Karnataka High Court
Sri R Anand vs Smt Anjinamma on 25 September, 2025
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
®
DATED THIS THE 25TH DAY OF SEPTEMBER, 2025
BEFORE
THE HON'BLE DR. JUSTICE K.MANMADHA RAO
WRIT PETITION NO.26065 OF 2018 (GM-CPC)
BETWEEN:
1 . SRI R ANAND
S/O SRI RAVINDRA
AGED ABOUT 52 YEARS
2 . SRI M BHAKTHAVATHSALA
S/O LATE MOOLA RANGAPPA
AGED ABOUT 84 YEARS
SENIOR CITIZEN CLAIMED
SINCE DEAD BY LRS PETITIONER
NOS.1,3 AND 9
3 . SRI MANU B
S/O SRI M BHAKTHAVATHSALA
AGED ABOUT 48 YEARS
4 . SRI SIDDARTHA S MOOLA
S/O SRI SURENDRANATH
AGED ABOUT 45 YEARS
5 . SMT PRATHIBHA S MOOLA
W/O SRI SURENDRANATH
AGED ABOUT 67 YEARS
SENIOR CITIZEN CLAIMED
REPTD. BY GPA HOLDER
MR. SIDDARTHA S.MOOLA
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6 . SRI M RAMESH MOOLA
S/O SRI MOOLA RANGAPPA
AGED ABOUT 79 YEARS
SENIOR CITIZEN CLAIMED
7 . SRI VIVESH R MOOLA
S/O SRI M RAMESH
AGED ABOUT 43 YEARS
REP BY GPA HOLDER
MR. M RAMESH MOOLA
8 . SRI VISHNU R MOOLA
S/O LATE RAVINDRA
AGED ABOUT 50 YEARS
9 . SRI ANAND R
S/O LATE RAVINDRA
AGED ABOUT 52 YEARS
PETITIONERS 1 TO 9 ARE
R/A MOOLA FARM
YARRAPANAHALLI JODI VILLAGE
KARAHALLI POST
KUNDANA HOBLI
DEVANAHALI TALUK-562110
BANGALORE RURAL DISTRICT
...PETITIONERS
(BY SRI. AJESH KUMAR S AND SRI BASAVARAJ R. PURAD,
ADVOCATES)
AND:
1. SMT ANJINAMMA
D/O LATE PATEL MAREGOWDA
W/O G NARAYANAPPA
AGED ABOUT 79 YEARS
R/A NANDI VILLAGE & HOBLI
CHIKKABALLAPUR TALUK-562 101
SINCE DEAD BY LRS
1(a) SMT RATHNAMMA
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D/O LATE ANJINAMMA
W/O H KRISHNAPPA
AGED ABOUT 57 YEARS
R/A UTTANAHALLI VILLAGE
BANGALORE NORTH TALUK
1(b) SMT DHAMAYANTHI
D/O LATE ANJINAMMA
W/O LATE H LOKESH
AGED ABOUT 55 YEARS
RESIDING AT VIJAYANAGARA
BANGALORE 560040
1(c) N MURTHY
S/O LATE ANJINAMMA
AGED ABOUT 57 YEARS
1(d) G N SURESH
S/O LATE ANJINAMMA
AGED ABOUT 51 YEARS
LRS 1(c) AND 1(d) ARE RESIDENTS OF
NANDI VILLAGE & HOBLI
CHIKKABALLAPUR TALUK
BANGALORE RURAL DISTRICT-562101
2. SMT VIMALA DEVI
D/O LATE PATEL MAREGOWDA
W/O H D ANJINAPPA
AGED ABOUT 64 YEARS
RESIDING AT HASIGALA VILLAGE
SULIBELE HOBLI,
HOSAKOTE TALUK- 562114
BANGALORE RURAL DIST-562 114.
3. SMT MANJULA
D/O LATE PATEL MAREGOWDA
W/O G RAMESH
AGED ABOUT 60 YEARS
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RESIDING AT AGALAGURKI VILLAGE
NANDI HOBLI
CHIKKABALLAPUR TALUK
BANGALORE RURAL DIST-562101
4. SMT ANJINAMMA
D/O LATE PATEL MAREGOWDA
AGED ABOUT 92 YEARS
5. SMT PADMAMMA
W/O LATE KRISHNE GOWDA
AGED ABOUT 62 YEARS
SINCE DEAD REPRESENTED BY LRS
ALREADY ON RECORD
5(a) SRI SHIVAKUMAR
S/O LATE KIRSHNE GOWDA
AGED ABOUT 42 YEARS
5(b) SRI SUNIL KUMAR
S/O LATE KRISHNE GOWDA
AGED ABOUT 35 YEARS
BANGALORE RURAL DISTRICT 562110
5(c) MS LAVANYA
D/O LATE KRISHNE GOWDA
AGED ABOUT 32 YEARS
RESPONDENTS NOS.4 TO 5 (c) ARE
RESIDENTS OF KARAHALLI VILLAGE DEVANAHALLI TALUK, BANGALORE RURAL DISTRICT 562110
6. SRI. M. NARASEGOWDA S/O. LATE. PATEL MARE GOWDA, AGED ABOUT 72 YEARS SINCE DEAD REPRESENTED BY LRS, 6(a) SMT. SAROJAMMA, W/O. LATE. NARASEGOWDA, AGED ABOUT 62 YEARS, -5- 6(b) SRI. HARISH W/O. LATE. NARASEGOWDA, AGED ABOUT 35 YEARS SINCE DEAD BY LRS, 6(b1) NAGAMANI W/O.LATE. HARISH, AGED ABOUT 36 YEARS, 6(b2) DILIP GOWDA W/O. LATE. HARISH, AGED ABOUT 8 YEARS, 6(b3) KAUSHIK GOWDA S/O. LATE. HARISH, AGED ABOUT 16 YEARS RESPONDENT NOS.6(b2) & 6(b3) BEING MINORS, REPTD. BY RESPONDENT NO.6b(1) MOTHER & NATURAL GUARDIAN RESPONDENT NOS.6(b1) TO 6(b3) ARE RESIDNG AT KARANAHALLI VILLAGE, DEVANAHALLI TALUK, BENGALURU RURAL DISTRICT 6(c) SMT. PRAPULLA D/O. LATE. NARASEGOWDA, W/O. KRISHNAMURTHY, AGED ABOUT 33 YEARS RESIDING AT: 99, NEAR VEMAREDDY'S BUILDING, CHANNASANDRA VILLAGE, BIDDARAHALLI POST, BANGALORE RURAL DIST - 562114.
