Karnataka High Court
V.N. Manjunath vs K.N. Thimmegowda on 2 February, 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2nd DAY OF FEBRUARY 2022
BEFORE
THE HON'BLE MR.JUSTICE ASHOK S. KINAGI
WRIT PETITION NO.188 OF 2016 (GM-CPC)
BETWEEN:
V.N. MANJUNATH
S/O LATE NARAYANAPPA,
AGED ABOUT 39 YEARS
NO.140/5, 18TH MAIN ROAD,
J P NAGAR V PHASE,
BANGALORE-560 078
...PETITIONER
(BY SRI. MARASAKESHWAR RAO, ADVOCATE FOR
SRI. MUNIRAJU M, ADVOCATE)
AND:
1. K.N. THIMMEGOWDA
S/O HANUMAIAH,
AGED ABOUT 53 YEARS
NO.10 AND 1, 3RD CROSS, 8TH MAIN ROAD,
SRINIDHI LAYOUT, BANGALORE-560 062
2. SMT UDAMMA
W/O LATE CHILAPURIAPPA
AGED ABOUT 63 YEARS
R/O KOTHANUR VILLAGE,
UTTARAHALLI HOBLI,
2
BANGALORE SOUTH TALUK - 560 077.
AS PER THE COURT ORDER DATED 27.7.2021
RESPONDENT No.2 IS DELETED.
...RESPONDENTS
(BY SRI. CHANDRASHEKAR, ADVOCATE FOR R1)
R-2 IS DELETED VIDE ORDER DATED 27.7.2021)
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THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH ANNEX-H THE ORDER DATED 8.6.2015 IN
O.S.NO.3473/2012 WITH REFERENCE TO THE PAYMENT OF
COURT FEES AND CONSEQUENTLY DIRECT THE PLAINTIFF
TO PAY THE COURT FEE ON PLAINT TAKING INTO
CONSIDERATION THE SALE CONSIDERATION SHOWN IN
THE SALE DEED DATED 20.9.2010 ANNEX-G EXECUTED BY
1ST DEFENDANT/R-2 IN THE SUIT AND OTHERS IN
FAVOUR OF THE PETITIONER/2ND DEFENDANT.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 04.01.2022, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:
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ORDER
The petitioner being aggrieved by the order dated 8.6.2015 passed in O.S.No.3473/2012 by the XXIX Addl. City Civil Judge Bengaloru (CCH 30) has filed this writ petition.
2. Brief facts leading rise to filing of this petition are as under:
Respondent No.1 filed a suit for permanent injunction in respect of Site No.1 katha No.158, which is claimed to have been formed out of Sy.No.158 of Kothanur village, Uttarahalli Hobli Bengaluru South Taluk, presently in the 3rd cross, 8th main, Srinidhi Layout, now within the limits of BBMP.
The petitioner (defendant No.1) filed written statement and thereafter, respondent No.1 filed an application for amendment of plaint seeking for the 4 relief of declaration that the sale deed dated 20.9.2010 executed in his favour is not binding on him. The said application for amendment came to be allowed. Respondent No.1 had amended the plaint.
The office has taken note of the valuation filed by respondent No.1 and has noted that the value of the property is 15 lakh and respondent No.1 is liable to pay Court fee of Rs.48,275/-. Petitioner raised objection with reference to the valuation of the Court fee after amendment of the plaint. The Trial Court considered the objection raised by the petitioner and passed an order on 8.6.2015 holding that the property is still an agricultural land and there is no substance in the allegation of the petitioner and payment of Court fee of Rs.25/- paid by respondent No.1 is sufficient. The petitioner being aggrieved by the same has filed this writ petition.
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3. Heard learned counsel for petitioner and learned counsel for respondent No.1.
