint schedule property.

Further, the admission made in Ext.B2 letter would prove that,

the 1st defendant had executed Ext.A1 document with an

intention to settle the plaint schedule property in favour of the

plaintiff. Therefore, the plaintiff has established a clear case for

granting a decree for revovery of possession on title, and the

finding to that effect in the impugned judgment is perfectly legal,

which warrants no interference in this appeal.

       37. Though, in Ext.A3 cancellation deed the plaintiff has

stated that, the 1st defendant has not executed any documents in

respect of the plaint schedule property on the strength of Ext.A2

power of attorney, in Ext.B3 written statement filed in

O.S.No.1399/1994 (a suit filed by the additional 2nd appellant

herein before the Munsiff's Court, Thrissur) the plaintiff has


admitted that, when he came to know about misuse of Ext.A2

power of attorney it was cancelled by Ext.A3 cancellation deed.

The said admission made in Ext.B3 written statement would show

that, the plaintiff has executed Ext.A3 cancellation deed on

28.9.1985, after knowing about the execution of Ext.A4

document dated 14.6.1985 by the 1st defendant in favour of the

2nd defendant, in respect of the plaint schedule property.

       38. The plaintiff filed O.S.No.23/1992 before the trial court

on 13.12.1991, originally seeking for a declaration that Ext.A4

document dated 14.6.1985 executed by the 1st defendant in

favour of the 2nd defendant is void ab initio, not binding upon the

plaint schedule property or the right, title and interest of the

plaintiff in that property; the said document being beyond the

powers of the 1st defendant and that, the plaintiff is having

absolute right, title and possession over that property. The

plaintiff has also sought for a permanent prohibitory injunction

restraining the defendants and their men from taking usufructs

from the plaint schedule property or interfering with his peaceful

possession and enjoyment of the said property, etc.

       39. As per Article 58 of the Limitation Act, 1963, the

period of limitation for a suit to obtain any declaration is three


years and the period of limitation begins to run when the right


sue first accrues. In the Board of Trustees of Port Kandla v.


Hargovind Jesraj (2013 (3) SCC 182), following the principle


laid down in State of Punjab v. Gurdev Singh (1991 (4) SCC 1)


the Apex Court held that, the words 'right to sue' ordinarily mean


right to seek relief by means of legal proceedings. Generally, the


right to sue accrues only when the cause of action arises, i.e., the


right to prosecute to obtain relief by legal means. The suit must


be instituted when the right asserted in the suit is infringed or


when there is unequivocal threat to infringe that right by the


defendant against whom the suit is instituted.


       40. In Daya Singh v. Gurdev Singh (2010 (2) SCC

124) the Apex Court held that, as per Article 58 of the Limitation

Act, in order to obtain any other declaration, the limitation would

be three years from the date when the right to sue first accrues.

Following the principle laid down by a Three-Judge Bench in

C.Mohammad Yunus v. Syed Unnissa (AIR 1961 SC 808)

the Apex Court held that, the cause of action for the purposes of

Article 58 of the Act accrues only when the right asserted in the

suit is infringed or there is at least a clear and unequivocal threat

to infringe that right.

       41. In Khatri Hotels (P) Ltd. v Union of India (2011

(9) SCC 126) the Apex Court held that, while enacting Article 58

of the Limitation Act, 1963, the legislature has designedly made a

departure from the language of Article 120 of the Limitation Act,

1908. The word 'first' has been used between the words 'sue' and

'accrue'. This would mean that, if the suit is based on multiple

cause of action, the period of limitation will begin to run from the

date when the right to sue first accrues. To put it differently,

successive violation of right will not give rise to fresh cause and

the suit will be liable to be dismissed if it is beyond the period of

limitation counted from the date when the right to sue first

accrued.

       42. In the instant case, the evidence on record would

clearly    establish      that the plaintiff has   executed   Ext.A3

cancellation deed dated 28.9.1985 on coming to know about


Ext.A4 document dated 14.6.1985 executed by the 1st defendant

in favour of the 2nd defendant, in respect of the plaint schedule

property. If that be so, the plaintiff ought to have filed the suit

within a period of three years from the year 1985. In the plaint,

the plaintiff has stated that, the cause of action for the suit arose

on 25.8.1991 when he came to know about Ext.A4 document

executed by the 1st defendant in favour of the 2nd defendant and

on 27.12.1991 when he was sought to be obstructed by the

defendants in taking usufructs and continues therefrom. Since

the plaintiff failed to file the suit for declaration within three years

from the date when the right to sue first accrued, i.e., the date

on which he came to know about Ext.A4 document, the trial court

cannot be found fault with in concluding that the declaratory

relief sought for is barred by limitation.

