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2003 DIGILAW 259 (KAR)

G. BARAMAPPA v. KENCHAPPA

2003-03-12

N.K.PATIL

body2003
N. K. PATIL, J. ( 1 ) THIS Writ Petition is directed against the order passed by the Trial Court in O. S. No. 74/2002 dated 21-1-2003 on the file of Civil Judge, Sr. Divn. , Kudligi. ( 2 ) THE petitioner filed a suit for the relief of partition and separate possession of the suit schedule properties. In the said suit, the defendants /respondents filed their objections regarding payment of Court-Fees and the relief sought for by the petitioner. The Trial court held the said issue as a preliminary issue and passed the impunged order holding that the petitioner is liable to pay the Court-Fee on the market value as claimed by him to an extent of his share of Rs. 21,000/- under S. 35 (1) of the Karnataka Court-Fees and Suits Valuation Act. Assailing the said order on preliminary issue passed by the Trial Court in O. S. No. 74/2002 dated 21-1-2003, the petitioner presented this writ petition. ( 3 ) THE main ground canvassed by the learned counsel appearing for the petitioner is that the impugned order passed by the court below is contrary to the relevant provisions of the Karnataka Court-Fees and Suits Valuation Act. The petitioner is liable to pay the court-fees as provided under S. 35 (ii) of the Karnataka Court-Fees and Suits Valuation Act and not under S. 35 (i) of the said Act. Further, he submitted that it is crystal clear in the plaint presented by the petitioner that he is claiming a share in the joint family property. Therefore, he is not liable to pay the Court-Fees under S. 35 (i) of the Karnataka Court-Fees and Suits Valuation Act. To substantiate his case, he placed reliance on the judgment of this court in the case of Ningappa Karabasappa Shivanagutti v. Amarappa Karabasappa Shivanagutti reported in (1991)2 Kant LJ 373 wherein this Court has held that in a suit for partition and separate possession by a co-sharer notwithstanding the plaintiff not in possession whether the Court-Fees payable is under S. 35 (ii) or S. 35 (i) of the Court-Fees and Suits Valuation Act, 1958. In view of the law laid down by this court in the said case, the petitioner is not liable to pay the Court-Fees as provided under S. 35 (i) of the Karnataka court fees and suits valuation Act. In view of the law laid down by this court in the said case, the petitioner is not liable to pay the Court-Fees as provided under S. 35 (i) of the Karnataka court fees and suits valuation Act. ( 4 ) HEARD the learned counsel for the petitioner and the learned Government Advocate. Perused the impugned order passed by the Trial Court carefully and re-assessed the matter with the assistance of the learned counsel for the petitioner. ( 5 ) THE Trial court has passed the impugned order on a preliminary issue regarding the payment of Court-Fees in a suit filed by the petitioner for partition and separate possession. The Trial Court has given a specific finding that there was a notional partition between the petitioner and the respondents and in pursuance of the said notional partition, the respective names have been mutated in the relevant records. In view of that, the Court below has held that the petitioner is liable to pay the Court-Fees as provided under S. 35 (i) of the Karnataka court-fees and Suits Valuation Act. Following the law laid down by this Court in the case of Seetharama Reddy v. Hanumantha Reddy reported in 1975 (1) Kant LJ page 31 Short Notes 115 wherein this Court has held that "where the plaintiff sues for partition and possession alleging that the earlier partition was sham and not acted upon, the relief of declaration is unnecessary. The relief of partition and possession falls under S. 35 (1) and not under S. 24 (a ). Court-Fee has to be computed on the market value of the plaintiff's share. " The Trial Court has held that the petitioner has to pay the Court-Fees under S. 35 (i) of the Karnataka court-fees and Suits Valuation Act. Accordingly, answered the issue in the affirmative. ( 6 ) *in my considered view, I do not find any error of law or error of jurisdiction or any illegality or any material irregularity in the impugned order passed by the Trial Court. The Trial court has rightly held that the petitioner is liable to pay the court-fee as provided under S. 35 (i) of the Karnataka Court-Fees and suits Valuation Act. The Trial court has rightly held that the petitioner is liable to pay the court-fee as provided under S. 35 (i) of the Karnataka Court-Fees and suits Valuation Act. Taking into consideration the materials on record, it is not in dispute that there was notional partition between the petitioner and the respondents and in pursuance of the notional partition the name of the plaintiff got mutated in the relevant records. Therefore, I do not find any good grounds to interfere with the order passed by the Trial Court nor the petitioner has made out any specific prima facie case to entertain this revision petition. Having regard to the facts and circumstance interference by this court is unwarranted. Accordingly, the revision petition is dismissed. Petition dismissed. --- *** --- .