4. Learned counsel for the petitioner submits that the suit property is not an agricultural property and the said land comes within the BBMP limits. He further submits that respondent No.1 ought to have paid the Court fee on the market value of the suit property. He further submits that the office has taken a note of the valuation filed by respondent No.1 and noted that respondent No.1 is liable to pay Court fees of Rs.48,275/-. He further submits that respondent No.2 executed a registered sale deed in favour of the petitioner on 20.09.2010 for a consideration of Rs.82,69,000/-. He further submits that respondent No.1 is liable to pay Court fees on half of the market value. He further submits that the Trial Court has committed an error in passing the impugned order. Hence, he prays to allow the writ petition. 6
5. Per contra, learned counsel for the respondent No.1 submits that the suit is for declaration; that the impugned register sale deed is null and void. Respondent No.1 has properly valued the suit under Section 24 of the Karnataka Court Fees and Suits Valuation Act, 1958 (hereinafter referred to as ' KCF & SV Act') and has paid the proper Court fee as contemplated under Section 7 of the KCF & SV Act. He submits that the Trial Court was justified in passing the impugned order. Hence, on these grounds he prays to dismiss the writ petition.
6. Perused the records and considered the submissions made by the learned counsel for the parties.
7. Before considering the submission of learned counsel for the parties, it is necessary to consider 7 some of the provisions of KCF & SV Act. Sections 7, 24 and 38 of the KCF & SV Act are extracted below :
"7. Determination of market value.-
(1) Save as otherwise provided, where the fee payable under this Act depends on the market value of any property, such value shall be determined as on the date of presentation of the plaint.
(2) The market value of land in suits falling under Sections 24(a), 24(b), 26(a), 27, 28,29, 31, 35(1), 35(2), 35(3), 36, 38, 39 or 45 shall be deemed to be,--
(a) where the land forms an entire estate, or a definite share of an estate, paying annual revenue to Government, or forms part of such an estate and is recorded in the Deputy Commissioner's register as separately assessed with such revenue, and such revenue is permanently settled-- twenty-five times the revenue so payable:
(b) where the land forms an entire estate, or a definite share of an estate, 8 paying annual revenue to Government, or forms part of such estate and is recorded as aforesaid, and such revenue is settled, but not permanently-twelve and a half times the revenue so payable:
(c) where the land pays no such revenue, or has been partially exempted from such payment, or is charged with any fixed payment in lieu of such revenue-
fifteen times the net profits if any from the land during the year next before the date of presenting the plaint or thirty times the revenue payable on the same extent of similar land in the neighbourhood, whichever is lower;
(d) where the land forms part of an estate paying revenue to Government, but is not a definite share of such estate and is not separately assessed as above mentioned or the land is a garden or the land is a house site whether assessed to full revenue or not, or is land not falling within the foregoing description--the market value of the land.
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24. Suits for declaration.- In a suit for a declaratory decree or order, whether with or without consequential relief, not falling under section 25,-
(a) where the prayer is for a declaration and for possession of the
property to which the declaration relates, fee shall be computed on the market value of the property or on [rupees one thousand], whichever is higher;
(b) where the prayer is for a declaration and for consequential injunction and the relief sought is with reference to any immovable property, fee shall be computed on one-half of the market value of the property or on [rupees one thousand], whichever is higher;
[(c) x x x]
(d) in other cases, whether the
subject matter of the suit is capable of valuation or not, fee shall be computed on the amount at which the relief sought is 10 valued in the plaint or on [rupees one thousand] whichever is higher.
38. Suits for cancellation of decrees, etc.- (1) In a suit for cancellation of a decree for money or other property having a money value, or other document which purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest in money, movable or immovable property, fee shall be computed on the value of the subject-matter of the suit, and such value shall be deemed to be,--
if the whole decree or other document is sought to be cancelled, the amount or value of the property for which the decree was passed or other document was executed;
if a part of the decree or other document is sought to be cancelled, such part of the amount or value of the property.
(2) If the decree or other document is such that the liability under it cannot be 11 split up and the relief claimed relates only to a particular item of property belonging to the plaintiff or to the plaintiff's share in any such property, fee shall be computed on the value of such property or share or on the amount of the decree, whichever is less.
Section 7 deals with determination of market value for the purpose of Act. Section 24 deals with suits for declaration and Section 38 deals with suits for cancellation of decrees etc.
8. Respondent No.1 has sought for the following reliefs :
(1) restraining the defendants, their agents, servants, successors or any one claiming through or under them from interfering with the Plaintiff's peaceful possession and enjoyment of the suit schedule property in any manner.