6(d) SMT. ANITHA D/O. LATE. NARASEGOWDA, W/O. VENKATARAJU, AGED ABOUT 30 YEARS RESIDING AT: KUDUVATHI VILLAGE, NANDI HOBLI, -6- CHIKKABALLAPUR TALUK BANGALORE RURAL DIST - 562101.
6(e) SMT. PANKAJA D/O.LATE. NARASEGOWDA, W/O. MUNIRAJU AGED ABOUT 27 YEARS RESIDING AT:
NADUVATHI VILLAGE & POST, HOSAKOTE TALUK BANGALORE RURAL DIST- 562114.
7. SRI. K. MUNIRAJU S/O.LATE. PATEL MARE GOWDA, AGED ABOUT 69 YEARS
8. SRI. K.M. ASHOK KUMAR S/O.LATE. PATEL MARE GOWDA, AGED ABOUT 67 YEARS RESPONDENTS NOS. 1 TO 8 ARE RESIDENTS OF KARAHALLI VILLAGE KUNDANA HOBLI, DEVANAHALLI TALUK-562101 BANGALORE RURAL DISTRICT.
...RESPONDENTS (BY SRI. RAGHAVENDRA K.S. FOR R1(a),(b) & (d) & R2 & R3, R1(c) is SERVED AND UNREPRESENTED; NOTICE TO R4 TO R8 IS D/W V/O DT:24.07.2018; NOTICE TO R-2 IS H/S, V/O DT:27.11.2018; NOTICE TO R-1(b) is D/W V/O DT:17.03.2025) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, 1908, PRAYING TO QUASH THE IMPUGNED ORDER DTD30.1.2018 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC AT DEVANAHALLI IN -7- O.S.NO.175/2011, A COPY OF WHICH IS APPENDED AT ANNEXURE-A AND CONSEQUENTLY, DIRECT THE PLAINTIFFS TO PAY THE COURT FEE AS PER SECTION 24 OF THE KARNATAKA COURT FEE AND SUIT VALUATION ACT AND ETC.
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 02.09.2025 AND COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:
CORAM: HON'BLE DR. JUSTICE K.MANMADHA RAO CAV ORDER This Writ Petition is filed by the petitioners (defendants No.9 to 17) to quash the order dated 30.01.2018 passed in O.S.No.175/2011, on the file of Senior Civil Judge and JMFC at Devanahalli ('the trial Court for short).
2. The petitioners herein are the defendants No.9 to 17 before the trial Court and the respondents No.1 to 3 herein are the plaintiffs No.1 to 3 before the trial Court and the respondents No.4 to 8 herein are the defendants No.1 and 8 before the trial Court.
3. For convenience of reference the parties are referred as arrayed before the trial Court.-8-
4. The Brief facts of the case are that:-
The plaintiffs filed suit for partition and separate possession seeking share in the suit schedule properties of their 3/8th share in the plaint schedule properties.
5. It is the case of the plaintiffs that they, along with defendants No.1 to 8, constitute an undivided Hindu Joint Family, being coparceners in joint possession and enjoyment of the plaint schedule properties, which are their ancestral joint family properties. The properties originally belonged to one Patel Mare Gowda, S/o Narase Gowda, who purchased the same under a registered sale deed dated 01.08.1952 executed by Muniyappa, S/o Appojappa. Upon such purchase, the said Patel Mare Gowda entered into possession and enjoyment of the suit schedule properties. In pursuance of the same khata and mutation were effected in the name of Patel Mare Gowda.
It is stated that there has been no partition of the suit schedule properties till date and that the plaintiffs and defendants No.1 to 8 have equal rights therein, jointly holding 3/4th share only.
-9-6. It is averred that Patel Mare Gowda had two wives, namely Akkayamma and Anjinamma. From the first wife, Akkayamma, he had three children, namely plaintiff No.1-Anjinamma, Krishne Gowda and defendant No.6- M.Narase Gowda. Both Akkayamma and Krishne Gowda are deceased. The said Krishne Gowda died leaving behind his wife Padmanimma and three children, who are arrayed as defendants No.2 to 5. Through his second wife defendant No.1-Anjinamma, Patel Mare Gowda had four children, namely defendant No.7-K.M.Muniraju, defendant No.8-K.M. Ashok Kumar, plaintiff No.2-Vimaladevi and plaintiff No.3-Manjula. Thus, the plaintiffs and defendants No.1 to 8 are co-parceners entitled to joint possession and enjoyment of the suit properties.