       43. After the order of remand in A.S.No.295/1996, the

plaint    was amended as          per     order dated 22.9.2007       in

I.A.No.91/2007, by inserting reliefs (aa) and (bb). By the said

amendment, the plaintiff sought for an alternate relief of recovery

of possession of the plaint schedule property on the basis of his

title, if it is found that the defendants are in possession of the

same. The plaintiff has also sought for a declaration that he is the

owner having exclusive right, title and interest over the plaint

schedule property by virtue of Ext.A1 document dated 13.5.1974

and that, the 2nd defendant has not acquired any right, title or

interest over that property by virtue of Ext.A4 document dated

14.6.1985. As far as the prayer for recovery of possession of the

plaint schedule property on the strength of title is concerned, as

per Article 65 of the Limitation Act, the period of limitation for a

suit for possession of immovable property or any interest therein

based on title is twelve years and the period begins to run when

the possession of the defendant becomes adverse to the plaintiff.

       44. In Jagat Ram v. Varinder Prakash (2006 (4) SCC

482) the Apex Court held that, the limitation prescribed under

Article 65 of the Limitation Act is twelve years beginning from the

date when the possession of the defendant becomes adverse to

the plaintiff.

       45. Therefore, in a suit for recovery of possession based

on title, the limitation begins to run only from the time when the

possession of the defendant becomes adverse to the plaintiff, as

provided under Article 65 of the Limitation Act, and not from the

date on which the plaintiff ceased to be in possession. In a suit

for recovery of possession, based on possessory title the plaintiff

would be entitled to dispossess the defendant who had

dispossessed him from the land in question, within twelve years

from the date on which the possession of the defendant becomes

adverse to the plaintiff. In such a suit, it is for the defendant to

establish that he has perfected title to the land in question by

adverse possession for more than twelve years continuously,

openly and without any interruption or interference from the

plaintiff.

       46. In Abraham K.J. v. Mariamma Itty (2016 (3) KHC

718) a Division Bench of this Court held that, as it is clear from

Article 65 of the Limitation Act, a right to recover possession of

immovable property by a person on the claim of title can be

defeated by another person after twelve years if only he

establishes that he was holding possession of the property

adverse to the person first mentioned. In other words, in a suit

for recovery of possession of immovable property based on title,

the question of limitation will arise only when the defendant

pleads and proves adverse possession for a continuous period of

twelve years. If the defendant fails to plead and prove adverse

possession for the statutory period, there will be no bar for the

plaintiff in getting recovery of possession of the property on the

basis of title even after twelve years. In the said decision, the

Division Bench has stated in categorical terms that, a claim based

on title paramount is a superior claim and it can be defeated only

in a manner provided by law.

       47. In the instant case, going by the recitals of Exts.A1,

A2 and A4 documents, the plaintiff was in possession of the plaint

schedule property as on the date of execution of Ext.A4

document, i.e., as on 14.6.1985. If the date of execution of

Ext.A4 document is taken as the date on which the possession of

the defendants becomes adverse to the plaintiff, the plaintiff

could have filed a suit for recovery of possession on the strength

of Ext.A1 document within twelve years, as provided under

Article 65 of the Limitation Act, i.e., till the year 1997. Therefore,

the suit filed on 30.12.1991 is well within the period of 12 years

from 14.6.1985. Moreover, in the written statement no plea of

adverse possession was set up by the defendants. In the absence

of such a plea of adverse possession setup by the defendants,

there is no bar on the plaintiff in seeking recovery of possession

of the plaint schedule property on the strength of Ext.A1 title

even after twelve years from the date of execution/knowledge of

Ext.A4 document by the 1st defendant in favour of the 2nd

defendant. In that view of the matter, the relief of recovery of

possession sought for on the strength of Ext.A1 title is not barred

by limitation and as such, the trial court cannot be found fault

with in granting the plaintiff recovery of possession of the plaint

schedule property on the strength of title.

       48. In Ajudh Raj v. Moti (1991 (3) SCC 136) the Apex

Court held that, if the order has been passed without jurisdiction,

the same can be ignored as a nullity, i.e., non est in the eye of

the law and it is not necessary to set it aside; and such a suit will

be governed by Article 65 of the Limitation Act.

