Karnataka High Court
Smt Premaleela vs Sri C Nagappa on 9 March, 2020
Author: S.Sunil Dutt Yadav
Bench: S. Sunil Dutt Yadav
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF MARCH 2020
BEFORE
THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV
WRIT PETITION No.11379/2015 (GM-CPC)
Between:
1. Smt. Premaleela,
W/o N. Hanumaiah,
Aged about 65 years,
R/at No.547, 2nd Cross,
1st Floor, 3rd Stage,
Basaveshwaranagar,
Bengaluru - 560 079,
Died on 15.11.2018.
1(a) Dr. Nandeep H.,
Son of late Hanumaiah,
Aged about 48 years,
Residing at No.547,
1st Block, III Stage,
15th Main, 2nd 'C' Cross,
Basaveshwaranagara,
Bengaluru - 560 079.
1(b) Sri Sanjeev Kumar H.,
Son of lat Hanumaiah,
Aged about 45 years,
Residing at Arab Street,
SYDNEY,
New South Wales,
Australia,
2
Rep. by her GPA Holder,
Dr. Nandeep H.,
Son of late Hanumaiah.
1(c) Smt. Shilpa H.,
Daughter of late Hanumaiah,
Aged about 39 years,
Residing at No.522,
1st Cross, 1st 'A' Main,
8th Block, Koramangala,
Bengaluru - 560 095. ... Petitioners
(By Sri Nagaiah, Advocate)
And:
1. Sri C. Nagappa,
S/o Late Chikkanna,
Aged about 61 years,
R/at No.11/4,
Kurilingappa Boundary,
21st Main,
Marenahalli,
Vijayanagar,
Bengaluru - 560 040.
2. Sri Munikrishnappa,
S/o Late Chikkanna,
Aged about 63 years,
R/at No.16/3/1,
2nd Main Road,
Marenahalli,
Vijayanagar,
Bengaluru - 560 040.
3. Sri Papanna,
S/o Late Chikkanna,
3
Aged about 71 years,
R/at No.21, 3rd Cross,
3rd Main, Attiguppe,
Vijayanagar,
Bengaluru - 560 040.
4. Sri Ravichandra,
S/o Late Chikkanna,
Aged about 37 years.
5. Sri Prabhu,
S/o Late Muniraju,
Aged about 37 years,
Both are R/at No.41,
1st Cross, 14th Main,
Attiguppe,
Vijayanagar,
Bengaluru - 560 040.
6. Smt. Sujatha,
W/o Late Gopalappa,
Aged about 45 years,
R/at No.27, 7th Cross,
7th Main, Subbanna Garden,
Bengaluru - 560 040.
7. State of Karanataka
Rep. by Revenue Secretary,
Vidhana Soudha,
Ambedkar Veedhi,
Bangalore- 560 001. ... Respondents
(By Sri M.J. Alva, Advocate for R1 to R3;
Service of notice to R4 to R6 are dispensed with
and R.7 is impleaded vide Order dated 31.07.2015
Smt. Rashmi Patil, HCGP for R7)
4
This Writ Petition is filed under Articles 226 & 227
of Constitution of India, praying to quash the order
passed by the Principal Senior Civil Judge, Bengaluru
Rural District, Bengaluru in O.S. No.805/2010 dated
27.01.2015 vide Annexure-E and etc.
This Writ Petition coming on for preliminary
hearing in 'B' Group this day, the Court made the
following:
ORDER
The defendant no.4 has challenged the finding of the trial court on additional issue no.1 whereby the court has held that the valuation by the plaintiff is proper while rejecting the contention of defendant no.4 that the suit is not properly valued.
2. The plaintiffs have filed a suit for partition seeking for a judgment and decree to declare that the sale deed dated 12.12.1983 executed by deceased Chikkanna in favour of the defendant no.4 is null and void and not binding on the plaintiffs. The plaintiffs have also sought for carving their share and putting the plaintiffs in separate possession of the same. 5
3. The facts are that the plaintiffs after coming to know of the sale deed executed by the deceased Chikkanna in favour of defendant no.4 on 12.12.1983 have sought for partition of the suit item of the property which is the sole item described as the plaint schedule property. The plaintiffs have valued the plaint by valuing the suit under Section 35 (2) of the Karnataka Court Fees and Suits Valuation Act, 1958 ("the Act", for short) and have paid court fees of Rs.200/-.
4. The defendants in the written statement have disputed the valuation made by the plaintiffs.
5. It is further contended that defendant no.4 was put into possession of the said land and got the land converted from agricultural to non-agriculture purpose, formed layout and sold sites to many persons who are in possession and enjoyment by constructing houses.
6
6. The trial court has framed the issues on the basis of the pleadings and an additional issue has been framed as to whether defendant no.4 proves that the suit is not properly valued and court fee paid is insufficient.