7. It is further stated that the defendant No.7 is managing the suit schedule properties on behalf of the joint family. However, he has been colluding with defendants No.1 to 6 and 8 and has been mismanaging the same to the detriment of the plaintiffs' interest. Due to such acts, the plaintiffs are unwilling to continue in joint
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possession. They demanded, in the first week of April 2011, an equitable partition of the properties and allotment of their shares by metes and bounds. The defendants, however, refused to effect partition and the panchayats convened in this respect failed. Consequently, the plaintiffs were constrained to institute the present suit seeking partition and separate possession of their legitimate shares.
8. The plaintiffs have also arrayed defendants No.9 to 17 as parties, contending that they are total strangers to the suit schedule properties. On obtaining RTC extracts of the suit schedule properties, the plaintiffs discovered that the names of defendants No.9 to 17 were illegally entered in the revenue records, though no member of the joint family ever executed any deed or document in their favour. It is alleged that defendants No.9 to 17, being powerful persons, managed to get revenue entries fraudulently, but such entries do not confer any right, title or possession as the physical
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enjoyment continues with the plaintiffs and defendants No.1 to 8.
9. The plaintiffs submit that the following properties are situated at Jodi Yarrappanahalli Village, Kundana Hobli, Devanahalli Taluk:
(a) Sy.Nos.1 to 4 and 28 stand in the name of defendant No.9;
(b) Sy.No.5 in the name of defendant No.10;
(c) Sy.Nos.6 to 8 in the name of defendant No.11;
(d) Sy.Nos.9 to 11 and 13 in the name of defendant No.12;
(e) Sy.Nos.12, 14 and 26 in the name of defendant No.13;
(f) Sy.Nos.15 to 18 in the name of defendant No.15;
(g) Sy.Nos.19 and 20 in the name of defendant No.14;
(h) Sy.No.21 is a Gomala.
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(i) Sy.Nos.22 to 25, 27, 29 and 30 in the name of defendant No.16, and Sy.No.21 is described as Gomala land.
10. The plaintiffs assert that despite illegal revenue entries in the names of defendants No.9 to 17, neither possession nor title ever passed to them, and such entries are not binding. Therefore, defendants No.9 to 17 will not derive any title or possession over the suit schedule properties. The suit has been properly valued for the purpose of Court fee and jurisdiction.
11. In the circumstances, the plaintiffs sought for the following reliefs:-
(i) For partition and separate Possession of schedule properties in item No.1 to 20 and 22 to 30 out of which 3/4th share by metes and bounds of plaintiffs 3/8th share and such partition be effected Under section 54 of the Code of Civil Procedure.
12. Per contra, defendants No.9 to 17 filed their written statement denying the plaint averments and contended that they are absolute owners of the suit
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schedule properties under various sale deeds and the land was no more the agricultural land. The plaintiffs were not in suit schedule properties. The market value was higher than assessed by the plaintiffs. The plaintiffs suppressed the facts that the defendants No.9 to 17 are the owners of the suit schedule properties. The revenue records reveal the name of these defendants. The plaintiffs need to pay court fee under Section 35(1) of the Karnataka Court Fee and Suit Valuation Act.
13. It is further stated in the additional affidavit in lieu of evidence of defendant No.16 that the current guideline valuation of the suit schedule property at the time of the plaint being filed was Rs.5,00,000/- per acre for agricultural land and Rs.22,50,000/- per acre in respect of Sy.Nos.1, 2, 5, 6, 7 and 8 and Rs.75,000/- per acre in respect of Sy.Nos.3 and 4 for converted land.
14. Based on the pleadings, the trial Court has framed the preliminary issue No.6 for consideration as under:
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Whether the defendants No.9 to 17 prove that the valuation of suit and payment of court fee is not correct and sufficient?
15. The trial Court based on the pleadings, oral and documentary evidence while stating that the valuation of the suit and payment of court fee is correct and proper has observed as under:-
10. ................In the plaint it is categorically stated that the plaintiffs and defendants No.1 to 8 are in joint possession and enjoyment of the schedule properties as co-parceners. They are the members of the Hindu joint family having equal right. There is no partition till today. In the cross-
examination of DW.1 has stated that the plaintiffs filed suit for partition stating that they are in possession of the suit schedule properties. He has admitted that originally suit schedule properties were belonging to grandfather of the plaintiffs. 28 acres of land has been converted into non- agricultural purpose and rest of the schedule properties not been converted. On perusal of the Ex.D1, no doubt the valuation of the suit schedule properties as on 2011-12 is mentioned therein. However, the plaintiffs have assessed the schedule properties based on the valuation made in the revenue records.
12. Under Section 35(1) of Karnataka Court Fee and Suit Valuation Act, if the plaintiffs
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title to the property is denied or is excluded from possession, he has to pay the court fee on market value of his share. If the land is separately assessed, plaintiff can pay court fee on the deemed market value on the basis of the land revenue. Otherwise, he has to pay court fee on the actual market value. Under Section 35(2) of Karnataka Court Fee and Suit Valuation Act, if the plaintiff is in joint possession, court fee has to be paid at the rate mentioned therein. The maximum court fee payable on the basis of the plaint averments and not on the contention raised on the written statement. If the plaintiff avers that he is in joint possession, suit can be valued under sub- Section(2).
