Harish Appaiah vs Rukmini

B.V. Nagarathna, J.—Petitioner has assailed order dated 16.6.2014 passed in O.S. No. 66/2007. That suit has been filed by respondent No. 1 herein, before the Senior Civil Judge at Virajpet, seeking following reliefs:--

"Under these circumstances it is humbly prayed that this Hon''ble Court may be pleased to pass Judgment and Preliminary Decree as well as Final Decree as follows:--

a) For direction of the plaint schedule properties into partition as two equal share of plaint ''A''" & "C" schedule property by metes and bounds and allotment of one share to the plaintiff.

b) Restraining the defendants 1 to 4, their men, agents, power of attorney holders or any other persons claiming through or under them and from selling or alienating the plaint schedule properties to any other persons ignoring the legal and legitimate right to plaintiff over it by means of permanent perpetual prohibitory injunction.

c) After passing of preliminary decree the same may be referred to the concerned surveyor attached to Taluk Office at Madikeri for affecting the partition under Section 54 of CPC 1908.

d) For a direction of enquiry under Order 20 Rule 18 of CPC.

e) Award cost of the suit.

f) Grant such other and further suitable reliefs be granted in favour of the plaintiff under the circumstances of the case."

On the basis of the pleadings, the Trial Court framed the following issues on 26.6.2008

"1)Whether the plaintiff proves that the suit schedule properties are the joint family properties consisting of herself, defendants 1 and 2?

2)Whether the plaintiff proves that K.M. Dinesh, Sumithra, Susheela have no claim over the schedule properties as alleged in para -7 of the Plant?

3)Whether the plaintiff is entitled for partition?

4) Whether the defendant No. 2 proves that the suit schedule properties are the self acquired properties and in exclusive possession and enjoyment of the same on the date of the suit?

5) To what Order or Decree?"

Subsequently, additional issues were framed on 13.7.2009 which areas under:--

"1) Whether the plaintiff proves that she has title to the suit properties in the plaint?

2) Whether the suit is valued correctly for relief of injunction and for payment of court fee?"

The impugned order concerns additional issue No. 2, which reads as to whether the suit is valued correctly for the relief of injunction and for payment of court fees.

Learned counsel for petitioner states that the said issue was answered by the impugned order after holding an enquiry. He states that the Trial Court was not right in holding that Court fee paid under Section 35(2) of the Karnataka Court Fees and Suits Valuation Act (''Act'' for short), 1958 was correct and proper. He further states that Court fee paid under Section 26(c) with regard to relief of injunction is just and correct. While elaborating his submission, petitioner''s counsel would state that petitioner had objected to payment of court fee of Rs. 200/- under sub-section (2) of Section 35 of the Act, whereas the court fee had to be paid under sub-section (1) of Section 35 of the Act. According to learned counsel, respondent No. 1, who is the plaintiff herein was excluded from possession of the property and therefore court fee had to be paid on the market value of the plaintiff''s share. At the same time, petitioner''s counsel also stated that petitioner has averred that all items of the plaint schedule properties are self acquired property of the petitioner and that respondent No. 1 has been excluded from that property and therefore, court fee had to be paid under Sub-section (1) of Section 35 of the Act.

The trial Court while answering additional issue No. 2 held that court fee paid under Sub-section (2) of Section 35 of the Act is correct. Being aggrieved by this finding, petitioner has preferred this writ petition.

Per contra, learned counsel for respondent No. 1 supported the impugned order and stated that court fee has been paid on the premise that the suit schedule properties are joint family properties and that they are held jointly by plaintiff as well as defendants. It is the case of respondent No. 1/plaintiff that the plaintiff is in joint possession of the schedule property which according to plaintiff are joint family property and therefore the impugned order would not call for any interference. He also contended that the relief of injunction has been valued at Rs. 1,000/- and a sum of Rs. 25/- has been paid under Section 25(c) of the Act.

Having heard learned counsel for the parties and on perusal of the material on record, it is noted that the contention of the petitioner, who is defendant No. 2 in the suit is to the effect that the suit schedule items are separate properties and not joint family properties of the parties. The rival contention of the plaintiff is that suit schedule properties are joint family properties and that plaintiff is in joint possession. In fact, the Trial Court has raised issue No. 1 as well as issue No. 4 to that effect and the burden of proving issue No. 1 is on the plaintiff and the burden of proving issue No. 4 is on the defendant No. 2. The additional issue is relatable to the valuation for the purpose of relief of injunction and for payment of Court Fee. While answering that issue, the Trial Court has held that court fee paid is sufficient both under sub-section(2) of Section 35 as well Section 26(c) of the Act. The impugned order would not call for any interference.

The question as to whether the suit schedule properties are self acquired properties of defendant No. 2 and whether defendant No. 2 is in exclusive possession and enjoyment of the same is a matter that has to be gone in to in the main suit, as issue No. 4 relates to that point. The burden of proving that issue is on defendant No. 2, who is now stated to have been succeeded by her legal representatives.

In that view of the matter, the Trial Court on a reading of the plaint has proceeded to give a prima facie opinion that suit schedule properties are joint family properties and that plaintiff is in joint possession of the suit properties along with defendants and therefore, the court fee paid under sub-section (2) of Section 35 of the Act is just and proper. That order would not call for any interference in the writ petition. The writ petition is hence dismissed. Despite the order passed by the trial Court as well in this writ petition, the consideration of issue Nos. 1 and 4 has to be made on its own merit and without reference to the order passed on additional issue No. 2.

Learned counsel for respondent No. 1/plaintiff states that the suit is of the year 2007 and recording of evidence is yet to commence.

In the circumstances, parties in the suit are directed to co-operate for a speedy disposal of the suit.