Karnataka High Court
A Basker vs Smt Yogini on 9 January, 2018
Author: B.Veerappa
Bench: B. Veerappa
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JANUARY, 2018
BEFORE
THE HON'BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION NO.622/2018(GM-CPC)
BETWEEN:
A. BASKER,
S/O MADHOJI RAO,
AGED 60 YEARS,
R/AT NO.2-24-5,
ADARSHA NAGAR,
JELLIGUDDE, BAJAL,
MANGALORE, D.K DISTRICT-575001.
... PETITIONER
(BY SRI G.H. RAVIKUMAR, ADVOCATE ON BEHALF OF
SRI SACHIN B. S., ADVOCATE)
AND:
SMT. YOGINI,
DEAD BY HER LRS,
1. SMT. PREMALATHA S. HEGDE,
W/O SATISCHANDRA HEGDE,
AGED ABOUT 62 YEARS,
R/AT ALANKAR HOUSE,
AJJARKADU, UDUPI-576101.
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2. SMT. SUREKHA D.SHETY,
W/O DIVAKAR SHETTY,
AGED ABOUT 60 YEARS,
R/AT BLUE DIAMOND, 101,
SHIVABAGH, KADRI,
MANGALORE-575001.
3. PRABHAKAR ADAPPA,
S/O LATE SEETHARAMA ADAPA,
AGED ABOUT 58 YEARS,
R/AT PAVITHRA, NEAR BALIGA STORES
BEJAI, MANGALORE-575001.
4. SMT. MALLIKA R. BHANDARY,
W/O RAMDAS BHANDARY,
AGED ABOUT 58 YEARS,
R/AT KADAKKALHOUSE,
ADAPE VILLAGE, PADIL POST,
MANGALORE-575001.
5. SMT. SHYAMALATHA SHETTY,
W/O SATISH SHETY,
AGED ABOUT 56 YEARS,
R/AT MAIREGUTHU HOUSE,
BAJAL PAKALADKA,
MANGALORE-575001.
... RESPONDENTS
****
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DATED 22.11.2017 PASSED IN MA
NO.43/16 ON THE FILE OF 3RD ADDITIONAL SENIOR CIVIL
JUDGE MANGALORE D.K. VIDE ANNEXURE-A.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
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ORDER
The defendant filed the present writ petition against the order dated 22nd November 2017 made in M.A. No.43/2016 on the file of the III Addl. Senior Civil Judge, Mangaluru, Dakshina Kannada allowing the appeal and setting aside the order dated 21.10.2016 passed by the trial Court in O.S. No.70/2008 on the file of the III Addl. Civil Judge & JMFC, Mangaluru.
2. The plaintiff filed the suit for ejectment directing the defendant to deliver and hand over the vacant possession of the schedule premises to the plaintiff within the prescribed time. The plaintiff has also sought for direction directing the defendant to pay the past mesne profits for the months of November and December 2017 at the rate of Rs.1,000/- per month. The prayer also discloses that the relief claimed is valued on the basis of 12 months license fee at the rate of Rs.1,000/- per month (i.e., 4 Rs.1,000/- x 12 = Rs.12,000/-) and past mesne profits for the months of November-2017 and December-2017 at the rate of Rs.1,000/- per month (Rs.1,000/- x 2 = Rs.2,000/-) and Rs.500/- towards cost of notice, in total Rs.14,550/-. Thus the relief claimed in the suit was valued at Rs.14,550/-. Accordingly, the plaintiff paid the court fee on the plaint contending that he is the owner of the property in question. In the plaint it is stated that the defendant was in possession of the schedule premises as a permissive occupier or licensee under the plaintiff, free of rent or license fee on humanitarian grounds and he has no right of whatsoever nature in it. Therefore the plaintiff filed the suit for the reliefs sought for.
3. The defendant filed the written statement denying the entire plaint averments and contended that he has constructed the plaint schedule premises in the year 1988 in the property measuring 3 cents in Sy.No.79 of Bajal village and he is the absolute owner of the said premises 5 and he has perfected right, title and interest in respect of the land by way of adverse possession and therefore sought for dismissal of the suit.
4. The trial Court framed as many as seven issues and issue No.6 has been treated as preliminary issue. The trial Court considering the arguments on both sides has recorded that the plaintiff has to value the suit schedule property on the basis of market value of the property. The report by DW.2 and also the guidelines issued by Sub- Registrar clearly indicate that the value of suit property exceeds the amount of Rs.5,00,000/- and therefore the trial Court has no pecuniary jurisdiction to try the suit. Accordingly, the trial Court directed the office to return the plaint to the plaintiffs to present the same before the proper Court.
5. Against the said order, the plaintiffs filed M.A. No.43/2016 before the III Addl. Senior Civil Judge, 6 Mangaluru, who after hearing both the parties by its order dated 22.11.2017 allowed the appeal and set aside the order dated 21.10.2016 passed by the trial Court and remanded the matter to the trial Court for fresh disposal and also directed the trial Court to consider the valuation filed by the plaintiffs and dispose of the suit in accordance with law. Against the said Judgment, the present writ petition is filed.