16. It is contended by the learned counsel appearing for the petitioners that the trial Court though empowered to pass orders is bound to consider the contentions of all parties, apply the relevant statute and precedents, and render a reasoned decision. A reading of the plaint and prayers shows that for the plaintiffs to succeed, they must prove valid subsisting title and possession superior to that of the petitioners. Despite naming the suit as a suit for partition, the plaint admits execution of a Sale Deed by the plaintiffs' father in favour
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of the defendants' vendor and also records the petitioners' possession. Even if the petitioners are in possession of the suit schedule property, then, the suit for Declaration of Title requiring Court Fee under Section 24 of the Karnataka Court Fee & Suit Valuation Act, and not under Section 35(2) under the said Act applicable to partition.
The trial Court failed to appreciate the averments of the plaint vis-à-vis the written statement and thereby mischaracterized the nature of the suit.
17. It is also contended that a suit cannot proceed without proper Court Fee, and the trial Court lacked jurisdiction to continue in its absence. Nevertheless, it relied only on the reasoning at paragraph 8 of the impugned Order, namely the plaintiffs' claim for partition and separate possession, the defendants' assertion of title by sale deeds and denial of joint possession, and the alleged change of nature of the property, citing oral and documentary evidence to demand Court Fee under Section 35(1) of the Karnataka Court Fee & Suit Valuation Act. The
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trial Court thus failed to exercise jurisdiction under the CPC and the Karnataka Court Fee & Suit Valuation Act.
18. Heard learned counsel appearing for the parties.
19. In support of his contentions, learned counsel for the petitioners has placed reliance on the following judgments:-
• Mr. M. Bhaktavatsala and Ors. v. Smt. Manjula and another by order dated 13.04.2012 passed in Crl.P.No.5525/2011;
• Shamser Singh v. Rajinder Prashad and Ors. by order reported in MANU/SC0261/1973; • Venkatesh R Desai v. Smt. Pushpa Hosmani and Ors. by order dated 26.10.2028 passed in W.P.No.8087/2018 (GM-CPC) • Sri. S. Sundaramurthy and Ors. v. Smt. Saraswathi Lakshmanan and Ors. by order dated 21.07.2015 passed in RFA No.169/2009 c/w. RFA No.342/2009.
• Mr. M. Bhaktavatsala and Ors. v. Smt. Manjula and another Crl.P.No.5525/2011 169/2009; Para No.9 i. It is not the case of complainant that Petitioners herein had forged registered Sale Deeds dated 27.02.1968 and 26.03.1968.
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ii. The Respondent No.1 has initiated proceedings before the Assistant Commissioner, wherein it is conceded that revenue entries stand in the names of the Petitioners herein. • Shamser Singh v. Rajinder Prashad and Ors. MANU/SC0261/1973; Para No.4 When deciding on the aspect of court fee, the court must does not merely look into the astuteness in drafting of the plaint. • Venkatesh R Desai v. Smt. Pushpa Hosmani and Ors. W.P.No.8087/2018 (GM-CPC), Para No.32 While deciding the aspect of the question of valuation and/or court fees does not affect jurisdiction, the Court may examine such question, but it is not bound to decide it as a preliminary issue or prior to evidence on other issues.
• Sri. S. Sundaramurthy and Ors. v. Smt. Saraswathi Lakshmanan and Ors. RFA No.169/2009, Para No.11 When the trial court decides the issue of court fee only upon the averments in the plaint is erroneous, as it overlooks the mandate of Section 11 of the Karnataka Court fees and Suit Valuation Act.
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20. The learned counsel appearing for the respondents has placed reliance on the following judgments:-
• V. Rani v. V. Subbamma and Ors. by order dated 29.10.2015 passed in W.P.No.55876/2014 (GM-CPC);
• Smt. Nanjamma v. Smt. Akkayamma reported in 2014 SCC OnLine Kar 12585;
• Smt. A. Hemaganga and another v. A. Umadevi and Others by order dated 02.12.2015 passed in W.P.No.41042/2015 (GM-CPC);
• B.S.Malleshappa v. Koratagigere B. Shivalingappa and others reported in 2001 SCC OnLine Kar 297;
• Sri Sampangi Gowda and others v. Sri Muddanna and another reported in ILR 2014 KAR 3707;
• Smt. Nanjamma (since dead) by LRs and others reported in 2014 SCC OnLine Kar 12151;
• Miss Radhika v. Smt. Shivamma (since deceased) by her LRs. by order dated 04.11.2016 passed in Civil Revision Petition No.355/2016 (IO); and • M.V. Chayapathi Rao and others v. M.V. Sathyanarayanarao and another reported in 1988 SCC OnLine Kar 496.
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• Smt. Nanjamma Vs. Smt. Akkayamma and others reported in 2014 SCC OnLine Kar 12585
68. The Trial Court has recorded a categorical finding that the plaintiff was not in possession of any of the properties as on the date of suit. Kalappa had executed a joint development agreement and has put defendants 13 to 28 in possession of various properties. Thereafter the purchasers have got the lands converted, formed lay-outs, constructed multi storied shopping complexes after obtaining sanctioned plan and sold the same. As on the date of suit, neither the plaintiff nor her brother Kalappa was in possession of the property and therefore the suit ought to have been valued under Section 35(1) of the Karnataka Court Fees and Suits Valuation Act and not under Section 35(2). It also directed the plaintiff to value the suit under Section 35(1) and pay deficit court fee.
69. Section 35 of the Karnataka Court Fees and Suits Valuation Act, 1958 deals with partition suits. It reads as under:
"35. Partition suits. (1) In a suit for partition and separate possession of a share of joint family property or of property owned, jointly or in common, by a plaintiff whose title to such property is denied, or who has been excluded from possession of such property, fee shall be computed on the market value of the plaintiff's share.
