Madan Dattaram Deshpande vs Saroja and Others

K.N. Phaneendra, J.—Heard learned counsel for the petitioner and perused the records. Contesting respondent No. 1 and his and counsel remained absent.

The defendant in O.S. No. 294/2006 has taken up the contention before the trial Court that the suit is not properly valued along with other grievances. The plaintiff has filed the suit for the following reliefs.

a) It be declared that, the sale deed executed by defendants 2 and 3 in favour of deft. No. 1 dated 05.12.2005 as null and void during the pendency of the partition suit and subsequent proceedings which will arise in the case.

b) Consequential relief of perpetual injunction be issued restraining the deft. No. 1, his agents, servants or anybody acting on his behalf from making further construction over the suit property.

c) Costs of the suit be awarded.

d) Permission to amend the plaint, as and when found necessary, be granted and;

e) Any other relief/s this Hon''ble Court deems fit and proper, be granted to the plaintiff.

It is stated in the plaint that the cause of action for the suit arose for the first time when the plaintiff learnt about the alienation dated 05.12.2005 made by the defendant Nos. 2 and 3. Thereafter it arose from time to time and continued thereafter and as against defendant No. 1 when he got knowledge of the order of the Court in 2004 itself as he is married to the daughter of the plaintiff''s sister.

It is the case of the plaintiff that there is a partition suit pending between the parties and during the pendency of the suit the said alienation has been made. Therefore, the plaintiff has sought for declaration to declare the said sale deeds as null and void. The defendant has taken up the contention that the said suit property was purchased by the defendant Nos. 1 from defendant Nos. 2 and 3 for a sum of Rs. 20.00 lakhs under registered sale deed dated 05.12.2005. When the plaintiff has claimed declaratory nature of suit seeking particularly to declare the said sale deed as null and void, the suit ought to have been valued under Section 24(b) of the Karnataka Court Fees & Suits Valuation Act (hereinafter referred to as ''Act'' for short) for the purpose of reckoning the Court fee. Inspite of that, the suit was valued under Section 24(d) of the Act. The Court has not considered this particular aspect though it has framed issue with regard to the Court fee and jurisdiction. The trial Court has framed several issues amongst those issues three issues have been treated as preliminary issues, which are as under:

1) Whether the suit of the plaintiff in the present form is maintainable?

4) Whether this Court has got pecuniary jurisdiction to try the suit?

5) Whether the plaintiff proves cause of action to the suit?

The trial Court without recording the evidence has come to the conclusion that the preliminary issues have been answered in the affirmative and dismissed request of defendant No. 2 and posted the case for evidence before the Court. With regard to the pecuniary jurisdiction of the Court the issue has been framed rightly, the Court has framed it as preliminary issue and the court has to pass orders on the said issues. Now the question arises whether the suit ought to have been valued u/S. 24(d) of the Act or 24(b) of the Act. It is for that purpose the said provision is extracted below:

Suits for declaration: In a suit for 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 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 valued in the plaint or on (rupees one thousand) whichever is higher.

The provision u/S. 24(a) refers to where a declaration is sought along with possession. That is not the case of the plaintiff but the plaintiff has specifically sought for declaration to declare the sale deed as null and void. It is not the plaintiff''s case that the said sale deeds are not binding upon them. It is the specific case for declaration for setting aside the sale deeds as null and void. By virtue of the sale deed, according to the defendant that vested right, title and interest in favour of the defendant Nos. 2 and 3 will be divested in favour of the original owner. Therefore, when the vested rights are sought to be divested it should be treated as nature of declaratory suit. Therefore, Sec. 24(b) clearly declare that the Court is only look into the prayer sought for what nature of declaration that has been sought to declare is to the effect for the setting aside sale deed then the valuation has to be made u/S. 24(b) of the Act.

Sec. 24(d) of the Act concentrates with regard to whether the suit is capable of valuation or not, fee shall be computed on the ground which the relief sought for in the value. Therefore, where the subject matter of the suit does not fall u/S. 24(a) or (b) such suits and the suits, which are incapable of valuation, can only be valued u/S. 24(d) of the Act. Therefore, the trial Court has not bestowed its attention properly so far as these provisions of law are concerned. It has simply stated, because the plaintiff is not a party to the sale deed she need not pay the Court fee to that effect. Whether the plaintiff is a party to the sale deed or not, is not a question, what is the relief sought for is the question to be decided by the Court.

It is worth to note here a decision of this Court reported in The Karnataka Housing Board, Bangalore Vs. Yamanur Sab and Others, . The Court has observed that the suit is filed for setting aside the sale deed when admittedly the prayer in the suit is one for setting aside the sale deed it is to be valued at least at the value given in the sale deed.

The trial Court records disclose that the sale deed has been produced before the Court which is at page No. 201 which shows that the sale deed was executed by one Prabhakar Atmaram Prabhu-defendant No. 3 in favour of Madan Dattaram Deshpande-defendant No. 1 for a sum of Rs. 20 lakhs. The properties mentioned therein and was shown as property bearing CTS No. 456/A Vaccine Depot road, Hindu Nagar, Tilakwadi, Belgaum with an area of (1032 sq.yards) measuring 863.19 sq.mtrs. having the following boundaries.

The description made in the suit property is also the same property sold under the sale deed dated 05.12.2005. Therefore, it is crystal clear from the pleadings and also prayer that the plaintiff want this particular sale deed to be set aside or declaration as null and void. If it is taken as null and void or the sale deed is set aside consequence also should be looked into by the Court.

As I have already held that it divest the vested rights in favour of the original owner. Therefore, in view of the above ruling and also the pleading the plaintiff ought to have valued the suit u/S. 24(b) of the Act.

In view of the above said facts and circumstances as the subject matter of the suit is to be valued in respect of the suit property to the extent of Rs. 20 lakhs as per the consideration amount under the sale deed. Therefore, the trial Court has absolutely no pecuniary jurisdiction to try the suit. Hence, the trial Court is directed hereby to return the plaint to the plaintiff for proper presentation before the competent Court.

Accordingly, the petition is allowed. Order passed by the trial Court impugned in this petition is hereby set aside.

Office to send the records of the trial Court forthwith for compliance.