7. The defendant no.4 has filed an application under Section 11 (2) of the Act and had sought for necessary directions to the plaintiffs to value the suit property on the basis of the market value as on the date of the suit and to pay proper court fee on the plaint.
8. The plaintiffs have filed objections to the said application and have contended that no such defence was taken in the written statement and that payment of court fees is a mixed question of fact and law and that the plaintiff was not a party to the alleged sale deed dated 12.12.1983 and is now sought to be declared as null and void and not binding on the plaintiffs and that 7 the plaintiffs are not seeking the relief of cancellation of document.
9. It is further contended that neither the plaintiffs nor the defendant nos.1 to 3 who were the legal representatives of fourth defendant's vendor are owners in possession as on the date of filing of the suit. The trial court has considered the said additional issue no.1 and has decided in the negative while holding that as the plaintiffs are claiming the relief of partition amongst the coparceners, plaintiffs are deemed to be in constructive possession and on the ground that court fees is to be paid on the basis of averments made in the plaint and not on the basis of averments made in the written statement and has rejected the contention of the fourth defendant. The said finding on the additional issue has been challenged in the present proceedings.
10. The learned counsel appearing for defendant no.4 has contended that the property was sold on 8 12.12.1993 to the defendant no.4 and that property was subsequently notified for acquisition and at his instance was deleted from acquisition and was converted on 21.12.1993 for non-agricultural purpose, layout has been formed, sites have been sold and houses were constructed.
11. It is further contended that the question of joint possession as sought to be made out cannot be accepted in light of admissions made in the cross- examination by the plaintiffs wherein it is stated that "zÁªÁ ¸ÀévÀÄÛ MlÄÖ PÀÄlÄA§zÀ ¸Áé¢Ãü £ÀzÀ°è E®è CAzÀgÉ ¸Àj".
12. Reliance is also placed on the revenue records to contend that the nature of property had changed from agricultural to non-agricultural purpose and has sought to rely upon documents to evidence that buildings have come up in the schedule property. Hence, it is contended that it would be impermissible for the plaintiffs to value the suit under Section 35 (2) of 9 the Act and the suit ought to be valued under Section 35 (1) of the Act. Accordingly, it is contended that the impugned order is liable to be set aside.
13. The learned counsel appearing for the plaintiffs on the other hand would contend that they have asserted in their plaint that they are in joint possession of the property, that in light of the schedule property being subject matter of acquisition, the schedule property was left out partition. It is submitted that in the meanwhile sale deed was executed behind the back of the plaintiffs.
14. It is further contended that the plaintiff has specifically averred in Para 6 that the plaintiff is in joint possession of the property along with the defendants and the said property was held jointly and in common for the benefit and advantage of all the coparceners. Hence, it is contended that the finding arrived at by the trial court does not require interference. 10
15. The learned counsel for plaintiffs has also contended that the scope of scrutiny under Article 227 of the Constitution of India is limited and places reliance on the judgment of the Apex Court in the case of High Court of Gujarat v. Hitendra Vrajlal Ashara and another [ 2015 (1) SCJ 112] wherein the Hon'ble Supreme Court at Para 6 held as under:
"It is a well accepted principle of law that the High Court while exercising powers under Articles 226 and 227 of the Constitution does not act as an appellate court and its jurisdiction is circumscribed and confined to correct an error of law or procedural error, if any, resulting in manifest miscarriage of justice or violation of the principles of natural justice. As already seen in the present case, the Division Bench has reappreciated the evidence acting as a court of appeal and we find it difficult to support the judgment of the Division Bench. We have, on facts, found that no procedural irregularity has been committed by the Enquiry Officer in the disciplinary proceedings as the same was conducted in accordance with Gujarat Civil Services (Conduct) Rules, 1971, and principles of natural justice. We noticed that the enquiring authority had elaborately considered the charges leveled against the 11 delinquent officer and rightly held to be proved. In our view, the Enquiry Officer has rightly rendered the finding against the delinquent and same was accepted by the High Court and on its recommendation the order of dismissal was passed by the appointing authority and it is legally justified."
The learned counsel draws specific attention to Para 6 and submits that the High Court does not act as an appellate court and its jurisdiction is circumscribed and confined to correct an error of law or procedural error resulting in manifest miscarriage of justice or violation of the principles of natural justice. Hence, it is contended that the court ought not to intervene in the present matter.
16. The learned counsel for defendant no.4 has relied on the judgment of this court in the case of B. Shabeer Ahmed v. B. Iqbal Ahmed & Others [1965 (2) Mys.L.J. 431 ] and contends that in cases where the plaintiff's title to the property is denied and in the 12 case where he has been excluded from possession of such property, the proper court fee to be paid is by computing the same on the market value of the plaintiff's share.
17. Heard the learned counsel appearing for both sides.
18. The question that arises for consideration is as to whether the finding of the trial court on additional issue no.1 holding that the valuation made by the plaintiff requires interference.
