Karnataka High Court
Smt Gowramma vs Andyappa on 29 January, 2018
Author: B.Veerappa
Bench: B. Veerappa
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JANUARY, 2018
BEFORE
THE HON'BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION NO.3062/2018(GM-CPC)
BETWEEN:
SMT. GOWRAMMA,
AGED ABOUT 52 YEARS,
SON OF LATE KRISHNAPPA,
NO.15, DODDA KUPPANNA
NURSERY LALABGH
SIDDAPURA,
SOMESHWARANAGAR,
JAYANAGAR I BLOCK,
BANGALORE - 560011.
... PETITIONER
(BY SRI B. R. VISWANATH, ADVOCATE)
AND:
1. ANDYAPPA,
AGED ABOUT 70 YEARS,
SON OF CHIKKAVENKAPPA,
(SINCE THE DEF NO 1
DIED ON 02.09.2008 LEAVING
BEHIND HIS LRS D-2, D-3 AND
PLAINTIFF ALREADY ON RECORD)
2
VENKATESH,
AGED ABOUT 38 YEARS,
SON OF ANDYAPPA,
(DEF NO 2, DIED LEAVING
BEHIND HIS LRS)
1a. SMT. SHANTHAMMA,
AGED ABOUT 45 YEARS
WIFE OF LATE VENKATESH,
1b. MASTER RAMESH,
AGED ABOUT 25 YEARS
SON OF LATE VENKATESH
1c. KUM. PRIYANKA,
AGED ABOUT 16 YEARS
D/O LATE VENKATESH,
NO.1(b) AND 1(c) ARE THE MINORS,
REP. BY THEIR MOTHER AS
NATURAL GUARDIAN
SMT. SHANTHAMMA i.e.,
DEF. NO.2(a)
ALL ARE RESIDING AT
SURUJAKKANAHALLI
KASABA HOBLI,
ANEKAL TALUK,
BANGALORE RURAL DISTRICT.
2. SRI KRISHNAPPA,
AGED ABOUT 47 YEARS,
SON OF ANDYAPPA,
RESIDING AT NO 15,
DODDA KUPPANNA NURSERY,
LALBAGH SIDDAPURA,
3
SOMESHWARANAGAR,
JAYANAGAR I BLOCK,
BANGALORE - 560011.
3. SMT. RAJAMMA,
AGED ABOUT 55 YEARS,
WIFE OF LATE SUNDRAPPA,
RESIDING AT NO 15,
GREEN NURSERY,
LALBAGH SIDDAPURA,
SOMESHWARANAGAR,
JAYANAGAR I BLOCK,
BANGALORE - 560011.
... RESPONDENTS
(BY SRI KIRAN V. RON, ADVOCATE FOR
SRI C. M. POONACHA, ADVOCATE FOR C/R3;
VIDE ORDER DATED 29.01.2018 NOTICE TO R1(a) TO
R1(c) AND R2 IS DISPENSED WITH)
******
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DATED 25.11.2017 ON I.A.NO.1/2015 IN
O.S.NO.2551/2008 BY THE 34TH ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, BANGALORE VIDE ANNEXURE-F.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
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ORDER
The plaintiff filed the present writ petition against the order dated 25.11.2017 on I.A. No.1/2015 made in O.S. No.2551/2008 allowing the application filed by the 4th defendant under Order XIV Rule 2 r/w Section 11(2) of the Karnataka Court-fees and Suits Valuation Act, 1958 (KCF & SV Act' for short) and directing the plaintiff to calculate the market value of the suit schedule property and pay the court fee accordingly. The plaintiff was also directed to file fresh valuation slip and proceed with the case and also directed the office to collect the deficit court fee.
2. The plaintiff filed the suit for partition and separate possession of her 1/4th share in the suit schedule property by metes and bounds and for permanent injunction restraining the defendants from interfering with the suit schedule property and also for mesne profits under Order XX Rule 12 of Code of Civil Procedure from the date of the 5 suit till she was put in possession of her share, contending that the plaintiff and defendant Nos.1 to 3 are members of the Hindu joint family and there was no partition in the joint family and therefore he is entitled to share etc.
3. The defendant Nos.1 to 3 not filed the written statement. The defendant No.4 filed the written statement and denied the plaint averments and contended that the suit filed by the plaintiff against her is not maintainable and there is no cause of action to file the suit. The plaintiff and defendants 1 to 3 are strangers to the suit schedule property and they have no right, title and interest in respect of the suit schedule property. In the written statement, 4th defendant has also stated that she and her family members are residing in the suit schedule property and are growing various types of nursery plants. She got the property by virtue of the occupancy rights granted by the Special Tahsildar, Land Tribunal, Bangalore North taluk on 9.10.1984 and she has put up barbed wire fencing in and 6 around the schedule property. She is in possession and enjoyment of the same. Therefore sought for dismissal of the suit.
