Karnataka High Court
Smt Gowramma vs Sri P Lakshminarayana on 13 October, 2015
Equivalent citations: AIR 2016 (NOC) 220 (KAR.), 2016 (1) AKR 87, (2016) 1 KCCR 773, (2016) 1 KANT LJ 256
Author: S.Sujatha
Bench: S.Sujatha
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF OCTOBER 2015
BEFORE
THE HON'BLE MRS. JUSTICE S.SUJATHA
WRIT PETITION No. 49427/2012(GM-CPC)
BETWEEN:
1. GOWRAMMA
W/O. LATE K. NANJUNDAPPA
AGED ABOUT 74 YEARS
2. SRI. N. SUNDARA RAJU
S/O. LATE K. NANJUNDAPPA,
AGED ABOUT 55 YEARS
3. SRI. N. THULASIRAJU
S/O. LATE K. NANJUNDAPPA,
AGED ABOUT 51 YEARS,
4. SRI. N. DHANANJAYA
S/O. LATE K. NANJUNDAPPA,
AGED ABOUT 44 YEARS
5. SRI. N. YOGISHA
S/O. LATE K. NANJUNDAPPA,
AGED ABOUT 42 YEARS
6. SRI. N.NARAYANASWAMY,
S/O. LATE K. NANJUNDAPPA,
AGED ABOUT 39 YEARS
PETITIONER NO.1 AND 3 TO 6 ARE
REPRESENTED BY THEIR GPA HOLDER
SRI N. SUNDARA RAJU
AGED ABOUT 55 YEARS
S/O LATE K. NANJUNDAPPA
ALL ARE RESIDING AT
NO.16, SANEGURUVANAHALLI,
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BASAVESHWARANAGAR,
BANGALORE - 560 079.
...PETITIONERS
(BY SRI. V.VISWANATH, ADV.)
AND :
SRI.P.LAKSHMINARAYANA
S/O M. PUTTARAJA,
MAJOR,
R/AT. VIJINAPURA,
BEHIND VIKAS HIGH SCHOOL,
DOORAVANINAGAR- POST,
BANGALORE - 560 016.
... RESPONDENT
(BY SRI. K. NARAYANA, ADV.)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
& 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DATED 9.11.12 PASSED BY THE
LEARNED XXVIII ADDL. CITY CIVIL JUDGE (CH NO.29) AT
BANGALORE IN OS 15799/2000 ON ISSUE NO.6 VIDE
ANNX-H BY ALLOWING THE ABOVE WP.
THIS W.P IS COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP THIS DAY, THE COURT DELIVERED THE
FOLLOWING: -
ORDER
This writ petition is directed against the order passed on Issue No.6 in OS No.15799/2000, on the file of learned XXVIII Addl. City Civil Judge, Bengaluru,
2. Heard the learned counsel for both the parties. -3-
3. The facts in brief are that one Chikkakariyappa and his sons said to have effected the panchayath palupatti in respect of the suit schedule property. In pursuance of the partition, katha was transferred in the name of K Nanjundappa. After the death of K. Nanjundappa, his wife Smt. Gowramma approached the Revenue Authorities to get transferred the revenue records in her favour. The petitioners have filed a suit in OS NO. 15207/2001 for declaration, mandatory injunction and permanent injunction. The late K Subramani, brother of the K Nanjundappa challenging the revenue entries made in the name of petitioners filed RA No.12/1992-93 before the Assistant Commissioner, Bengaluru Sub-Division, Bengaluru. After hearing the matter, the Assistant Commissioner was pleased to dismiss the appeal and the matter was compromised accordingly. The suit was decreed in favour of the petitioners herein. The Survey Authorities have got phoded their respective shares and they have conducted the survey of the land in question and prepared sketch and mahazar. It is contended that after conclusion of the survey, it has come to the notice of the petitioners that the respondent has illegally encroached upon -4- a portion of the suit properties and has put up illegal construction thereon. The petitioners filed the suit in OS NO.15799/2000 for relief of declaration and mandatory injunction against the respondent. The respondent contested the suit by filing written statement denying the averments made in the plaint.
It was contended by the defendant/respondent that on the date of filing of the suit, the suit schedule property was not an agricultural land, already the same was converted into non-agricultural land prior to 1988. Thereafter, 35 to 40 persons have purchased the sites in the suit properties who have constructed their residential buildings and residing in the same, therefore, the suit schedule properties lost its agricultural character, accordingly, valuation made by the plaintiffs is incorrect and improper. On the above pleadings, the trial Court framed in all 7 issues, out of which Issue No.6 was treated as preliminary issue, the same reads thus:
"Whether the suit is valued properly and court fee paid is sufficient?"
