Karnataka High Court
Smt. V. Rani vs Smt. V. Subbamma on 29 October, 2015
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29th DAY OF OCTOBER, 2015
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
W.P.NO.55876/2014 (GM-CPC)
BETWEEN:
SMT. V. RANI
AGED ABOUT 37 YEARS
D/O LATE VENKATAMUNIYAPPA
W/O RAJU
NOW PRESENTLY RESIDING AT NO
"SRI VENKATACHALAPATHY NILAYA"
N.M.C. MAIN ROAD,
VASAMANE CIRCLE LEFT SAID
BHADRAVATHI TOWN
SHIVAMOGGA DISTRICT. ... PETITIONER
(BY SRI. PRAVEEN R.J.S., ADVOCATE FOR
SRI. G. PAPI REDDY, ADVOCATE)
AND:
1. SMT. V. SUBBAMMA
AGED ABOUT 76 YEARS
W/O LATE LVENKATAMUNIYAPPA
- SINCE DEAD, REPRESENTED BY HER
LR'S R-2 TO R-8 WHO ARE ALREADY
ON RECORD
2. SRI. V. ANANTHA RAMU
AGED ABOUT 51 YEARS
S/O LATE VENKATAMUNIYAPPA
3. SRI. V. PADMANABHA
AGED ABOUT 41 YEARS
2
S/O LATE VENKATAMUNIYAPPA
4. SRI V. SRINIVAS
AGED ABOUT 39 YEARS
S/O LATE VENKATAMUNIYAPPA
ALL THE DEFENDANTS 1 TO 4 ARE
RESIDING AT: NO.7/2,
(OLD NO. 138/7 AND 88/1)
1ST CROSS ROAD,
MADIVALA, BANGALORE-68.
5. SMT. NAGALAKSHMI
AGED ABOUT 53 YEARS
D/O LATE VENKATAMUNIYAPPA
W/O VENKTASUBBAIAH
RESIDING AT NO.2/26
SANTHINAGAR, AKKSAYAPALLI,
K.V. NAGAR POST, KADAPPA,
ANDRAPRADESH-516003.
6. SMT. V. SHARADA
AGED ABOUT 53 YEARS
D/O LATE VENKATAMUNIYAPPA
W/O LATE SRINIVAS
R/AT NO. 439, SOMESHWARA SLUM
SIDDAPURA, 1ST BLOCK JAYANAGAR
BANGALORE-560 001.
7. SMT. V. MANJULA
AGED ABOUT 45 YEARS
D/O LATE VENKATAMUNIYAPPA
W/O THAYAGAR,
R/AT NO. 11/1, VENKATACHALA
REDDY BUILDING,
OLD POLICE STATION ROAD,
MADIVALA,
BANGALORE-66.
8. SMT. V.PADMA
AGED ABOUT 43 YEARS
D/O LATE VENKATAMUNIYAPPA
W/O JAYARAM
3
R/AT MACHENAHALLI CILONY
BHUPASANDRA POST,
BANGALORE-560 091.
... RESPONDENTS
(BY SRI.N. JAIPRAKASH RAO, ADVOCATE FOR
R-2 TO R-4;
R-2 TO R-8 ARE TREATED AS LR'S OF
DECEASED R-1;
NOTICE TO R-5 TO R-9 IS DISPENSED WITH
V/O DTD. 22.9.2015)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE ORDER DATED 09.10.2014 VIDE ANNEXURE-
E PASSED IN O.S.NO.364/2010 PENDING ON THE FILE OF
THE ADDL. CITY & CIVIL & SESSIONS JUDGE,
BANGALORE.
THIS PETITION COMING ON FOR ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard Sri Praveen RJS, learned Advocate appearing on behalf of Sri Papireddy for petitioner.
2. Order dated 09.10.2014 (Annexure-E) passed by XXXVIII Addl.City Civil Judge, Bengaluru in O.S.No.364/2010 is impugned in this writ petition whereunder Court below has answered issue No.2 in the 4 negative and directed the plaintiff to value the relief sought for in the suit for partition under Section 35(1) of the Karnataka Court Fees and Suits Valuation Act, 1958 and pay Court fee accordingly. To arrive at such a conclusion, trial Court has held that on account of plaintiff having stated that Release Deed dated 25.10.2006 executed by the plaintiff is the factor which would establish that plaintiff is not in possession of suit schedule property and therefore, Court fee ought to be paid under Section 35(1) of the Karnataka Court Fees and Suits Valuation Act, 1958.
3. Perusal of the plaint averments which is at Annexure-A would indicate that suit filed by the plaintiff is for relief of partition and separate allotment of 1/9th share in the suit schedule property by metes and bounds. In paragraph 3, plaintiff has stated to the following effect:
"3. That the said Venkata Muniyappa xxx 10-02-2005. Consequent upon his death, the plaintiff and the defendants-2 to 8 being the legal representatives have lawfully succeed to the schedule property and they have 5 continued to hold and possess the same as joint owners."
Averments made in the plaintiff is the guiding factor and not the plea raised in written statement. When plaintiff has specifically contended that suit property is a joint family property and defendants contended otherwise, it cannot be gain said by defendants that plaintiff ought to have valued the suit under Section 35(1) of the Karnataka Court Fees and Suits Valuation Act, 1958 and not under Section 35(2). When it is the specific case of the plaintiff that she continued to be in joint possession and enjoyment of suit schedule property, this Court is of the considered view that trial Court could not have jumped to the conclusion that plaintiff is not in possession of suit schedule property on the basis of entry in revenue records. As such, impugned order cannot be sustained.
Hence, I proceed to pass the following:
ORDER (1) Writ petition is hereby allowed. 6 (2) Order dated 09.10.2014 (Annexure-E) passed by XXXVIII Addl.City Civil Judge, Bengaluru in O.S.No.364/2010 is hereby set aside.
(3) Trial Court is directed to proceed with the suit on merits and in accordance with law.
Ordered accordingly.
SD/-
JUDGE *sp