Smt Devarathna vs Smt K P Nagaveni
2022 Latest Caselaw 8841 Kant

                         1


  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 15TH DAY OF JUNE, 2022

                       BEFORE

THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

   WRIT PETITION NO. 30805 OF 2015(GM-CPC)

BETWEEN:

SMT DEVARATHNA
W/O R.SHANTHAKUMAR,
D/O LATE PILLAPAIAH,
AGED ABOUT 24 YEARS,
YANAGAR, JANGAMAKOTE HOBLI,
CHIKKABALLAPUR DISTRICT-562105

                                      ...PETITIONER

(BY SRI.SHIVASHANKAR K, ADVOCATE)

AND:

1. SMT K P NAGAVENI
W/O ANJANAPPA,
D/O LATE PILLAPAIAH,
AGED ABOUT 30 YEARS

2. SMT. PARVATHAMMA
W/O LATE PILLAPAIAH,
AGED ABOUT 46 YEARS,

BOTH R/AT KALKERE VILLAGE,
KRISHNARAGAPURAM HOBLI, VARAMAVU POST,
BANGALORE EAST TALUK-560043
                           2


3. MR. PRASANNA KUMAR P
S/O P. RAGHAVAN NAIR,
AGED ABOUT 45 YEARS,
NO.65, NEAR GANESH TEMPLE,
NEW BYAPPANAHALLI EXTENSION,
INDIRANAGAR, BANGALORE 38

4. SRI. P. NAGARAJ
S/O PAPANNA,
AGED ABOUT 40 YEARS,
R/AT KALKERE VILLAGE, HORAMAVU POST,
BANGALORE-43

5. SRI. AMIYA KUMAR POTHAL
S/O ARJUN CHANDRA POTHAL,
AGED ABOUT 38 YEARS

6. SMT. VIMALA POTHAL
D/O AMIYA KUMAR POTHAL,
AGED ABOUT 33 YEARS,

BOTH R/AT NO.23, KRISHNA REDDY LAYOUT,
II MAIN, III CROSS,
HORAMAVU MAIN ROAD,
DODDABANASAVADI, BANGALORE 43

7. SMT SUDHA
W/O H. RAMESH,
AGED ABOUT 42 YEARS,
NO.350, BYRAPPA LANE,
DEVARAJEEVANAHALLI,
BANGALORE NORTH TALUK-560037

8. SMT. HARRIET SHOWBHAGYAVATHI
D/O PRASADA RAO.K,
AGED ABOUT 50 YEARS,
NO.60/2, VENKATESHWARA NILAYA,
1ST CROSS, NEAR SHOBA STORES-560093.
                         3


9. SMT.M. PADMA
D/O CHIKKA MUNISWAMAPPA,
AGED ABOUT 29 YEARS,
NO.37, SUDDAGUNTE PALYA,
C.V.RAMAN NAGAR POST,
BANGALORE-93

10. MR. G.SUNIL KUMAR
S/O P. GUNASHEKAR,
AGED ABOUT 29 YEARS,
R/AT SKANDA NILAYA,
NO.55, 2ND CROSS, 20TH MAIN,
BTM II STAGE, BANGALORE 76

11. SMT. EILEN PADMARAJ
AGED ABOUT 59 YEARS,
S/O D.PADMARAJ,
R/AT OLD NO.32/7, NEW NO.28
SPENCER ROAD, FRAZER TOWN
BANGALORE 05

12. SRI SUREN ANAND R
AGED ABOUT 39 YEARS,
S/O ANAND MOSES R,
OVERSEAS CITIZEN OF INDIA NO.A288598
HAVING INDIA PASSPORT NO.J1146965
VALID UPTO 13TH AUGUST 2020,
R/AT NO.56/3-315, KALLIKERE VILLAGE,
KRISHNARAJAPURAM HOBLI,
BANGALORE EAST TALUK-560043
NOW R/AT.NO.31, SOUTH GROVE MANCHESTER,
M13 OAU,UNITED KINGDOM

