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Judgment
H. Billappa, J.—Sri S. Lakshminarayana, the learned AGA is directed to take notice. In this writ petition under Articles 227 of the Constitution of India, the petitioners have called in question, the order dated 14.12.2011, passed by the Trial Court in O.S. No. 60/2006 on issue No. 10 vide Annexure-F.
By the impugned order at Annexure-F, the Trial Court has directed the plaintiff to pay the court fee for the relief of declaration that the sale deeds are sham and nominal documents under sections 38 and 7(2)(b) of the Karnataka Court Fees and Suits Valuation Act and for the relief of declaration regarding possession under sections 24(b) and 7(2)(b) of the KCF and SV Act and for the relief of permanent injunction u/s 26(c) of the KCF and SV Act.
Aggrieved by that, the petitioners have filed this writ petition.
Briefly stated the facts are;
The 1st respondent-plaintiff has filed suit in O.S. No. 60/2006 for declaration that the sale deeds dated 21.6.1962 and 16.2.1967 are sham and nominal documents and they are executed as security for a sum of Rs. 500/- and not as a sale or outright sale and for permanent injunction.
The petitioners have filed written statement denying the plaint averments. The Trial Court has framed as many as 12 issues. Issue No. 10 relates to court fee. The petitioners have approached this court in W.P. No. 4299/2010 to treat issue No. 10 as preliminary issue. This court by its order dated 12.4.2010 has directed the Trial Court to treat issue No. 10 as preliminary issue. Thereafter, the Trial Court by its order dated 14.12.2011 has directed the plaintiff to pay the court fee for the relief of declaration that the sale deeds are sham and nominal documents u/s 38 and 7(2)(b) of the KCF and SV Act and for the relief of declaration regarding possession u/s 24(b) and 7(2)(b) of the KCF and SV Act and for the relief of permanent injunction u/s. 26(c) of the KCF and SV Act. Aggrieved by that, the petitioners have filed this writ petition.
The learned counsel for the petitioners contended that the impugned order cannot be sustained in law. He also submitted that the Trial Court has erred while observing that the plaintiff is in physical possession of the suit schedule property and therefore, the impugned order cannot be sustained in law.
I have carefully considered the submissions made by the learned counsel for the petitioners. I do not find any merit in the submission of the learned counsel for the petitioners. The suit is for declaration and permanent injunction. The plaintiff has claimed the relief of declaration that the sale deeds dated 21.6.1962 and 16.2.1967 are sham documents and they are executed as security for a sum of Rs. 500/- and not as a sale and for declaration that he is in lawful possession of the suit schedule property and for permanent injunction. The Trial Court taking into consideration the reliefs claimed, the plaint averments and following the judgment of the Hon''ble Supreme Court reported in 2010 AIR SCW 3754 has held that the plaintiff has to pay the court fee for the relief of declaration that the sale deeds are sham and nominal documents u/s 38 and 7(2)(b) of the KCF and SV Act and for the relief of declaration regarding possession u/s 24(b) and section 7(2) of the KCF and SV Act and for the relief of permanent injunction u/s 26(c) of the KCF and SV Act. The learned counsel for the petitioners did not point out any other provision of law under which the suit should have been valued. In so far as the contention that the Trial Court has observed that the plaintiff is in physical possession of the property is concerned, it is not correct. A careful perusal of the impugned order shows that there is no such observation. All that the Trial Court has said is that the plaintiff has to pay the court fee for the reliefs claimed. Except this, there is no observation that the plaintiff is in physical possession of the property. It is a disputed fact which needs to be considered based on evidence. Therefore, the impugned order does not call for interference. There is no merit in this writ petition and therefore, it is liable to be dismissed.
Accordingly, the writ petition is dismissed.