After considering the arguments advanced by both the parties, the trial Court answered the issue No.6 in the -5- negative and held that the valuation arrived at and court fee paid by the plaintiffs is incorrect and improper and directed the plaintiffs to submit a fresh valuation slip with necessary court fee under Section 24(a) of the Karnataka Court Fees and Suits valuation Act, 1957 ( here in after referred to as 'the Act' ) within one month failing which the suit is ordered to be dismissed as the court fee paid is insufficient.
4. Being aggrieved by the same, the petitioners/plaintiffs are before this Court by way of writ petition.
5. Learned counsel appearing for the petitioners vehemently contended that the suit schedule properties are agricultural lands and not been converted into non- agricultural lands, till date. The valuation made by the petitioners for payment of court fee under Section 24(a) is in accordance with law. The respondent has approached the Court and filed the written statement after lapse of 11 years and he has taken a false contention in the written statement alleging that the land bearing Sy.No.12 which is one of the suit schedule properties is a converted land and 35 to 40 -6- houses are constructed thereon, without any valid basis. Though the suit schedule properties are situated within city municipal limits of Vijinapura, from the year 2011, the same was agricultural land at the time of filing the suit and it was assessed to land revenue as per Karnataka Land Revenue Act, and as such it cannot be construed as non-agricultural land or the land falling within corporation limits to attract Court fee, as per market value under Section 24(a) of the Act. The petitioners have rightly valued the suit under Section 7(b) of the Act as agricultural properties and the same has not been properly appreciated by the trial Court. The trial Court negated the contentions of the petitioners and answered the issue No.6 which is contrary to the settled position of law.
6. Learned counsel for the petitioners placed reliance on the judgment of this Court in the case of M Narayanagowda Vs. Sri. Varghese, in WP No.41080/2012, dated 08.01.2015, in respect of his contentions that when the land is assessable to land revenue, the same continues to be the agricultural land and it is assessable under the Karnataka Land Revenue Act, 1964. -7-
7. On the contrary, learned counsel for the respondent supports the impugned order passed by the trial Court. It is contended that the suit was filed by the petitioners for declaration, mandatory injunction and permanent injunction. The properties were shown as agricultural lands as per valuation slip and same were valued under Section 7(b) of the Act. It is further contended that prior to 1988, the suit schedule properties already lost agricultural character, sites were formed and sold to various persons wherein the purchasers have constructed the buildings and residing in the same. The Court Commissioner, the Taluka Surveyor appointed by the Court for making local inspection has submitted his report along with the sketch which clearly discloses that already in Sy. No.12/1, 12/2 and 12/3 including Sy.No.13/3 and a portion of Sy. No.13/2 of Vijinapura, a layout was formed, pucca roads were laid and houses have been constructed wherein the suit schedule properties are situated. On perusal of the report of the Court Commissioner and also on the sale deeds produced along with the written statement of the defendant, the trial Court -8- has come to a conclusion that the suit schedule properties have lost its agricultural character and it cannot be valued under Section 7(b) of the Act as agricultural lands. Hence, he seeks for dismissal of the petition.
8. Learned counsel for the respondent files a memo to contend that the suit schedule properties comes within the Corporation limits of BBMP under ward No.51. Though it is admitted that the said notification is issued in the year 2011, it is contended that prior to which, these suit schedule properties were falling within limits of City Municipal areas and they have lost character of agriculture.
9. Having heard the learned counsel for both the parties and on perusal of the materials placed on record, it is noticed that the trial Court has framed 7 issues in OS No.15799/2000, wherein the suit was filed by the petitioners/plaintiffs for declaration of their ownership in respect of the suit schedule properties and for mandatory and temporary injunction and for delivery of possession. It is the case of the petitioners that they are the absolute owners of the suit schedule properties which was allotted to their father -9- Nanjundappa through palupatti, after his death the plaintiffs/petitioners jointly succeeded to the suit schedule properties; However, the uncle of the petitioners, K Subramani mismanaged the entire property ignoring the partition of the properties, the sites were formed and sold to various persons. The defendants having contested, raised several objections including the objections on court fee paid in short. The trial Court considered the said issue regarding the Court fee as preliminary issue and answered the same in negative and directed the petitioners to submit a fresh valuation slip with necessary court fee under Section 24(a) of the KCF and SV Act within one month failing which the suit is ordered to be dismissed as the court fee pad is insufficient.
