Manipal Academy of Higher Education vs K. Jayavantha Bhakta

B. Manohar, J.—The petitioner is the 7th defendant in O.S. No. 143/1996 on the file of the Principal Civil Judge (Sr.Dn.), Udupi, being aggrieved by the order dated 21.05.2012 made on the preliminary issue No. 5 filed this writ petition.

The respondents 1 to 3 herein filed O.S. No. 143/196 seeking for partition and separate possession of 3/8th share in plaint ''A schedule property and also for other reliefs. In the plaint it was contended that the suit schedule property is the ancestral property of Kalasanka Manjunath Bhakta. Plaintiffs and defendants 1 to 5 are the children of the said Kalasanka Manjunath Bhakta. They are entitled for their share in the joint family properties. The plaintiffs had paid the court fees under Section 35(2) read with Section 21 of the Karnataka Court fees and Suit Valuation Act, 1958 (for short herein after referred to as "Act"). The 7th defendant/respondent raised an objection regarding payment of the court fees contending that the 7th respondent is in possession of the property. The plaintiffs are not in possession and hence the court fees has to be paid under Section 35(1) of the Act and the court fees as paid by the plaintiffs is not in accordance with law. In view of the said contention, the trial court raised the issue No. 5 i.e., with regard to the court fees as a preliminary issue. After considering the arguments of the parties, the trial court found that the court fees paid on the plaint is in accordance with law and held that in a suit for partition, both the plaintiffs and defendants are in possession of the property and are in joint possession of the property, the court fees has to be paid under Section 35(2) and answered the preliminary issue in favour of the plaintiffs. Being aggrieved by the order made on preliminary issue No. 5, the 7th defendant has preferred this writ petition.

Sri. P.N. Manmohan, learned counsel appearing for the petitioner contends that the order passed by the trial court on the preliminary issue is contrary to law. The first defendant in the suit alienated the property in favour of the sixth defendant. The sixth defendant in turn sold the property to the seventh defendant and seventh defendant is in possession of the property, since the plaintiffs are not in possession they have to pay the court fees under Section 35(1) of the Act. The trial court committed an error coming to the conclusion that court fees paid under Section 35(2) of the Act is in accordance with law and sought for setting aside the said order by allowing the writ petition.

On the other hand, the learned advocate, Sri. B.V. Krisha, appearing for the respondents argued in support of the order of the trial court and contended that the suit filed by the plaintiffs seeking for partition and separate possession is in respect of ancestral property of the joint family and family members are in joint possession of the properties. The court fees has been paid under Section 35(2) of the Act it is in accordance with law and sought for dismissal of the writ petition.

I have carefully considered the arguments addressed by the learned counsel for the parties and perused the order impugned and other relevant records.

The only point that arise for consideration in this writ petition is:

"Whether the court fee as paid by the plaintiffs is in accordance with law?"

The records clearly disclose that the respondents 1 to 3 herein filed O.S. No. 143/1996 seeking for partition and separate possession of joint family properties. The plaintiffs and defendants 1 to 5 are the children of Kalasanka Manjunath Bhakta. The property in question is the ancestral property of both the plaintiffs and the defendants. In the partition, the plaintiffs claimed 3/8th share in the suit schedule properties and paid court fee under Section 35(2) of the Act. The defence taken up by the seventh defendant that it purchased the property from the defendants, since the plaintiffs are not in possession, they have to pay court fees under section 35(1) of the Act. The trial court after examining the matter held that whether the plaintiffs have been dispossessed has to be decided in the trial in a suit for partition of the family members who are in joint possession. Hence the court fees has to be paid under Section 35(2) of the Act and court fees is paid in accordance with law. Accordingly held the preliminary issue in favour of the plaintiff.

I find that there is no infirmity or irregularity in the said order of the trial court on issue No. 5. The plaintiffs and defendants 1 to 5 are the children of Kalasanka Manjunatha Bhatktha. The suit schedule property is the ancestral property of plaintiffs and defendants. The eldest member of the family is holding the property on behalf of the family. The plaintiffs and defendants became the co-owners and are in joint possession. In a partition suit, the court fee has to be paid under Section 35(2) of the Act. The order on the preliminary issue is in accordance with law. The petitioner has not made out any case to interfere with the order impugned.

Accordingly, the petition dismissed.