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(2) In a suit for partition and separate possession of joint family property or property owned, joindy or in common, by a plaintiff who is in joint possession of such property, fee shall be paid at the following rates:-
Rupees fifteen if the value of plaintiff's share is Rs. 3,000 or less; Rupees thirty if the value is above Rs. 3,000 but not more than Rs. 5,000. Rupees one hundred if the value is above Rs. 5,000 but below Rs. 10,000 and Rs. 200/- if the value is Rs. 10,000 and above.
(3) Where, in a suit falling under sub-section (1) or sub-section (2), a defendant claims partition and separate possession of his share of the property, fee shall be payable on his written statement computed on half the market value of his share or at half the rates specified in sub-section (2), according as such defendant has been excluded from possession or is in joint possession.
(4) Where, in a suit falling under subsection (1) or sub-section (2), the plaintiff or the defendant seeks cancellation of decree or other document of the nature specified in Section 38 separate fee shall be payable on the relief of cancellation in the manner specified in that section."
12. Therefore, what the Court has to look into is the averment in the plaint If in the plaint it is averred that the plaintiffs and defendants are in joint possession, notwithstanding the fact that they are living separately, even at two different places, in law it makes no difference. In the eye of law, in the case of co-parcenery, joint family or co-ownership, possession
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of one co-parcener or member of the joint family or co- owner is possession of all. Then the case would fall under Section 35(2) of the Act. To take the case out of Section 35(2) there should be a clear and specific averment in the plaint that the plaintiff has been excluded from joint possession. In fact, in the case of co. parcenary or joint family property, the averment should be that the plaintiff has been ousted from possession. If there is a clear and specific averment in the plaint that they have been excluded form joint possession to which they are entitled to in law, then the case would fall under Section 35(1) of the Act. In a suit for partition, if the Court after trial records a finding that the plaintiff is not in possession and the plaintiff challenges the said finding, the correctness of the said finding has to be gone into by the Appellate Court. Therefore, as the finding has not attained finality, the question of the appellants paying Court fee on the basis of the said finding would not arise. Therefore, the High Court office cannot insist on payment of Court Fee on the basis of the findings recorded by the trial Court on the issue regarding possession".
Smt. A Hemaganga and another Vs. A Umadevi and others reported in LAWS (KAR) - 2015-12-235 There is total misdirection to the pleadings by the Trial Court to bring the suit under sub-section (1) of Sec.35 of the Karnataka Court Fees and Suits Valuation Act, merely because it was contended by the
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defendant that the plaintiffs have admitted the exclusive possession of the defendant of the suit schedule properties.
• M.V.Chayapathi Rao and others Vs.
M.V.Sathyanarayanarao and another
reported in 1988 SCC OnLine Kar 496
3. On such pleadings, the Court framed an issue whether the Court fee paid by the plaintiff was sufficient or not and thereafter came to the conclusion that the suit fell under Section 35(1) of the Karnataka Court Fees and Suits Valuation Act and therefore, the plaintiffs must pay the Court fee on the market value of the property, the possession of which was sought. Therefore, the present revision being aggrieved by the same.
4. In this revision petition that the parties are Hindus is not in doubt. That the plaint allegation clearly assert that they are members of the joint family and claim a share in their deceased father's properties also is not in doubt or cannot be doubted. It has also come in the case that the first defendant is enjoying the property and he is in possession and occupation of schedule B property along with his family. Therefore, the suit essentially is a suit for partition of the suit schedule properties by metes and bounds and for the sharers to be put in possession of their respective shares. That is not the same as seeking possession of the property of which they have lost possession. Even if such a thing is pleaded as in fact the vague and alternate plea taken by the defendant leading to such an issue being raised having regard to the allegation that he had purchased
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the share of the plaintiffs, that would be a matter to be decided after trail and evidence is lead. There may not be any assumption that such purchase is valid or in fact true and question of possession decided on that face plea.
6. There is total misdirection to the pleadings by the trial Court to bring the suit under sub-section (1) of Section 35 of the Karnataka Court Fees and Suits Valuation Act, merely because it was contended by the defendant that the plaintiffs have admitted the exclusive possession of the defendant of the suit schedule properties.
8. Even the decision relied upon by the learned counsel for the respondent defendant does not support his view. He drew my attention to the decision of the Supreme Court in Neelavathi v. Natarajan, reported in 1980 (1) Karnataka Law Journal short Notes Item No. 126, arising under the Tamil Nadu Court Fees and Suits Valuation Act. Section 37 of the said Act, which is in pari-materia with Section 35 of the Karnataka Court Fees and Suits Valuation Act, feel for consideration. While considering that, the Supreme Court has held as under:
"Court fee is payable under Section 37(1) T.N. Act, if the plaintiff is 'excluded' from possession of the joint property. The general principle of law is that in the case of co-owners, possession of one is possession of all unless ouster or exclusion is proved. To continue to be in joint possession in law, it is not necessary that the plaintiff should be in actual possession of the whole or
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part of the property. Equally it is not necessary that he should be getting a share or some income from the property. So long as his right to a share and the nature of the property is not disputed, the law presumes that he is in joint possession. To apply Section 37(1) there should be a clear and specific averment in the plaint that plaintiff has been excluded from joint possession. An averment that plaintiff could not remain in joint possession would not amount to exclusion from possession."