10. It is significant to note that the trial Court on the insistence of the plaintiffs/petitioners appointed the Court Commissioner to make local inspection of the suit schedule properties. The Court Commissioner submitted a report stating that the suit schedule properties bearing Sy. No.12/1, 12/2 and 12/3 including Sy. No.13/3 is a private layout wherein pucca roads were laid and houses have constructed. The report of the Court Commissioner and also the sale deeds
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produced along with the written statement of the defendants makes it very clear that in the year 1988 itself a layout was formed, the suit schedule properties lost its agricultural character and as such, the suit valued under Section 7(b) of the Act is not sustainable.
11. The Division Bench of this Court in the case of J.M. Narayana and others Vs. Corporation of the City of Bangalore and Others reported in ILR 2005 KAR 60 wherein paras-5 and 6 has held as under:
5. "We have given our anxious consideration to the submissions made at the Bar. It is not disputed that the suit property stands included within the Corporation limits in terms of a notification issued much earlier to the filing of the suit. As a result of such inclusion, the taxes applicable within the Corporation limits would by operation of law and in particular Section 4 Sub-Section 4 of the Municipal Corporation Act become applicable to the extended area also. Even assuming that the land in question was agricultural land before its inclusion in the Corporation limits, the same would not necessarily mean that it either continued to pay land revenue nor would such land be exempted from payment of property tax under the said Act. As rightly pointed
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out by Mrs. Patil, Section 110 of the Karnataka Municipal Corporation Act, 1976, exempts the payment of property tax qua only such lands as are registered to be agricultural lands in revenue records of Government and as are actually used for cultivation of crops. Stated conversely just because certain land included in the Corporation limits is registered or used for cultivation purposes would not imply that the said land continues to pay land revenue under the Land Revenue Act. On the contrary, Land Revenue Act would cease to be applicable no sooner the land is brought within the Corporation limits.
6. There is another angle from which the issue can be viewed. Section 7 of the Karnataka Court Fees and Suit Valuation Act, 1958 creates a legal fiction regarding the market value of lands that form an entire estate or a definite share of an estate are concerned. A closer reading of Section 7(2) (b) would show that not only should the land be an entire estate or a definite share of an estate, but it must be paying annual revenue to the Government. The expression "paying annual revenue to the Government" in Section 7(2) (b) is significant and in our opinion implies that the liability to pay land revenue must be clear and subsisting one. In cases were such liability ceases to exist on account of
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incorporation of the area within the limits of a Municipal Corporation, the land cannot be said to be paying annual revenue to the Government. That is because the liability to pay any such revenue must be deemed to have ceased from the moment the land is included in the extended Corporation limits. The Division Bench of this Court has opined, the liability to pay land revenue ceases to exist on account of incorporation of the area within the limits of a Municipal Corporation, the land cannot be said to be paying annual revenue to the Government. That is because the liability to pay any such revenue must be deemed to have ceased from the moment the land is included in the extended corporation limits. However, in the present case, as per Notification No.HUD 701 MLR 95, dated: 22.01.1996, Vijinapura falls within area of City Municipal Council, Krishnarajapuram. Further, it is notified that the suit schedule properties comes within the corporation limits of BBMP under ward No.51. Earlier Notification which reveals that Vijinapura falls within City Municipal area of Krishnarajapuram, makes it clear that the land in question have lost agricultural character as per the Division Bench of this Court in J.M. Narayana and
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others' case as stated supra. Once these lands are incorporated in the City Municipal limits, it loses its agricultural character and the land cannot be said to be paying annual revenue to the Government. Moreover, in this case very same survey number wherein the suit schedule properties situated is locally inspected by the Court Commissioner and the report submitted by the Court Commissioner clearly establishes that these suit schedule properties are being residential layout and the same having lost agricultural character cannot be construed as agricultural lands.
12. The judgment of this Court in the case of M Narayanagowda relied on by the learned counsel for the petitioners was a case wherein the trial Court though meandered, observing that the suit schedule properties though agricultural lands but the lands surrounding have been put to use for non-agricultural purposes as a layout of residential sites over which buildings are erected and therefore the suit schedule properties are deemed to be part of the layout in such circumstances, it is held that
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presumption is not only erroneous but absurd. But in the present case, the layout in which the suit schedule properties situated is established to be residential layout. No presumptions or assumptions are made by the trial court. The judgment relied on by the learned counsel for the petitioners is not applicable to the present case.
13. In view of the foregoing reasons, the order passed by the trial Court on issue No.6 is well considered order. Hence, no exception can be made with the order passed by the trial Court which is in accordance with the law laid down by the Division Bench of this Court in the case of J.M. Narayana & Others (supra). Accordingly, the writ petition stands dismissed being devoid of merits. The petitioners are directed to submit fresh valuation slip with necessary Court fee under Section 24(a) of the Act as directed by the trial court within two months from the date of receipt of the certified copy of this order.
Sd/-
JUDGE JTR