Karnataka High Court
Sri Suresh Salariya vs Smt Rita Vijay Suri on 9 June, 2011
Author: B.S.Patil
Bench: B.S.Patil
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 9T# DAY OF JUNE, 2011
BEFORE |
THE HON'BLE MR.JUSTICE B.S. PATIL vs
W.P.Nos.20736- 44/2011 (GM- CHO)
BETWEEN
SRI SURESH SALARIYA
AGED ABOUT 60 YEARS,
S/O LATE K C SALARIYA. .
R/A NO. 12/1, VERSOVA LAYOUT,
C.V.RAMANAGAR POST.
BANGALORE-93
SRI. RAJANI SATISH SALARIYA
AGED ABOUT 56 YEARS, :
W/O LATE SATISH SALARIVA
SRI. SANJAY SALARIVA™."
AGED ABOU'E.54 YEARS,
S/O LATE SATISH SALARIVA |
SRI. AJAY SALARIVA - oe
AGED ABOUT 32 YEARS, ~°
S/O LATE SATISH SALARIYA
SMT. RADHIKA. SALARIYA
AGED. ABOUT 29 ¥EARS,
~~. D/O LATE SATISH SALARIYA
"2, TC.5°ARE R/A NO. 777, IST STAGE,
~ INDIARANAGAR POST, BANGALORE-38
SMT. CHANDA SALARIYA
AGED ABOUT 51 YEARS,
". W/O LATE ASHOK SALARIYA
R/A NO. 91/4, OLD NO. 168,
. 82,72, NAGAVARAPALYA, C.V.RAMANAGAR,
', BANGALORE-93
SMT. SAPNA SHARMA W/O RAVI SHARMA
AGED ABOUT 33 YEARS,
|
No
:
R/A NO. 60, AHOKA VENUE
K.R. GARDEN
8. SMT. RACHANA CHOPRA D/O LATE ASHOK SALARIYA~
AGED ABOUT 29 YEARS, .
R/A NO. 577, SECTOR 17, ASHIRWAD.
FARIDABAD, HARYANA-121 OO1
9. SRI. SUBHASH SALARIYA S/O LATE K C SALARIY.
AGED ABOUT 68 YEARS,
R/A NO. 12/1, VERSOVA LAYUOUT,
C.V.RAMANAGAR POST, me
BANGALORE-93. a "... PETITIONERS, ©
(BY SRI UMASHANKAR M.LN., ADV.}.. >
AND
I. SMT RITA VIJAY SURI
AGED 54 YEARS, .
D/O K C SALARIYA, R/A 5G 304.
GREEN ME ADOWS, LOKE {ANDWALA Cok APLEX,
KANDIVALi (EAST) 400. i 201. :
ho
SR. SUDHIR § SAT, ART YA s/o i cC SALARIYA
AGED 57 YEARS.' -
R/A.NO. 168 ©LD,:
NEW 91/3, NAG# AVARAPA LYA,
CV RAMAN NAGAR POST, "BANGALORE-93
3. SMT. ADARSH SALARIYA D /O LATE K C SALARIYA
AGED'71 YEARS,
- R/A #151, ARAM NAGAR II,
. ANDHERI VERSOVA ROAD,
~ > MUMBAE 400 061. ... RESPONDENTS
"These writ petitions are filed under Articles 226 and 227
'of the Constitution of India praying to set aside the order dated
".97,5.201). passed by the XXVIII Addl.City Civil Judge,
Rengaiore, vide Annexure-A and etc.
. These writ petitions coming on for preliminary hearing
"this day, the Court made the following: -
ORDER
1. Issue No.7 which is tried as a preliminary issue and which pertains to valuation of the plaint and the payineiit of the Court fee is answered in favour of the plaintiff and againsi.the -.
by defendants | to 9.
2. The suit is filed by the 1st respondent who is the sister of the petitioners seeking partition. and separate possession of her 1/7 share in the suit schedule hifoperty," She mas contended in the plaint that the suit schedule propetty has devolved upon her along with her brothers joinuy, afier the death of her father and that they are in joint and construdtive possession, in which she has got 1/7 ti share: The defendants have set up a case of oral partition which according "to them has been subsequently
- reduced into writing vide Partition Deed dated 17.05.1981.
3. es The Triat. Court after holding an enquiry on the preliminary issue has found that the Court fee paid under Sub-
"os dlause (2) of Section 35 of the Karnataka Court Fee and Suits os Valuation Act at %.200/- cannot be found fault with as the plaint averments disclose that she was in constructive : possession of the property wherein she has got 1/7' share. The ae S i ~ 4 -
Court below has also found that she was not expressly excluded from the possession of the suit schedule property after the death of her father.
4. As regards the Partition Deed produced and relied tipon me by the defendants, the Court below has. found. that whether | document could be a matter for trial and that the 'saitie could. not detain the Court from answering the preliminary issue raised regarding payment of Court fee. ss,
5. Learned counsel for she petitioners contends that the Court below could, not have revorded 'a finding regarding the actual possession of the plaintiff of 'the suit schedule properties without recording a positive' finding with regard to the partition and the allotrient of shares inder the said partition to the other "memers of the family-cxcluding the plaintiff. The contention is ° that since the property was the self-acquired property of the father and the defendants, the fact that partition was effected excluding 'the plaintiff and dividing the property among other | heirs would clearly disclose that she was excluded from the ; share in the property.
fy a | | . we ~5 -
6. Having heard the learned counsel for the petitioner and on perusal of the pleadings and the records, it is seen that the question of valuation of the suit and payment of Coure. fee is mainly based on the plaint averments. In the oe sete and constructive possession of the property upon _ death of her father. The relationship-.. betwern plant and the» defendants as that of sister and brothers is tot. in dispute, The fact that the father had died belore the filing of the. suit is also not in dispute. Therefore, the Court below, based on the plaint averments and the: documents cin record: has answered the preliminary bssue holding" that the valuation made and the Court fee' 'paid ag per Sec ction 3512) of the Karnataka Court Fee and Suits Valuation . Act ¢ Ort. the suit filed for partition is just and appropriate. * do not find. atty illegality or error of jurisdiction in the order passed by tite Court below warranting interference in exercise of the writ jurisdiction.
7. 'The . question as to whether there was a_ partition mo ° whiereunder the brothers had got properties divided and that the "sister-was excluded from it and therefore she is not entitled to
- maintain the suit is a matter for trial as rightly held by the "Court. below. Therefore, that question has been rightly kept
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open and no prejudice is caused to the interest of the defendants in the Trial Court because of the finding with regard to the valuation of the suit and the payment of Court fee.
Therefore, it is made clear that the said finding recorded will 'Not,
8. With the above observations, 'these writ. petitions. are disposed of declining to interfere with the impugned order.
"Sq/-
JUDGE