9. From the above it is clear that as long as the plaintiffs claim to be the heirs of deceased father of plaintiffs 1 and 2 and allege that the property is the joint family property, the suit cannot loss its colour of being a partition suit merely because the defendant contends otherwise. The decision assists the plaintiffs more than it does the defendant. In view of the above, the revision is allowed. The order passed by the Court below is set aside with a direction to the Court to proceed with the suit as if it is only a suit for partition and nothing more.
• B.S. Malleshappa v. Koratagigere B. Shivalingappa, 2001 SCC OnLine Kar 297
3. After trial, the trial Court held that the properties described in 'B' to 'E' schedule were the self-acquired properties of first defendant and were not joint family properties and that the plaintiff had separated from the family in the year 1974 by taking 'A' schedule properties to his share. The trial Court also held that the Court fee paid was not proper. The Court below held that as the
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plaintiff had valued the share at Rupees Three lakhs, he was liable to pay the ad valorem Court fee on Rupees Three lakhs under Section 35(1) of the Act. The trial Court held that the plaintiff was in exclusive possession of 'A' schedule properties and he was not in either constructive or joint possession of 'B' to 'E' schedule properties. Consequently the trial Court dismissed the suit with costs, by judgment and decree dated 26.3.1994, with the following directions regarding Court fee:
"The plaintiff is hereby directed to pay Court fee under Section 35(1) of the Karnataka Court Fees and Suits valuation Act as amended, over his alleged 1/5th share namely on Rs. 3,00,000 less Rs. 200, Court fee already paid, within two weeks from today and failing which the suit is also deemed to be automatically dismissed or plaint is rejected for non-compliance."
As the plaintiff did not pay the Court fee under Section 35(1) of the Act, as directed by the trial Court, the suit was also dismissed on the ground of non-compliance of Court order to pay deficit Court fee under Section 35(1) of the Act.
5. Thereafter, on 16.3.2000, the defendants respondents have filed an application under Section 11(4)(a) of the Act, to determine the Court fee payable on the memorandum of appeal. Learned Counsel for respondents contended that where the trial Court has held that ad valorem Court fee is payable under Section 35(1) of the Act, the following procedure ought to have been followed even before admitting the appeal:
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a) Require the plaintiff to pay ad valorem Court fee on the value of Rupees Three Lakhs under Section 35(1) of the Act (less Rs. 200.00 paid on the plaint); and
b) Require the plaintiff-appellant to pay ad valorem Court fee on Rupees Three lakhs (equal to the Court fee payable in the trial Court under Section 35(1) of the Act) on the memorandum of appeal, under Section 49 of the Act.
6.1. In Onkar Mal's case, a full Bench of Allahabad High Court was considering, in a second appeal, Section 7(iv- A) of the Court Fee Act, 1870, as amended in Uttarpradesh, extracted below:--
"(vi-A) In suits for partition .... according to one quarter of the value of the plaintiffs share of the property, and according to the full value of such share if on the date of presenting the plaint the plaintiff is out of possession of the property of which he claims to be a coparcener or co-owner, and his claim to be a coparcener or co-owner on such date is denied.
In that case, the plaintiff brought a suit for partition alleging joint possession and Court fee was paid on one quarter of the value of the share in accordance with first part of Section 7(iv-A). The defendants denied the plaintiff's possession and title. Appropriate issue was framed and on evidence, it was found that the plaintiff was not in possession. The trial Court did not demand Court fee upon the full value of the share in accordance with the second part of Section 7(iv-A), before pronouncing the final order, but dismissed the suit. The
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first appeal by plaintiff was also dismissed. In the second appeal filed by the plaintiffs, the question of Court fee was raised. The Full Bench held that having regard to the finding of two Courts-below that the plaintiffs were out of possession as on the date when they brought the suit, Court fee ought to have been levied on the full value of the share claimed. The Court held that realisation of deficiency in Court fee could not be postponed on the ground that the question whether the plaintiff was in joint possession or not was not is to be decided in the appeal. The Court observed:
"To enable the Court to consider the appeal on merits the memorandum of appeal must be a document which was properly stamped. The question whether a memoramdum of appeal was properly stamped or not must be decided first before the appellant could claim a hearing on merits... The question of Court-fee therefore had to be decided on the basis of facts, as they stood at the time when the memorandum of appeal was filed in the Court. The decision of the two Courts below that the plaintiffs were never in joint possession must be accepted as correct for levying the proper Court fee...... The report relating to deficiency is correct and the deficiency must be made good first before the memorandum of appeal can be admitted...." "Therefore, though the Court-fee must initially be accepted as correct according to the allegations made by the plaintiff in the plaint, the Court is required to revise its opinion and ask for the requisite Court-fee under the second part of the clause on coming to the view that the plaintiff is out of possession of the property and that his claim to be a coparcener or co-
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owner is denied. The general rule of ascertaining the valuation, for purposes of Court-fee from the allegations and prayers in the plaint must therefore, in such cases, be modified...."
The full Court also examined the principle that the Court must base its decision as to the Court fee payable on the averments and prayer in the plaint, and held thus:
"The general rule that the Court must base its decision as to the Court fee payable on the allegations and prayers in the plaint is correct only to this extent that the general rule is invoked primarily for the purposes of classification of suit; in other words, in order to find out the nature of the suit and the category it belongs to, the Court must examine the allegations and reliefs claimed in the suit for the simple reason that it is the allegations made in the plaint which determine the nature of the suit. In making this classification about the category of the suit it is not permissible to call in aid the allegations made in the written-statement."