6. I have heard the learned counsel for the petitioner.
7. Sri G.H. Ravikumar, learned counsel appearing on behalf of Sri Sachin B.S. submits that the impugned order passed by the appellate Court reversing the order passed by the trial Court is perverse and erroneous and contrary to the material on record. The reasons assigned in the impugned order are contrary to the provisions of the Karnataka Court Fees & Suits Valuation Act, 1958 ('KCF & SV Act' for short) and unsustainable. He would further 7 contend that the Judgment relied upon by the lower appellate Court has no application to the facts and circumstances of the present case. He further contended that as per the valuation report of the Consulting Engineer Contractor, Mangalore City Corporation, the cost of the land and value of the building of the schedule property exceeds the pecuniary jurisdiction of the trial Court and therefore the trial Court was justified in returning the plaint to the plaintiffs and the appellate Court ought not to have interfered with the same. Therefore he sought to quash the impugned order passed by the appellate Court and to restore the order passed by the trial Court.
8. Having heard the learned counsel for the petitioners, it is not in dispute that the plaintiff filed the suit for ejectment directing the defendant to deliver and hand over the vacant possession of the schedule premises to the plaintiff within the time prescribed. According to the plaintiff, the relief claimed is valued on the basis of 12 8 months license fee at the rate of Rs.1,000/- per month (i.e, Rs.1,000 x 12 = Rs.12,000/-) and past mesne profits for the months of November and December 2017 at the rate of Rs.1,000/- per month (Rs.1,000 x 2 = Rs.2,000/- ) and Rs.550/- towards cost of notice, in total Rs.14,550/-. Accordingly, the Court fee was paid on the said amount. It is specifically stated in the plaint that the plaintiff is the owner of the property in question and the defendant had requested the plaintiff to permit him to occupy the schedule premises for a temporary period and accordingly, the plaintiff allowed him to occupy the schedule premises as a licensee or permissive occupier, free of rent or license fee on humanitarian grounds. Thus the defendant was in possession of the schedule premises as a permissive occupier or licensee under the plaintiff and he has no right of whatsoever nature in the property. The same is disputed by the defendant and filed the written statement stating that he has constructed the plaint schedule premises in the 9 year 1988 in the property measuring 3 cents in Sy.No.79 of Bajal village and he is the absolute owner of the said premises and he has perfected right, title and interest in respect of the land by way of adverse possession. Except stating so, the defendant has not filed any counter-claim. The pleadings of the plaint clearly indicate that suit filed for eviction and the defendant is in permissive occupation.
9. The lower appellate Court considering the provisions of Section 30 of the Karnataka Court Fees and Suits Valuation Act and the dictum of this Court in the case of B. KRISHNAPPA .VS. SMT. CHANDRIKA reported in 2007(1) Kar.LJ 468 held that the suit could only be brought to enforce the revocation of license and for that purpose necessarily the court fee has to be paid only in accordance with law governing relief relating to the grant or revocation of license. Section 30 of the KCF & SV Act adumbrates with clarity that the suit relating to easements is to be valued as per the said provisions. The viniculum juris that 10 exist between the plaintiffs and the defendant is licensor and licensee and as such the relationship is clearly governed under Section 52 of the Indian Easements Act, 1982. Hence the suit has to be treated as suit relating to easements. Therefore, for the purpose of the Court fee and jurisdiction, the suit has to be valued and fee shall be computed on the amount at which the relief sought is valued in the plaint, which amount should not be less than Rs.1,000/-.
10. The lower appellate Court by perusing the impugned order of the trial Court, has recorded a finding that the learned trial Judge has not properly understood the ratio laid down in the above decision and the learned Judge has returned the plaint on the basis of the decision relied by the defendant's counsel in the case of MOHAMMED MIRAJUDDIN .vs. M.A. IQBAL AND OTHERS reported in 2000(6) KLJ 431. In the said decision, this Court held that " Section 24(a), 7 and 11 - market value - 11 Determination of court fee payable on such determination - Valuation made by Sub-Registrar in accordance with guidelines issued by the State Government has to be accepted". Accordingly, the trial Court returned the plaint stating that it has no pecuniary jurisdiction.
11. The lower appellate Court further observed by perusing the plaint and Sections 24(a), 21 and 30 of the KCF & SV Act that the plaintiffs have filed the suit for recovery of possession from the defendant and in the plaint they have stated that the defendant occupied the schedule premises as a licensee, free of rent on humanitarian grounds. Accordingly, they valued the suit as per Sections 21 and 29 of the KCCF & SV Act. Further, in the case on hand the possession of the defendant in respect of the suit schedule property is only as a licensee. Therefore, the suit has to be treated as suit relating to easement. Hence the specific provision under Section 30 would be correct provision under which the court fee has to be paid. The 12 plaintiffs have paid court fee on a sum of Rs.14,550/- and this needs requirement. Further in the case on hand, the plaintiffs have come up with a specific plea that they have withdrawn the permission granted to the defendant to be in occupation of the schedule premises or that they have revoked the licence. In such a suit, no issue arise for determination either relating to title or interest of the plaintiffs or defendant in respect of the immovable property in question. Thus the suit is the simplicitor of ejectment of the occupant on revocation of license. Hence the trial Court has jurisdiction to grant the relief sought for. Therefore the evidence of the defendant and his witness is not necessary for deciding the pecuniary jurisdiction of the Court. Accordingly, the lower appellate Court allowed the appeal and set aside the order of the trial Court dated 21.10.2016 and remanded the matter to the trial Court for fresh disposal on merits. The same is in accordance with law. The reasons assigned and the conclusion arrived at by 13 the lower appellate Court are just and proper. The petitioner has not made out any ground to interfere with the impugned order passed by the lower appellate Court reversing the order passed by the trial Court, in exercise of powers under Article 227 of the Constitution of India.
Accordingly the writ petition is dismissed.
Sd/-
JUDGE Gss/-