19. A reading of the plaint would reveal that the plaintiffs have asserted that they are in joint possession of the property as made out in Para 6, while in para 4 and 5 they have stated that the property was left out from partition as it was the subject matter of acquisition and hence have sought for carving out of their share with respect to the schedule property. 13
20. The contention of the defendants being that plaintiffs are not in joint possession and during cross- examination, it is contended that the plaintiff himself has admitted that he is not in joint possession and in light of subsequent developments, which are matters of fact and are not seriously in dispute to the effect, that land has been converted from agricultural to non- agricultural purpose, layout has been formed, sites have been formed and sold to different purchasers into possession and buildings are put up, the legal fiction of joint possession cannot be extended in the facts of the present case.
21. However, the valuation in case of partition suits is a matter that has been considered by several judgments of this court and in particular, reference can be made to the judgment of Division Bench of this court in the case of B.S.Malleshappa v. Koratagigere B. Shivalingappa and Others [ ILR 2001 KAR 3988] 14 wherein the Division Bench has laid down the following conclusions at Para 11 as under:
11. We may now conveniently summarise the principles relating to Court fee in regard to suits for partitions and appeals there from:
(i) Payment of Court fee will depend on plaint averment alone. Neither the averments in the written statement, nor the evidence nor the final decision have a bearing on the decision relating to Court fee.
(ii) The scope of investigation under Section 11 is confined practically to determine two points: (i) Undervaluation of the subject-matter of the suit; and (ii) category under which the suit falls, for the purpose of Court fee. Once the category of suit is determined with reference to plaint averments, the Court cannot subsequently change the category on the basis of the averments in the written statement or on the basis of evidence and arguments. In short, if the suit is found to fall under Section 35(2) of the Act on the plaint averments, the Court has no power to convert the suit as one falling under Section 35(1) of the Act, at any point of time, much less while rendering judgment. The only exception is when the plaint is amended.
(iii) The plaintiff in a suit being dominus litis has the choice of filing a suit of a 15 particular nature or seek a particular relief.
Neither the defendant nor the Court can alter the suit as one for a different reliefer as a suit falling in a different category and require the plaintiff to pay Court fee on such altered category of suit.
(iv) If the plaintiff claims that he is in joint possession of a property and seeks partition and separate possession, he categorises the suit under Section 35(2) of the Act. He is therefore liable to pay Court fee only under Section 35(2). If on evidence, it is found that he was not in joint possession, the consequence is that the relief may be refused in regard to such property or the suit may be dismissed. But the question of Court treating the suit as one falling under Section 35(1) of the Act and directing the plaintiff to pay the Court fee under Section 35(1) of the Act does not arise. Even after written statement and evidence (which may demonstrate absence of possession or joint possession), if the plaintiff chooses not to amend the plaint to bring the suit under Section 35(1) and pay Court fee applicable thereto, he takes the chance of suit getting dismissed or relief being denied.
(v) On appreciation of evidence, if the Court disbelieves the claim of plaintiff regarding joint possession, it can only hold that the case does not fall under Section 35(2) and therefore plaintiff is not entitled to relief. It cannot, in the judgment, hold that the case of plaintiff should be categorised under Section 35(1) nor direct the plaintiff to 16 pay Court fee on market value under Section 35(1) of the Act.
(vi) The Court fee payable on an appeal is the same as the Court fee payable on the suit. Therefore, even if the Trial Court holds that plaintiff was not in joint possession or that plaintiff had been excluded from possession, there will he no change in the Court fee payable in an appeal by the plaintiff against such decision. The Court fee on the appeal will still be the same as the Court fee paid on the plaint in the Court of first instance.
The court at Para 11 (iv) has clearly opined that even after written statement and evidence, if it is found that the plaintiff is not in joint possession, plaintiff takes the risk of suffering an order, but that itself would not result in giving necessary directions to the plaintiff to re-value the plaint in terms of Section 35 (1) of the Act.
22. In a suit for partition, it is the averment in the plaint that needs to be taken note of. Till the shares of the parties are carved out, parties are deemed to be in constructive possession. Taking note of the observations 17 of the Division Bench at Para 11 (iv) as noticed above, in the worst scenario, even if the court were come to a conclusion that parties not in joint possession, the plaintiff suffers the risk of having an adverse order, but there can be no direction that valuation is to be re-made as per Section 35 (1) of the Act. This court in RFA No.19/2013 c/w W.P.No.35239/2013 dated 27.02.2020 has also dealt this question and arrived at a similar conclusion.
23. Accordingly, this Court finds that the reasons assigned by the trial court on two grounds that
1) the plaintiffs are in law, construed to be in joint possession and 2) that the valuation is as per the averments of the plaint, calls for no interference.
Accordingly, the Writ Petition is rejected.
Sd/-
JUDGE Np/-