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2015 DIGILAW 1204 (KAR)

V. Rani v. V. Subbamma

2015-10-29

ARAVIND KUMAR

body2015
ORDER : Aravind Kumar, J. 1. Heard Sri Praveen R.J.S., learned Advocate appearing on behalf of Sri Papireddy for petitioner. Order dated 9-10-2014 (Annexure-E) passed by XXXVIII Additional City Civil Judge, Bengaluru in O.S. No. 364 of 2010 is impugned in this writ petition whereunder Court below has answered issue 2 in the negative and directed the plaintiff to value the relief sought for in the suit for partition under Section 35(1) of the Karnataka Court Fees and Suits Valuation Act, 1958 and pay Court fee accordingly. To arrive at such a conclusion, Trial Court has held that on account of plaintiff having stated that release deed dated 25-10-2006 executed by the plaintiff is the factor which would establish that plaintiff is not in possession of suit schedule property and therefore, Court fee ought to be paid under Section 35(1) of the Karnataka Court Fees and Suits Valuation Act, 1958. 2. Perusal of the plaint averments which is at Annexure-A would indicate that suit filed by the plaintiff is for relief of partition and separate allotment of 1/9th share in the suit schedule property by metes and bounds. In paragraph 3, plaintiff has stated to the following effect: "3. That the said Venkata Muniyappa xxx 10-2-2005. Consequent upon his death, the plaintiff and the defendants 2 to 8 being the legal representatives have lawfully succeed to the schedule property and they have continued to hold and possess the same as joint owners." Averments made in the plaintiff is the guiding factor and not the plea raised in written statement. When plaintiff has specifically contended that suit property is a joint family property and defendants contended otherwise, it cannot be gain said by defendants that plaintiff ought to have valued the suit under Section 35(1) of the Karnataka Court Fees and Suits Valuation Act, 1958 and not under Section 35(2). When it is the specific case of the plaintiff that she continued to be in joint possession and enjoyment of suit schedule property, this Court is of the considered view that Trial Court could not have jumped to the conclusion that plaintiff is not in possession of suit schedule property on the basis of entry in revenue records. As such, impugned order cannot be sustained. Hence, I proceed to pass the following: ORDER "(1) Writ petition is hereby allowed. As such, impugned order cannot be sustained. Hence, I proceed to pass the following: ORDER "(1) Writ petition is hereby allowed. (2) Order dated 9-10-2014 (Annexure-E) passed by XXXVIII Additional City Civil Judge, Bengaluru in O.S. No. 364 of 2010 is hereby set aside. (3) Trial Court is directed to proceed with the suit on merits and in accordance with law." Ordered accordingly.