       49. In State of Maharashtra v. Pravin Jethalal

Kamdar (dead) by Lrs. (2000 (3) SCC 460), following the

principle laid down by the Constitution Bench in Maharao Sahib

Shri Bhim Singhji v. Union of India (1981 (1) SCC 166) the Apex

Court held that, when an order/deed is without jurisdiction and a

nullity, it was not necessary to seek a declaration about the

invalidity of the said order/deed. The fact of the plaintiff having

sought such a declaration is of no consequence. When possession

has been taken by the defendants pursuant to void documents,

Article 65 of the Limitation Act will apply and the limitation to file

the suit would be twelve years. When these documents are null

and void, ignoring them a suit for possession simpliciter could be

filed and in the course of the suit it could be contended that these

documents are nullity.

       50. In Premsingh v. Birbal (2006 (5) SCC 353) the

Apex Court held that, when a document is void ab initio, a decree

for setting aside the same would not be necessary as the same is

non est in the eye of law, as it would be a nullity.

       51. A suit which is essentially a suit for recovery of

possession based on title would be governed by Article 65 of the

Limitation Act and the mere fact that a declaration of title was

also sought for would not bring the said suit within Article 58 or

Article 113 of the Limitation Act so as to attract the period of

limitation of three years. Therefore, a suit in which declaratory

relief as well as recovery of possession are sought for on the

basis that that impugned document is void ab initio, can only be

viewed as a suit predominantly for recovery of possession,

attracting Article 65 of the Limitation Act.

       52. In Abraham K.J. v. Mariamma Itty (2016 (3) KHC

718) a Division Bench of this Court held that, when the

predominant nature of the suit is one for recovery of possession

of property on the strength of title and declaration is only

subservient to the main prayer, which is claimed only to dispel

the cloud cast on the plaintiffs' title, Article 58 of the Limitation

Act has no application and Article 65 of the said Act applies.

       53. Applying the principle laid down in the decisions

referred to supra to the facts and circumstances of the instant

case, it can only be concluded that, the predominant nature of

the suit is one for recovery of possession of the plaint schedule

property on the strength of Ext.A1 title and the prayer for

declaration is only subservient to the main prayer for recovery of

possession, attracting Article 65 of the Limitation Act.

       54. The declaratory relief sought for, i.e., a declaration

that the plaintiff is the owner having exclusive right, title and

interest over the plaint schedule property by virtue of Ext.A1

document and that, the 2nd defendant has not acquired any right,

title or interest over that property by virtue of Ext.A4 document,

is only subservient to the main prayer of recovery of possession

on the strength of Ext.A1 title, which is claimed only to dispel the

cloud cast on the plaintiffs' title over the plaint schedule property.

As such Article 65 of the Limitation Act applies and not Article 58.

The fact of the plaintiff having sought for such a declaration is of

no consequence. When the document is null and void, ignoring

the same a suit for possession simpliciter could be filed and in the

course of the suit it could be contended that the said document is

a nullity.

       55. In Ext.A4 document dated 14.6.1985 executed by the

1st defendant in favour of the 2nd defendant it has been admitted

that the plaintiff is in possession of the plaint schedule property

till the execution of that document, i.e., till 14.6.1985. As per the

recitals of Ext.A4, the 1st defendant, as an agent of the plaintiff,

put the 2nd defendant in possession of the plaint schedule

property on 14.6.1985. Though the plaintiff cancelled Ext.A2

power of attorney by executing Ext.A3 cancellation deed dated

28.9.1985, the plaintiff could not produce any documents to

prove his possession of the plaint schedule property after 1985.

For seeking the relief of injunction, the plaintiff has to prove

possession over the plaint schedule property as on the date of

suit. In order to prove such possession, the plaintiff has to prove

that he was exercising acts of dominion over the plaint schedule

property as on that date, i.e., as on 30.12.1991. The trial court,

after analysing the oral evidence of Pws.1 and 2, arrived at a

finding that the plaintiff did not get back possession of the plaint

schedule property from the second defendant after 1985. Since

the plaintiff was not successful in proving possession of the plaint

schedule property as on the date of suit, the trial court has

rightly rejected the relief of injunction sought for.

       56. Pending suit, the 2nd defendant died on 24.1.1993. The

specific case of the 1st defendant was that, during the lifetime of

the 2nd defendant she had executed a will bequeathing her right

over the plaint schedule property in favour of the 1st defendant.