AND IS BEING REPRESENTED BY HIS SPA HOLDER,
SRI. DANIEL PADMARAJ,
AGED ABOUT 65 YEARS,
R/AT. OLD NO.32/7-NEW NO.28, SPENCER ROAD,
                             4


FRAZER TOWN, BANGALORE 5
VIDE SPA DATED 05.10.2011 EXECUTED BEFOR NOTARY
PUBLIC, MANCHESTER, M2, 4PD
UNITED KINGDOM

                                           ...RESPONDENTS

(BY SRI.C S HASHIN SAEED & SRI.H.S.NAVEED ALAM,
ADVOCATES FOR R3, 5, 6, 11 & 12;
V/O DTD: 13.08.2021 NOTICE TO R2, 4, 7 & 8 SERVED
THROUGH PAPER PUBLICATION;
R9 & 10 ARE SERVED & UNREPRESENTED)

     THIS PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER PASSED BY THE XXXVIII ADDITIONAL CITY CIVIL
JUDGE    AT   BANGALORE     ON    ISSUE   NO.3  IN
O.S.NO.6418/2008 DTD.28.3.2015 VIDE AT ANNEX-C.

    THIS PETITION COMING ON FOR DICTATING
ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:

                        ORDER

The captioned writ petition is filed by the plaintiff

feeling aggrieved by the order of the learned Judge

answering Issue No.3 in the negative and

consequently, calling upon the plaintiff to value the

relief of partition under Section 35(1) of the Karnataka

Court Fees and Suit Valuation Act, 1958 (for short

"the Act") and not under Section 35(2) of the Act.

2. The petitioner-plaintiff has instituted a suit

seeking relief of partition and separate possession in

O.S.No.6418/2008. The present petitioner has

specifically claimed that the suit schedule property

was allotted to the share of her father in terms of the

compromise recorded in O.S.No.1978/1989. It is

specifically pleaded that at the time of her father's

death she was a minor. The defendants have

maintained a hostile attitude towards the plaintiff and

they have not taken care of her prior to marriage and

also post marriage. At para (6) of the plaint, the

petitioner claims that she has made repeated

demands to defendants 1 and 2 to divide the suit

schedule property by metes and bounds and allot her

1/2 share in the suit schedule property. At para (7) of

the plaint, the petitioner has specifically pleaded that

she came to know that recently defendants 1 and 2

have sold major portion of the suit schedule property

to defendants 3 to 10 and has also furnished the

details of the alienations by defendants 1 and 2.

3. The plaintiff on these set of pleadings

claimed that she is a co-parcener and she constitute a

joint Hindu undivided family along with defendants 1

and 2 and she is entitled to half share in the suit

schedule property. Therefore, has prayed to pass

decree allotting half share in the suit schedule

property.

4. The defendants 1 and 2 on receipt of

summons contested the suit and have specifically

contended that the plaintiff is not at all in joint

possession as alleged in the plaint. Further, they have

admitted at Para 5 of the written statement that they

have already sold the suit schedule properties to

defendants 3 to 9 and therefore, have prayed for

dismissal of the suit.

5. One of the purchasers, who is arrayed as

defendant No.8 has filed written statement and has

stoutly denied the entire averments made in the

plaint.

6. Based on the defence set up by the

defendants, the trial Court has formulated issues and

issue No.3 was treated as a preliminary issue. The

learned Judge having heard the rival parties has

answered issue No.3 in the negative and thereby has

recorded a finding that plaintiff is not at all in joint

possession and therefore, was required to value the

suit schedule property in terms of Section 35(1) of the

Act and not under Section 35(2). It is this order,

which is under challenge.

7. The learned counsel reiterating the grounds

urged in the writ petition would vehemently argue and

contend that the order of the learned Judge calling

upon the plaintiff to value the suit schedule property

under Section 35(1) of the Act is erroneous. He would

contend that the suit schedule property is an ancestral

property and therefore, presumption is that the

petitioner being a daughter is deemed to be in joint

possession along with defendants 1 and 2 and

therefore, the order under challenge suffers from

infirmities and would warrant interference at the

hands of this Court.