4. When the matter was posted for cross-examination of PW.1, defendant No.4 filed an application under Order XIV Rule 2 of Code of Civil Procedure r/w Section 11(2) of the KCF & SV Act to treat the issue regarding court fee as a preliminary issue and conduct an enquiry before proceeding with the trial on other issues. It is the case of the defendant No.4 that the plaintiff filed the suit for partition and separate possession of 1/4th share in the suit schedule property and also for Permanent Injunction. The issues in the suit are already framed and there is an issue with regard to the sufficiency of the Court fee paid by the plaintiff. In view of the provisions of Section 11(2) of the KCF & SV Act, the Court fee has to be determined before recording of evidence on merits of the claim and it was specifically stated that neither the plaintiff nor the 7 defendants are in possession and enjoyment of the suit schedule property. Therefore enquiry with regard to court fee has to be treated as preliminary issue and the said issue has to be decided before commencement of evidence and hence sought to allow the application.
5. The same was opposed by the plaintiff by filing objections to the application filed by the 4th defendant contending that the application filed is not maintainable. The Court fee paid under Section 35(2) of the KCF & SV Act is legally valid and the plaintiff need not pay any court fee on the market value, since the plaintiff and defendant nos.1 to 3 are in joint possession and enjoyment of the suit schedule property and no where in the plaint, it is asserted that the plaintiff is ousted from joint possession. Therefore sought for dismissal of the application.
6. The trial Court considering the application and the objections and without holding any enquiry, has proceeded 8 to allow the application filed by the 4th defendant under Order XIV Rule 2 of Code of Civil Procedure r/w Section 11(2) of the KCF & SV Act. Hence the present writ petition is filed.
7. I have heard the learned counsel for the parties to the lis.
8. Sri B.R. Viswanath, learned counsel for the petitioner vehemently contended that the impugned order passed by the trial Court allowing the application filed by the 4th defendant under Order XIV Rule 2 of Code of Civil Procedure r/w Section 11(2) of the KCF & SV Act is erroneous and contrary to the material on record. He would further contend that it is specifically stated in paragraph - 6 of the plaint that the plaintiff and defendant Nos.1 to 3 are in joint possession and enjoyment of the suit schedule property and the khatha of the schedule property still standing in the name of late Rangaswamy, grand-father of plaintiff and defendant Nos.1 to 3 and therefore the 9 provisions of Section 35(2) attracts and not Section 35(1) of the KCF & SV Act. The same has not been considered by the trial Court. He further contended that the trial Court proceeded to direct the plaintiff to calculate the market value of the suit schedule property and pay the Court fee accordingly mainly on the ground that the suit schedule property is located in prime locality of Bengaluru city and the same has got much market value and is getting enhanced from time to time and hence the Court fee of Rs.225/- paid by the plaintiff is obviously insufficient and not in accordance with the market value and without any basis. Therefore he sought to allow the writ petition by quashing the impugned order passed by the trial Court.
9. In support of his contentions, learned counsel for the petitioner relied upon the decision of this Court in the case of SMT. NANJAMMA .vs. SMT. AKKAYAMMA (D) BY LRs. reported in 2015(2) KCCR 1437 (DB) wherein this Court while considering the provisions of Section 35(1) and 10 35(2) of the KCF & SV Act held that Court should look to the averments in the plaint and not the written statement or the evidence. Mere averment in the plaint that the plaintiffs and defendants are in joint possession is sufficient, notwithstanding the fact they are living separately, even at two different places, because in law it makes no difference. In case of a property belonging to the coparcenary, joint family or co-ownership, possession of one coparcener or a member of the joint family or a co-owner is the possession of all. To hold that the plaintiff is in joint possession on the date of the suit, it is not necessary that the plaintiff should be in actual physical possession of the whole or part of the property which is the subject matter of the suit. Even the plaintiff need not be getting a share in the income from the property. So long as the plaintiff has a right to a share, the law presumes that he is in joint possession.