(2) And the alleged sale deed dated 20.09.2010, registered as document No.643/12-13, 12 in the name of the defendant No.2, is not binding on the plaintiff.
And for any other relief or reliefs as this Hon'ble Court deems fit and proper including the cost of the suit, to meet the ends of the justice and equity.
According to the learned counsel for respondent No.1, the relief sought by respondent No.1 falls within Section 24 of the KCF & SV Act and court fee paid is sufficient.
9. Respondent No.1 has filed a suit for declaration that the registered sale deed executed in favour of the petitioner is null and void and has valued the suit property based on land revenue. In order to consider the expression 'the value of the subject matter of the suit' the Hon'ble Apex Court had an occasion to consider the said issue in Satheedevi v. Prasanna and Another reported in 2010 AIR SCW 3754 wherein it has held that the expression "value of 13 the subject matter of the suit" as found in the provisions of Section 40 of the Kerala Court Fees and Suit Valuation Act, 1959 (which is pari materia with Section 38 of the KCF & SV Act) should be understood as the 'value for which the document is executed'. As such, the expression 'market value' as found in Section 7(2) of the KCF & SV Act should also, wherever the provisions of Section 38 thereof apply, should be read as "value for which the document is executed" as interpreted by the Hon'ble Apex Court in the context of the Kerala CF & SV Act.
10. From the averments made in the plaint and the relief sought for by respondent No.1, it is clear that the petitioner has obtained registered sale deed for a consideration of Rs.89,69,000/-. It is that document which respondent No.1 is trying to get rid of through the suit in question.
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11. A relief of declaring a registered sale deed as null and void has to be construed as one for cancellation of the document. If the said declaration is construed as cancellation then, court fee shall be computed on the value of the subject matter of the suit.
12. In the instant case, the petitioner is challenging the impugned sale deed to be declared as null and void. Relief of declaration is to be construed as decree of cancellation. In as much as the result of granting such a relief is to cancel the Registered sale deed itself. Respondent No.1 has to value the suit under Section 38 of the KCF & SV Act. The said view is supported by the decision of this Court in M/s.Shivaram Bapuchand Shaha & Co. & others V. M/S Hirachand Sakharam Mehata & Co. & Others in CRP No.5459/1987 disposed of on 11.12.1987.
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13. Learned counsel for respondent No.1 submits that the suit property is an agricultural land.
14. Per contra, learned counsel for the petitioner submits that the suit property comes within the Corporation limit as respondent No.1 himself has filed an application seeking for amendment of the plaint and has produced the copy of the application vide Annexure-C.
15. From a perusal of Annexure-C, it is apparent that respondent No.1 has clearly admitted that the said land has lost its agricultural status long ago.
16. Insofar as the suit property is concerned, it falls within the BBMP limit. If the agricultural land falls within the BBMP limit, it is the market value which has to be taken into consideration even if the land continues to be shown as agricultural lands in the 16 revenue records and the land revenue instead of Corporation tax otherwise is payable thereof. The said view is being supported by the order passed by the Full Bench of this Court in W.P.No.40157/2014 on 10.12.2021 wherein it has been held that as to the valuation of land and payment of Court fee in a suit for declaration in respect of agricultural land which falls within the municipal limits or city corporation for the purpose of Court fee, it is the market value which has to be taken into consideration even if the land continues to be an 'agricultural land' in the revenue records.
17. Hence, in view of the above discussion and considering the law laid down by the Full Bench of this Court supra, the Trial Court has committed an error in passing the impugned order. The Court fee paid by respondent No.1 is insufficient and further the valuation made by respondent No.1 is incorrect. 17 Respondent No.1 has to value the suit under Section 38 of the Karnataka CF & SV Act.
18. Accordingly, the following order is passed :
ORDER
i) The writ petition is allowed;
ii) The impugned order dated 8.6.2015, passed by the XXIX City Civil Judge, Bengaluru, vide Annexure-H, is set aside.
iii) Respondent No.1 is directed to value the suit as per Section 38 of the KCF & SV Act and liable to pay the Court fee on the value of the subject matter of the suit.
SD/-
JUDGE rs