8. To buttress his arguments, he has placed

reliance on the following judgments:

1.Suhrid Singh @ Sardool Singh .vs. Randhir Singh

and others [AIR 2010 SC 2807]

2.Reliance Prolific Traders Pvt. Ltd. Gujarat and

another .vs. Purandara Shetty and others [AIR 2018

KAR 172]

3.Nanjamma .vs. Ashwathamma [LAWS(KAR)-2014-4-

202]

4.K.L. Venugopal and another .vs. Smt. Vimala K.

Venugopal and others [W.P.No.16065/2014 date of

disposal 23.2.2018]

Referring to the aforesaid judgments, the learned

counsel would contend that if the suit schedule

property is prima facie found to be the joint family

ancestral property then, plaintiff cannot be called

upon to pay Court fee under Section 35(1) of the Act.

If the other owners were to casually deny the

averments made in the plaint, that in itself, would not

amount to ouster. Therefore, in the present facts and

circumstances of the case, fixed fee as contemplated

under Section 35(2) of the Act was in accordance with

law and therefore, issue No.3 ought to have been

answered in the affirmative.

9. Referring to the above said judgments, he

would further contend that plaintiff specifically claims

to be in joint possession and has filed the present suit

for partition and separate possession. Therefore, the

learned Judge erred in calling upon the plaintiff to pay

Court fee under Section 35(1) of the Act. He would

further point out that there are absolutely no material

indicating that plaintiff is either excluded from joint

possession or ousted from joint possession.

Therefore, the valuation done by the plaintiff and

Court fee paid under Section 35(2) of the Act is in

accordance with law and therefore, issue No.3 ought

to have been answered in the affirmative. He would

further contend that the Court cannot either at the

instance of the defendants or suo motu convert the

suit as one under Section 35(1) of the Act. In this

background, he would submit that the order under

challenge is not at all sustainable and same is liable to

be set aside.

     10.      Heard   the   learned    counsel   for   the

petitioner.    Perused the grounds urged in the writ

petition. I have also given my anxious consideration

to the order under challenge. This Court has also

gone through the judgments cited by the learned

counsel for the petitioner.

11. In the present case on hand, the subject

matter of the suit is an agricultural land bearing

Survey No.506 measuring 20 guntas. This is the only

property held by the family of the plaintiff and

defendants 1 and 2. On a plain reading of para(7) of

the plaint, this Court would find that defendants 1 and

2 have alienated the entire extent. On a bare perusal

of para (8), this Court would also find that defendant

No.9, who is the first purchaser, in turn, has sold the

portion purchased by her in favour of defendant

No.10. Therefore, what could be gathered from the

averments made in the plaint is that even defendants

1 and 2 are not at all in possession. Having sold the

entire extent, defendants 1 and 2 have delivered

possession to the transferees pursuant to the

execution of registered sale deeds. The first sale deed

is of the year 1999. The present suit is filed in the

year 2008. If the family of the plaintiff has already

lost possession and if the purchasers are in exclusive

possession pursuant to alienation, the general rule

that possession of one co-owner is possession of all

co-owners and therefore, plaintiff must be deemed to

be in joint possession even if she was not in actual

joint possession cannot be extended to the present

case on hand. It is not a mere exclusion. But, in the

present case on hand, it is the transferees who are in

exclusive possession of the suit schedule properties

since 1999. The rule as to constructive possession

also has no application to the present case on hand.

The solitary property which was owned by the family

of plaintiff and defendants 1 and 2 is already dealt

with and meddled with by defendants 1 and 2. After

lapse of nine years, the plaintiff has come up with the

present suit. Therefore, the present set of facts,

which can be gathered from the plaint clearly indicates

that it is the purchasers who are in exclusive

possession. If defendants 1 and 2 are not at all in

possession of the suit schedule properties then the

general rule that the plaintiff is deemed to be in

possession along with the family members has no

application to the present case on hand. It is also a

trite law that mere averments that plaintiff and

defendants 1 and 2 are in joint possession would

suffice. This is not a case where the co-owner who is

in actual possession is alleging the plea of ouster.

From the very plain reading of the averments made in

the plaint, this is a clear case of absolute exclusion

from possession of the suit schedule property.

