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2015 DIGILAW 741 (KAR)

Rajesh Khanna Bhat v. Rajani C. Bhat

2015-07-10

A.V.CHANDRASHEKARA

body2015
ORDER : A.V. Chandrashekara, J. 1. This is a petition under Article 227 of the Constitution of India challenging the order passed by the learned Civil Judge, Moodabidri, in an unnumbered original suit filed by the petitioner as plaintiff against two persons namely, Smt. Rajani C. Bhat and Chandrashekar Swamiji in the year 2014. Office of the said Court had raised certain objections in regard to the Court fee paid. According to the office, Court fee is to be paid at Rs. 18,00,000/- as found in the body of the plaint and not as found in the valuation slip furnished along with the suit. The learned Judge has upheld the office objections and has directed the petitioner to pay Court fee on the actual and real market value of the schedule property as on the date of filing the suit. It is this order dated 10-10-2014 which is challenged before this Court on various grounds as set out in the petition. 2. The petitioner has filed the above suit seeking the relief as found in paragraph 6(a) of the plaint which is as under: "(a) for a declaration that the alleged illegal registered gift deed dated 7-1-2014 (Document No. HLS/1/03379/2013-14 on CD No. HLSD90, dated 7-1-2014 in the office of the Sub-Registrar, Halasoor, Bangalore, executed by the 2nd defendant in favour of the 1st defendant in respect of the plaint 'A' Schedule property is null and void and not valid and binding on the plaintiff. Consequently for a permanent prohibitory injunction restraining the defendants, their men, servants, agents, successors, representatives and all persons claiming under them from trespassing into the plaint 'A' Schedule property, alienating the said property or in any way interfering with the peaceful possession and enjoyment of the plaint 'A' Schedule property by the plaintiff; (b) for a declaration that the alleged irrevocable power of attorney dated 9-5-2013 registered in the notary book as Sl. No. 384, page 5, Vol. 2, in Bangalore by the Notary, G.N. Venkataramanappa-Bangalore Metropolitan Area bearing Regn. No. 384, page 5, Vol. 2, in Bangalore by the Notary, G.N. Venkataramanappa-Bangalore Metropolitan Area bearing Regn. No. Law 39 LCL 2009 is null and void; (c) for payment of full costs of this suit; and (d) for such other and further reliefs as the Court deems fit to grant under the circumstances of the case." The necessary valuation is found below the prayer portion of the plaint: In respect of prayer (a) : The above relief is valued to the extent of 0-05 acre of converted land out of the plaint ‘A’ Schedule property on the basis of one-half of Rs.1,25,000-00 at the rate of Rs.25,000/- percent being its present market value at Rs.62,500 under Section 24(b) and a Court fee of Rs. 3,937-50 is paid and to the remaining extent of agricultural land of 0-04 acre is valued at Rs. 1,000-00 under Section 24(b) read with Section 7(2)(a) of Karnataka Court Fees and Suits Valuation Act at Rs. 1.00 on the basis of 25 times of Rs. 0-04 being the annual revenue payable on the said property and a Court fee of 25-00 is paid herewith; Rs.63,500/- In respect of prayer (b); The above relief is valued at Rs.1,000/- under Section 24(d) of Karnataka Court Fees and Suits Valuation Act, 1958 and a court fee of Rs.25-00 is paid on this relief Rs.1,000/- Total Rs.64,500/- Incorporating the same, the valuation slip is filed along with the suit. 3. The property over which the above relief is sought is 5 guntas of land in Survey No. 57/P3 of Kilpady Village, has already been converted into non-agricultural purpose. In the plaint, the plaintiff has specifically averred that he is the absolute owner in possession of the schedule property on the strength of a grant made by the Tahsildar, Mangalore Taluk in No. C. Dis.LNA/CR.114/2010-11. He is stated to have got 5 guntas of land converted vide order dated 28-10-2010 passed by the Tahsildar, Mangalore, in No. LNA/CR.115/2010-11. Thereafter the plaintiff is stated to have put up a house for his own use and has made valuable improvements therein by spending his hard earned money. He has further averred that the approximate value of the improvements is about Rs. 18,00,000/- (Rupees Eighteen Lakhs only). 4. Thereafter the plaintiff is stated to have put up a house for his own use and has made valuable improvements therein by spending his hard earned money. He has further averred that the approximate value of the improvements is about Rs. 18,00,000/- (Rupees Eighteen Lakhs only). 4. The main relief sought for by the plaintiff is virtually for the relief of declaration of his title and consequential relief of declaration to the effect that the gift deed dated 7-1-2014 executed by the 2nd defendant in favour of the 1st defendant is null and void and does not bind him and the consequentially for permanent injunction against both the defendants. 