Siddappa vs Lakkamma

Anand Byrareddy, J.—Since Respondents 1 to 6 herein are represented by counsel, notice to the other respondents who are not the contesting respondents or not the plaintiffs before the Trial Court, is dispensed with.

The petition coming on for preliminary hearing, is considered for final disposal having regard to the circumstances of the case.

Heard the learned counsel for the petitioners and the learned counsel for the respondents. Respondents 1 to 6 are the plaintiffs before the Trial Court seeking partition and separate possession of the suit property and seeking to challenge several sale deeds that have been executed in respect of the suit property.

The petitioners herein are the coparceners who claim that there is a prior partition and that they have sold several items of property which had fallen to their share and therefore, had disputed the very maintainability of the suit and further, the properties being described as agricultural properties when they were clearly built-up and had been formed into residential sites and have been utilized for other non-agricultural purposes. In this regard, the court below had framed a preliminary issue as to the sufficiency of court fees paid and parties had also been permitted to tender evidence. It is the petitioners'' complaint that notwithstanding abundant material produced in support of the case that the suit property had been grossly under-valued and incorrectly shown as agricultural properties whey they were completely built-up or otherwise converted for non-agricultural purposes, the court below has ignored the material on record and has proceeded on the basis of certain admissions extracted from the witnesses for the petitioners and has proceeded as if the properties were agricultural properties.

The learned counsel would also point out that the very issue was the subject matter of the petition filed before this Court on an earlier occasion in W.P. 31222/2011 and this Court in its writ jurisdiction, by its order dated 6.3.2012 had directed the court below to rehear the matter and consider the material produced on record and had drawn specific reference to the material that was produced, which is extracted hereinbelow for ready reference:

"5. During the course of the evidence, it is brought on record that the purchasers have purchased the property from defendant Nos. 1 to 5 and the plaintiffs have tried to stop the construction. As many as 500 to 600 construction have come up and defendants have purchased the properties about ten years prior to the institution of the suit and they are in possession of the suit schedule properties. To support the said contention, in the evidence of the defendants, they have produced Ex. D1 in regard to the construction of temple, Ex. D1 is the invitation card of inauguration of the temple called Sri. Meenakshi Sundareshwara Temple, Ex. D2 the market value of the land for the purpose of registration within and around Bangalore, Ex. D3 the certified copy of the sale deed dated 24.5.1990 executed in favour of defendant No. 23, Ex. D4 the encumbrance certificate in respect of property No. 5 to show that the property has been sold to defendant No. 23, Ex. D5 the tax paid receipt and D6 the electricity and water bills. It is in the evidence that the land has lost the character of agriculture. The Trial Court, without actually looking into the documents and evidence on record, held that though the land is situated in the Corporation area, has not lost the character of agriculture as there is no conversion order. However, the actual facts have not been taken into consideration. In my opinion, the impugned order suffers from illegality of non-appreciation and consideration of relevant material and hence, the same requires reconsideration.

Accordingly, writ petition is part allowed. Order dated 16.6.2011 in O.S. No. 9003/2003 on the file of the 43rd Addl. City Civil Judge, Bangalore is set aside. Matter is remitted to the Trial Court for reconsideration of evidence and for giving finding as regard to the Court Fee."

Notwithstanding the specific findings and directions issued by this Court, the impugned order clearly indicates that the court below has overlooked the specific material that was referred to and was available on record. This is not only an affront to this court, but a gross violation of its duty to consider the material on record. He would further submit that the court below has cited a decision of the Supreme Court as well as this Court to hold that it is only the averments in the plaint and the written statement that would be relevant for deciding as to the sufficiency of court fees paid. This the learned counsel would point out is not in a case where a preliminary issue is framed and evidence is tendered which could not be ignored by the court below.

The learned counsel for the respondents on the other hand would vehemently canvass that the suit is of the year 2003 and the conduct of the petitioners has been such that there has been a concerted effort in delaying the proceedings. This is the third time that the petitioners are approaching this Court on the very same alleged cause and therefore, seeks to place reliance on a Division Bench judgment of this Court in the case of B.S. Malleshappa Vs. Koratagere B. Shivalingappa and others, , which has laid down the principles relating to Court fee in relation to suits for partition and appeals therefrom. The Division Bench was dealing with a case which has been decided finally and it is by virtue of the preliminary decree the court below having held that the court fees paid was not sufficient and having held that the plaintiff was bound to pay the court fees therein, that the court had occasion to deal with the matter and was not in a circumstance that a preliminary issue had been framed and evidence had been tendered which has been taken note of by this Court earlier and as already stated, there were specific directions to the court below.

Hence, the court below has failed in its duty to address the issue, in accordance with law. This is a mandate u/s 11(2) of the Karnataka Court Fees and Suits Valuation Act, 1958, which has been ignored. Hence, the petition is allowed and the matter is remanded. The court below shall hear the application once more if necessary, in order to address the material that is available on record and to pass appropriate orders, in accordance with law.