Therefore, the plaintiff is bound to pay Court fee in

terms of Section 35(1) of the Act.

12. The judgment of the Apex Court in the case

of Suhrid Singh @ Sardool Singh .vs. Randhir

Singh and others1 has no application to the present

case on hand. That was a case where the plaintiff had

instituted a suit for declaration questioning the sale

deeds as null and void. The Apex Court in the

judgment cited supra was of the view that in a suit for

cancellation of sale deed, Court fee need not be paid

on the sale consideration shown in the sale deed and

was of the view that the Court fee is computable

under Section 7(iv)(c) of Act. Therefore, the

principles laid down by the Apex Court has no

application to the present case on hand.

13. Similarly, the judgment cited in the case of

Reliance Prolific Traders Pvt. Ltd. Gujarat and

AIR 2010 SC 2807

another .vs. Purandara Shetty and others2

rendered by a Co-Ordinate Bench of this Court also

has no application to the present case on hand. That

was a case where a relief of declaration in a partition

suit was held to be not amounting to cancellation of

sale deed and therefore, this Court was of the view

that proper Court fee payable is as per Section 35(2)

of the Act and not under Section 35(1) of the Act.

14. The judgment rendered by a Co-Ordinate

Bench of this Court in Nanjamma .vs.

Ashwathamma3 was in regard to rejection of plaint

under the provisions of Order VII Rule 11(a) and (d).

While tendering an application under Order VII Rule

11(a) and (d) of CPC, the defendants in the said

judgment contended that the plaintiffs have not

properly valued the suit. It was contended that suit

AIR 2018 KAR 172

Laws(Kar)-2014-4-202= KCCR-2014-4-3445

ought to have been valued under Section 35(1) of the

Act. While examining the lis in the above said

judgment, the Co-Ordinate Bench was of the view that

in order to find out whether the plaint is properly

valued or not, the Court has to examine the

averments made in the plaint and cannot venture into

examining the averments made in the written

statement. The principles laid down in the said

judgment also has no application to the present case

on hand.

15. I have also given by anxious consideration

to the principles laid down by the Court in

W.P.No.16065/2014. In all the judgments cited by

the learned counsel for the petitioner, the facts are

different. The principles laid down by this Court and

the Apex Court in the above cited judgments have no

application to the present case on hand.

16. In the case of Reliance Prolific Traders

Pvt. Ltd. Gujarat and another .vs. Purandara

Shetty and others, the Co-ordinate Bench was of the

view that in the absence of any material to prove that

plaintiffs have been excluded from the joint family and

in the absence of any document to prove that they

were signatories to the sale deed, the Court was of

the view that the Court fee has to be paid under

Section 35(2) and not under Section 35(1) of the Act.

The facts and circumstances in the present case on

hand are slightly different and distinct. In the present

case on hand, the defendants 1 and 2 who are sisters

of the plaintiff herein have dealt with the property and

have sold the suit schedule properties way back in

1999. A small portion of the property was sold in

1999 and thereafter there are series of alienations and

the entire extent is sold and possession is delivered to

the purchasers pursuant to the execution of registered

sale deeds. It is in this background, this Court would

concur with the conclusions recorded by the trial Court

relating to the factum of possession.

17. Having regard to the facts and

circumstances, this Court is of the view that the

learned Judge was perfectly right in arriving at a

conclusion that the plaintiff is not at all in joint

possession. If defendants 1 and 2 are in possession,

the presumption that plaintiff would continue to be in

joint possession along with other members has no

application to the present case on hand. This Court

also has to take note of the fact that the rights of the

purchasers are crystalized by passage of time.

Therefore, the plaintiff is bound to pay the Court fee

under Section 35(1) of the Act and not under Section

35(2). Therefore, the grounds urged in the writ

petition would not displace the conclusion and reasons

assigned by the learned Judge while answering issue

No.3 in the negative. I do not find any error

committed by the learned Judge.

18. For the foregoing reasons, I pass the

following:

ORDER

The writ petition is dismissed.

Sd/-

JUDGE

*alb/-