Since the 1st defendant claimed right over the plaint schedule

property as a legatee under a will executed by the 2nd defendant,

the plaintiff contended that other legal heir of the 2nd defendant

(the addl. 2nd appellant herein) need not be impleaded as a party

to the suit. The plaintiff as PW1 has deposed that, this Court by

the order in A.S.No.295/1996 has recorded the 1st defendant as

the legal heir of the deceased 2nd defendant. Further, there is no

material to show that the addl. 2nd appellant ever challenged the

aforesaid will executed by the 2nd defendant in favour of the 1st

defendant. As such, the trial court cannot be found fault with in

rejecting the contention raised as to non-impleadment of other

legal heirs of the deceased 2nd defendant.

       57. As per Para.8 of the plaint, the cause of action for the

suit arose on 25.8.1991 when the plaintiff came to know about

Ext.A4 document executed by the 1st defendant in favour of the

2nd defendant and on 27.12.1991 when the plaintiff was sought to

be obstructed by the defendants in taking usufructs and

continues therefrom. As we have already noticed, in the written

statement no plea of adverse possession was set up by the

defendants. In the absence of such a plea, there is no bar on the

plaintiff in seeking recovery of possession of the plaint schedule

property on the strength of Ext.A1 title, even after twelve years

from the date of execution/knowledge of Ext.A4 document by the

1st defendant in favour of the 2nd defendant. After amendment,

the relief for recovery of possession is sought for on the strength

of Ext.A1 title. The cause of action stated in the plaint is the date

of knowledge of Ext.A4 document and also the obstruction caused

by the defendants on 27.12.1991. When the cause of action for

the relief of recovery of possession is not different from the cause

of action for declaratory relief and injunction sought for in the

original plaint, no amendment of the cause of action stated in the

plaint is required.

       58. The plaint before its amendment by the order dated

22.9.2007 in I.A.No.91/2007 contained two reliefs; relief (a) for

declaration that Ext.A4 document is void ab initio and relief (b)

for injunction. In the plaint, the declaratory relief was valued at 

12,000/-, as provided under Section 25(a) of the Kerala Court

Fees and Suit Valuation Act, 1959 and the relief for injunction at

16,000/-, as provided under Section 27(c) of the said Act.

Therefore, both the reliefs were independently valued and

separate court-fees paid. After the amendment, two reliefs were

added; relief (aa) for recovery of possession of the plaint

schedule property on the basis of Ext.A1 title, if for any reason it

is found that defendants are in possession, and relief (bb) for

declaration of title by virtue of Ext.A1 title. In the amended

plaint, reliefs (aa) and (bb) were neither valued nor any court-

fees paid. The valuation of the appeal and the cross-objection is

also in respect of reliefs (a) and (b) only.

       59. Section 149 of the Code of Civil Procedure, 1908 deals

with the power of the court to make up deficiency of court-fees.

As per Section 149, where the whole or any part of any fee

prescribed for any document by the law for the time being in

force relating to court-fees has not been paid, the court may, in

its discretion, at any stage, allow the person, by whom such fee

is payable, to pay the whole or part, as the case may be, of such

court-fees; and upon such payment the document, in respect of

which such fee is payable, shall have the same force and effect as

if such fee had been paid in the first instance.

       60. In Nawab John A. v. V.N. Subramaniyam (2012

(7) SCC 738) the Apex Court held that, from the language of

Section 149 of the Code of Civil Procedure it follows that when a

plaint is presented to a court without the payment of appropriate

court-fees payable thereon, undoubtedly the court has the

authority to call upon the plaintiff to make payment of the

necessary court-fees. Such an authority of the court can be

exercised at any stage of the suit. Therefore, any amount of

lapse of time does not fetter the authority of the court to direct

the payment of such deficit court-fees. As a logical corollary,

even the plaintiff cannot be said to be barred from paying the

deficit court-fees because of the lapse of time.

       61. Section 6 of the Kerala Court Fees and Suits Valuation

Act, 1959, deals with multifarious suits. As per sub-section (1) of

Section 6, in any suit in which separate and distinct reliefs are

sought based on the same cause of action, the plaint shall be


chargeable with a fee on the aggregate value of the reliefs. Going

by the proviso to sub-section (1) of Section 6, if the relief is

sought only as ancillary to the main relief, the plaint shall be

charged only on the value of the main relief.