"After the category of the suit has been ascertained, the Court has to find out whether the plaintiff has correctly valued the relief for purposes of Court-fees in the manner laid down in Section 7 of the Court-fees Act. This process also involves the examination of the plaint allegations and, if there is nothing to indicate otherwise, the plaintiff's valuation 'prima facie' is accepted as correct. Ordinarily, the Court would accept Court-fees paid in the first instance as correct, but if it transpires subsequently that an allegation of fact on the basis of which the Court- fee was computed is not correct, then it is within the
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power of the Court to demand addition Court-fee before the judgment is pronounced".
"Coming to the case before us, the allegations in the plaint show that it is a partition suit which is governed by sub-section (vi-A) of Section 7, Court-fees Act for computing the proper Court fee. The Court-fees paid by the plaintiffs was accepted as correct because the plaintiffs had asserted in the plaint that they were in joint possession of the property to the extent of their share. In the initial stage it could not be said with any certainty whether the allegation was false or correct. The defendants having denied this assertion of the plaintiffs, a specific issue on the question of joint possession of the plaintiffs was framed in the case. The Court, after evidence was gone into, recorded a finding that the plaintiffs were not in the joint possession of the property. In view of this finding it was open to the first Court to demand Court-fee under the second part of sub-section (vi-A) of Section 7, Court-fees Act before pronouncing final order in the case".
8.1. The relevant portions of Section 35 are extracted below:
(i) In a suit for partition and separate possession of a share of joint family property or of property owned, jointly or in common, by a plaintiff whose title to such property is denied, or who has been excluded from possession of such property, fee shall be computed on the market value of the plaintiff's share.
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(ii) In a suit for partition and separate possession of joint family property or property owned, jointly or in common, by a plaintiff who is in joint possession of such property, fee shall be paid at the following rates :.......Rupees two hundred, if the value is Rs. 10,000 and above 9.2) In Neelavathi v. S. Natarajan [AIR 1980 SC
691.] the Supreme Court was considering Section 37(1) and (2) of Tamilnadu Court Fee and Suits Valuation Act, 1955, somewhat similar to Section 35(1) and (2) of Karnataka Act. The Supreme Court, reiterated the principle in Sathappa Chettiar's case and held that it is settled law that the question of Court fee must be considered in the light of the allegation made in the plaint and its decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on merits. Further, interpreting the words 'excluded from possession' in Section 37(1) of the Tamilnadu Act (which corresponds to Section 35(1) of Karnataka Act) the Supreme Court observed thus:
"The general principle of law is that in the case of co- owners, the possession of one is in law possession of all, unless ouster or exclusion is proved. To continue to be in joint possession in law, it is not necessary that the plaintiff should be in actual possession of the whole or part of the property. Equally it is not necessary that he should be getting a share or some income from the property. So long as his right to a share and the nature of the property as joint is not disputed, the law presumes that he is in joint possession unless he is excluded from such possession. Before plaintiffs could be called upon to
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pay Court Fee under Section 37(1) of the Act on the ground that they had been excluded from possession, it is necessary that on a reading of the plaint, there should be a clear and specific averment in the plaint that they had been "excluded" from joint possession to which they are entitled to in law..."
(emphasis supplied)
10. If the plaintiff claims to be in joint possession (either constructive or actual) and files a suit for partition and separate possession, he has to pay the Court fee only under Section 35(2) of the Act. In such a suit, the plaintiff will be entitled to relief, only if the Court accepts his contention that he is in joint possession (either constructive or actual). On the other hand, if the Court finds that he is not in possession or joint possession (either constructive or actual) or if the Court finds that he has been excluded or ousted from possession, the relief will be denied. But the plaintiff cannot be required to pay Court fee in such a situation. If the Court finds that some of the properties in the plaint schedule are in the possession or joint possession of the plaintiff, and others are not, the Court will give relief only in regard to those properties which are found to be in possession or joint possession of the plaintiff and not in regard to those from which plaintiff had been excluded or ousted. The Court cannot, either at the instance of defendant, or Suo moto, convert the suit as one under Section 35(1) on the basis of defendant's pleadings or evidence. We may illustrate by an example. When a suit is filed by a plaintiff for a bare injunction alleging that he is in possession and pays Court fee under Section 26(c) of the Act, and if defendant
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denies such possession and established that he (the defendant) has always been in possession, the Court will dismiss the suit for injunction. It will not and cannot hold that it is a suit for possession and consequential injunction and call upon plaintiff to pay Court fee under Section 24(a) or 28 or 29 of the Act.
• Smt. Nanjamma (Since dead) by Lrs and others Vs. Smt. Ashwathamma and ohers reported in 2014 SCC OnLine Kar 12151
3. After hearing both the parties, taking note of the allegations in the written statement and the affidavit filed in support of the application, where the defendants case is set out, the Trial Court has come to the conclusion that the plaintiffs are not in possession of the property and therefore, valuation of the suit under Section 35(2) of the Act is not proper and therefore, it has directed to pay the Court fee under Section 35(1) of the Act. Aggrieved by the said order, the present writ petition is filed.
4. Order 7, Rule 11 of CPC speaks about rejection of the plaint. It provides, if plaint does not disclose a cause of action, or the relief claimed, is undervalued; the plaintiff on being required by the Court to correct the valuation within a time to be fixed by the Court fails to do so; where relief claimed is properly valued but the plaint is written upon paper insufficiently stamped; where the plaintiff, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court fails to do so and where the suit appears from the statement in the plaint to be barred by any law, the plaint shall be rejected.