5. Plaintiff has valued the converted land of 5 guntas at the rate of Rs. 25,000/- per gunta and the total value of the converted land is Rs. 1,25,000/-. The said assessment is based on the guidance value published by the Government of Karnataka in the Official Gazette dated 13-7-2013. 6. What is observed by the Trial Court is that the assessing the value of 5 guntas of non-agricultural land at the rate of Rs. 25,000/- per gunta as per the guidance value would not be sufficient in view of his own averment made in the plant to the effect that he has put up a house and spent Rs. 18,00,000/- for improvements. This amount will have to be taken into consideration since it adds to the value of the land apart from the guidance value of the vacant converted land of 5 guntas. 7. Insofar as the relief of cancellation of gift deed is concerned, no value is forthcoming. Though a gift deed is a deed of conveyance, the value of the same will not be mentioned. The Court fee will have to be paid in respect of cancellation of a document on the basis of the value mentioned in the said document in terms of Section 38 of the Karnataka Court Fees and Suits Valuation Act, 1958. Therefore separate Court fee need not be paid in terms of Section 38 of the Act since the main relief is virtually the relief of declaration of his title in respect of the property in question. Hence the plaintiff has valued under Section 24(b) of the Act which indicates the real relief sought for, though not specifically found in the prayer column of the plaint. 8. Hence the plaintiff has valued under Section 24(b) of the Act which indicates the real relief sought for, though not specifically found in the prayer column of the plaint. 8. Though no specific prayer is made in the prayer column by the plaintiff, the pith and substance of the averments in the plaint is that he is the absolute owner in possession of the property and defendants are trying to deny his title on the basis of a gift deed stated to have been executed by the 2nd defendant in favour of the 1st defendant on the strength of a power of attorney allegedly executed by the plaintiff in favour of the 2nd defendant. Though the relief of declaration sought for, the alleged gift deed is no gift in the eye of law and the main relief in essence is to declare that he is the absolute owner in possession of the property. Therefore a sum of Rs. 18,00,000/- will also have to be taken into consideration apart from Rs. 1.25 lakhs assessed by him as guidance value towards 5 guntas of non-agricultural land. This has to be taken into consideration because he has put up a house on the land and has made improvements to the tune of Rs. 10,00,000/-. Therefore the plaintiff is expected to pay Court fee of half of the total value, i.e. Rs. 19.25 lakhs, as contemplated under Section 24(b) of the Act. 9. The guidance value relief upon by the plaintiff is relatable only to the market value to be ascertained for ascertaining the exact Court fee to be paid in respect of land only. The guidance value which is taken into consideration by the Sub-Registrar for the purpose of calculating stamp duty would be relatable to the market value for the purpose of reckoning the Court fee in a case like this. The averments made by the plaintiff that he has spent Rs. 18,00,000/- for improving the schedule land cannot be lost sight of while deciding the exact Court fee to be paid on the market value of the property since it adds to the value of the land found in the Gazette notification. Therefore no jurisdictional error is found in the approach adopted by the Trial Court. 10. 18,00,000/- for improving the schedule land cannot be lost sight of while deciding the exact Court fee to be paid on the market value of the property since it adds to the value of the land found in the Gazette notification. Therefore no jurisdictional error is found in the approach adopted by the Trial Court. 10. But the Trial Court has not indicated as to the Court fee to be paid, except stating that he is directed to pay the Court fee on the market value as on the date of filing of the suit. This can be corrected in terms of Article 227 of the Constitution of India. Accordingly the petition will have to be allowed in part upholding the order of the Trial Court to indicate the basis for ascertaining the market value of the property. The petition is disposed of, directing the Trial Court to collect the ad valorem Court fee on half of Rs. 19.25 lakhs under Section 24(b) of the Karnataka Court Fees and Suits Valuation Act. After collecting the same, the suit shall be registered. Learned Government Advocate, Smt. Anitha R. to file memo of appearance within a week from today.