       62. Section 12 of the Kerala Court Fees and Suit Valuation

Act deals with decisions as to proper fee in any court other than

the High Court. As per sub-section (1) of Section 12, in every suit

instituted in any court, other than the High Court, the court shall

before ordering the plaint to be registered, decide on the

materials and allegations contained in the plaint and on the

materials contained in the statement, if any, filed under Section

10, the proper court-fees payable thereon, the decision being

however subject to review, further review and correction in the

manner specified in sub-sections (2) to (5) of Section 12.

       63. Sub-section (4) of Section 12 empowers the appellate

court to consider either on its own motion or on the application of

any of the parties, the correctness of any order of the court

below as to proper court fee payable on the plaint. Going by

clause (a) to sub-section (4) of Section 12, whenever a case

comes up before a court of appeal, it shall be lawful for the court,

either of its own motion or on the application of any of the

parties, to consider the correctness of any order passed by the

lower court affecting the fee payable on the plaint or in any other

proceedings in the lower court and determine the proper fee

payable thereon. Clause (b) to sub-section (4) of Section 12

provides that, if a court of appeal decides that the fee paid in the

lower court is not sufficient, the court shall require the party

liable to pay the deficit fee within such time as may be fixed by

it. Clause (c) to sub-section (4) of Section 12 provides further

that, if the deficit fee is not paid within the time fixed and the

default is in respect of a relief which has been dismissed by the

lower court and which the appellant seeks in appeal, the appeal

shall be dismissed, but if the default is in respect of a relief which

has been decreed by the lower court, the deficit court-fees shall

be recoverable as if it were an arrear of land revenue.

       64. In Paramu v. Balan (2001 (3) KLT 803) a learned

Judge of this Court examined the question as regards the power

of the appellate court to give direction with respect to the

payment of proper court-fees. After referring to sub-section (4)

of Section 12 of the Kerala Court Fees and Suit Valuation Act it

was held that, the appellate court has ample power to direct

payment of deficit court-fees as is done by the lower appellate

court.

       65. In P.P.S. Pillai v. Catholic Syrian Bank (2000 (3)

KLT 629) a Division Bench of this Court held that, sub-section

(4) of Section 12 of the Kerala Court Fees and Suit Valuation Act

confers jurisdiction on the appellate court to consider either of its

own motion or on the application of any of the parties the

correctness of the order passed by the trial court affecting the fee

payable on the plaint. If the court of appeal decides that the fee

paid in the lower court was not sufficient, the appellate court

shall require the parties liable to pay the deficit court-fees, within

a time as may be fixed by it. The further provision is that, if the

deficit fee is not paid within the time fixed and the default is in

respect of a relief which has been dismissed by the lower court,

the appeal shall be dismissed. The principle laid down in P.P.S.

Pillai's case (supra) has been reiterated by another Division

Bench of this Court in Peter Cherian v. Abraham (2007 (4)

SCC 680).

       66. In the instant case, in the amended plaint the plaintiff

sought for relief (aa) for recovery of possession of the plaint

schedule property on the basis of Ext.A1 title, if for any reason it

is found that defendants are in possession, and relief (bb) for

declaration of title by virtue of Ext.A1 document. However, reliefs

(aa) and (bb) were neither valued nor any court-fees paid. The

valuation of this appeal and cross-objection is also in respect of

reliefs (a) and (b) only. Therefore, the valuation of the plaint in

O.S.No.23/1992,             the memorandum       of      appeal     in

R.F.A.No.140/2010 and the memorandum of Cross Objection

No.79/2010 require to be amended by valuing reliefs (aa) and

(bb) on the market value of the plaint schedule property, as

shown in the plaint, and paying court-fees for the said reliefs as

provided under Section 25(a) of the Kerala Court Fees and Suit

Valuation Act, 1959.

        67. Accordingly, the appellant is directed to file application

for amending the valuation of the memorandum of appeal in


R.F.A.No.140/2010 and the plaintiff/cross objector is directed to

file applications for amending the valuation of the plaint in

O.S.No.23/1992 and the memorandum of Cross Objection

No.79/2010, within one month from the date of receipt of a

certified copy of this judgment and remit the deficit court-fees

along with the said applications, failing which the consequences

as provided under clause (c) of sub-section (4) of Section 12 of

the Kerala Court Fees and Suit Valuation Act, 1959 would follow.

       In the result, the appeal and cross objection fail and are

accordingly dismissed. Parties to bear their respective costs.




                                             Sd/-
                                 P.R. RAMACHANDRA MENON,
                                             JUDGE




                                             Sd/-
                                       ANIL K. NARENDRAN,
                                            JUDGE


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