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5. In the instant case, the plaintiffs have valued the suit under Section 35(2) of the Act. The plaintiffs, in the plaint, have categorically stated that they are in joint possession and occupation of the property. Section 35(2) of the Act prescribes Court fee payable in case where plaintiff is in joint possession. In order to find out whether the plaint as properly valued not what is to be seen is the averment in the plaint and not the averments in the written statement and therefore in an application filed under Order 7, Rule 11 of CPC, the Court gets no jurisdiction to go into the valuation of the suit. Therefore, the impugned order passed is illegal and requires to be set aside. If the defendants take a contention that suit is not properly valued and the Court fee paid is not sufficient, an issue has to be framed in this regard and that has to be tried as preliminary issue. Therefore, the finding recorded by the Trial Court on an application filed under Order 7, Rule 11 of CPC, suit should have been valued under Section 35(1) and not under Section 35(2) of the Act and therefore the order is unsustainable. Hence I pass the following Order:
The writ petition is allowed. The impugned order is hereby set aside. The application LA. No. 5 is dismissed. However, if and when the question of Court fee and valuation arises in the suit, the same shall be decided by the Trial Court on its merits and in accordance with law, without in any way being influenced by the observations made in this writ petition.
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21. Having considered the contentions advanced, On hearing the submissions of the learned counsel for the petitioner and the respondent, on perusal of the material on record and impugned order of the trial Court and also relying on the above judgments, this Court is of the view that in the plaint it is categorically stated that the plaintiffs and defendant Nos.1 to 8 are in joint possession and enjoyment of the schedule properties as co-parceners and all are the members of the Hindu Joint Family having equal right over the schedule properties. DW.1 admitted in his cross-examination that originally the suit schedule properties belonged to the grand father of the plaintiffs and also stated that the plaintiffs filed a suit for partition stating that they are in possession of the suit schedule properties. As seen from the plaint and written statement, it appears that, as per the plaint the possession of the schedule properties are in joint possession of the plaintiffs and defendants and as per the written statement that the schedule properties are in the possession of the defendants under various sale deeds and the land is no
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longer the agriculture in nature. The market value is higher than the assessed by the plaintiffs and further claimed that they are the owners of the suit schedule properties and the revenue records reveals the name of these defendants. In view of the same, the plaintiffs need to pay the Court fee under Section 35(1) of the Karnataka Court Fee and Suit Valuation Act.
22. As could be seen from the Section 35 of the Karnataka Court Fee and Suit Valuation Act deals with the partitions suits, which read as under:
"35. Partition suits. (1) In a suit for partition and separate possession of a share of joint family property or of property owned, jointly or in common, by a plaintiff whose title to such property is denied, or who has been excluded from possession of such property, fee shall be computed on the market value of the plaintiff's share.
(2) In a suit for partition and separate possession of joint family property or property owned, joindy or in common, by a plaintiff who is in joint possession of such property, fee shall be paid at the following rates:-
Rupees fifteen if the value of plaintiff's share is Rs. 3,000 or less; Rupees thirty if the value is above Rs. 3,000 but not more than Rs. 5,000. Rupees one
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hundred if the value is above Rs. 5,000 but below Rs. 10,000 and Rs. 200/- if the value is Rs. 10,000 and above.
(3) Where, in a suit falling under sub-section (1) or sub-section (2), a defendant claims partition and separate possession of his share of the property, fee shall be payable on his written statement computed on half the market value of his share or at half the rates specified in sub-section (2), according as such defendant has been excluded from possession or is in joint possession.
(4) Where, in a suit falling under subsection (1) or sub-section (2), the plaintiff or the defendant seeks cancellation of decree or other document of the nature specified in Section 38 separate fee shall be payable on the relief of cancellation in the manner specified in that section."
23. In view of the above discussions, it is observed that when it is the specific case of the plaintiff that they continued to be in joint possession and enjoyment of the suit schedule property, this Court of the considered view that the Trial Court could not have jumped to the conclusion that plaintiff is not in possession of the property on the basis of entry in revenue records. The cardinal principle which should guide the Court in regard to the suit
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valuation is a averment in the plaint and not the defence taken in the written statement. If that cardinal principle is borne in mind one is not left with any doubt that the suit is one for simple partition and separate possession of their shares which should be decided in accordance with law and after issues are raised and evidence is led. If they are not entitled partition, then the suit will be dismissed. If the suit is decreed and the shares are determined, then the preliminary decree will be drawn up and the final decree proceedings they will be called upon to pay the full Court fee.
24. In view of the above, I do not find any reason to interfere and there are no merits in this writ petition.
On hearing the submissions of the learned counsels for both the parties, on perusal of the material placed on record and on perusal of the impugned Order dated 30.01.2018 passed in O.S.No.175/2011, on the file of Senior Civil Judge and JMFC at Devanahalli, it appears that the trial Court has passed well reasoned Order and no need to intervene in the impugned Order.
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25. The writ petitioner fails to substantiate his contentions and there is no perversity or erroneousness in the Order passed by the trial Court. Hence, this Court proceed to pass the following order with directions:
a) This writ petition is hereby
dismissed.
b) The trial Court is directed to proceed
with the suit on merits in accordance with law.
c) The trial Court is directed to
disposed the suit as expeditiously as
possible i.e., within a period of eight months from the date of receipt of the order.
Sd/-
(DR. K.MANMADHA RAO) JUDGE GSR/BNV