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10. Per contra, Sri Kiran V. Ron for C.M. Poonacha, learned counsel for caveator/Respondent NO.3 - 4th defendant submits that 4th defendant filed an application under Order XIV Rule 2 r/w Section 11(2) of the KCF & SV Act to treat the issue regarding court fee as a preliminary issue and conduct an enquiry with regard to the same before proceeding with the trial and the same was allowed and the trial Court directed the plaintiff to calculate the market value of the suit schedule property and pay the court fee accordingly. He fairly submits that there is no enquiry as contemplated. He further draw the attention of the Court to paragraph-7 of the plaint wherein it is stated that the defendant Nos.1 to 3 are enjoying the property without giving any share to the plaintiff and the defendant No.4 is a stranger and she has created some documents of title and she has been professing to sell the schedule property with the collusion of defendant Nos.1 to 3 and the defendants have colluded with one another and playing 12 fraud on the plaintiff without allotting legitimate share to her. The above categorical statement made in paragraph- 7 of the plaint clearly indicates that plaintiff is not in joint possession and therefore court fee has to be paid under Section 35(1) of the KCF & SV Act. Therefore he contended that the trial Court ought to have held an enquiry as contemplated and as prayed for in the application, but the trial Court not held any enquiry and proceeded to pass the impugned order.
11. Having heard the learned counsel for the parties, it is an undisputed fact that the present petitioner who is the plaintiff before the trial Court filed the suit for partition and separate possession in respect of the suit schedule property contending that the plaintiff and defendant Nos.1 to 3 are members of the joint family and there is no partition and therefore he is entitled to share. The defendant Nos.1 to 3 have not filed the written statement. The defendant No.4 filed the written statement and denied 13 the plaint averments and contended that she is in possession and enjoyment of the suit schedule property by virtue of the occupancy rights granted by the Tribunal on 9.10.1984 and the very suit filed by the plaintiff for partition is not maintainable and therefore she sought for dismissal of the suit.
12. It is also not in dispute that on the basis of the averments made in the plaint and the written statement, the trial Court framed seven issues on 20.2.2010. Issue No.6 was "whether court fee paid is insufficient". In view of the issues framed, the 4th defendant filed an application under Order XIV Rule 2 r/w Section 11(2) of the KCF & SV Act to treat the issue regarding court fee as preliminary issue and conduct an enquiry before proceeding with the trial on the other issues, reiterating the averments made in the written statement. The said application was opposed by the plaintiff, reiterating the averments made in the plaint. 14
13. By the impugned order, the trial Court directed the plaintiff to calculate the market value of the suit schedule property and pay the court fee mainly on the ground that the suit schedule property is located in prime locality of Bengaluru city and the same has got much market value and is getting enhanced from time to time and the court fee of Rs.225/- paid by the plaintiff is obviously insufficient and not in accordance with the market value. The trial Court before proceeding to direct the plaintiff to pay court fee on the market value of the suit schedule property has not determined as to why the plaintiff has to pay the court fee on the market value when the plaintiff sought partition on the ground that the plaintiff and defendants are in joint possession. Prima facie the impugned order was passed by the trial Court without holding any enquiry for determination of court fee as contemplated under section 11(2) of the KCF & SV Act, is illegal and cannot be sustained.
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14. It is also not in dispute that in the application filed by the 4th defendant, it is prayed to treat the issue regarding court fee as a preliminary issue and conduct an enquiry with regard to payment of court fee by the plaintiff. Without holding enquiry, merely on the ground that the property is located in prime locality of Bengaluru city and the same has got much market value and is getting enhanced from time to time, the trial Court directing the plaintiff to pay the court fee on the market value of the suit schedule property is not just and proper. That is not the law contemplated under the provisions of Section 11(2) of the KCF & SV Act.
15. Several contentions urged by the learned counsel for the petitioner - plaintiff that the suit schedule property is a joint family property of the plaintiff and defendant Nos.1 to 3 and they are in joint possession. The same is disputed by the contesting defendant (4th defendant). The 16 specific plea of the plaintiff is that is 4th defendant is a stranger and the possession of the suit schedule property by the said defendant has to be determined by the trial Court after holding enquiry as contemplated. The same has not been done in this case.
16. In view of the aforesaid reasons, the writ petition is allowed. The impugned order passed by the trial Court dated 25.11.2017 on I.A. No.1/2015 made in O.S. NO.2551/2008 is quashed. The matter is remanded to the trial Court for reconsideration of I.A. NO.1/2015 strictly in accordance with the provisions of Section 11(2) of the Karnataka Court-fees and Suits Valuation Act, 1958 and the law declared by this Court and the Supreme Court time and again and pass orders in accordance with law.
Sd/-
JUDGE Gss/-