Allowed

H.P. Manjunath v. Smt. H.R. Sabitha

Karnataka HC3 Nov 2020WP/39423/2015

Case brief

AI extract

What is this about?

Petitioner sought writ to quash order finding trial court had pecuniary jurisdiction. High Court held valuation must include entire property area where title is declared, not just possession sought, totaling over Rs.5 lakhs, exceeding junior civil judge limit.

What did the court decide?

Order on issue No.7 set aside; suit transferred to Court of Senior Civil Judge, Mudigere to proceed from current stage.

H.P. Manjunath Vs Smt. H.R. Sabitha — Property and Title | Karnataka HC (2020)

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W.P. No.39423 OF 2015

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 3^RD DAY OF NOVEMBER, 2020

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BEFORE

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THE HON’BLE MR. JUSTICE SURAJ GOVINDARAJ

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WRIT PETITION NO.39423 OF 2015 (GM-CPC)

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BETWEEN:

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H.P. MANJUNATH AGED ABOUT 59 YEARS S/O PUTTE GOWDA HANUMANAHALLI VILLAGE KENJIGE POST MUDIGERE TALUK-577132 CHIKKAMAGALURU DISTRICT. ... PETITIONER

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(BY SRI. CHIDAMBARA G.S, ADVOCATE)

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AND:

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SMT. H.R. SABITHA W/O RAMACHANDRA AGED ABOUT 48 YEARS HANUMANAHALLI VILLAGE KENJIGE POST MUDIGERE TALUK-577132 CHIKKAMAGALURU DISTRICT.

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H.P. KESHAVA AGED ABOUT 52 YEARS S/O PUTTE GOWDA R/O HANUMANAHALLI VILLAGE KENJIGE POST MUDIGERE TALUK-577132 CHIKKAMAGALURU DISTRICT ... RESPONDENTS

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(BY SRI. K.M. SANATH KUMAR, ADVOCATE FOR R1; R2-SERVED)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED

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W.P. No.39423 OF 2015

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04.09.2015, VIDE ANNEXURE-A PASSED BY THE COURT OF THE ADDL. CIVIL JUDGE & JMFC AT MUDIGERE IN O.S.NO.103/2009 ON ISSUE NO.7 AND PASS APPROPRIATE CONSEQUENTIAL ORDERS ON SAID PRELIMINARY ISSUE AND ETC.

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THROUGH VIDEO CONFERENCE THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner is before this Court seeking for a writ quashing the order dated 4.09.2015 passed by the Addl. Civil Judge and JMFC, Mudigere in O.S.No.103/2009 on issue No.7.

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The plaintiff-respondent No.1 had filed a suit in O.S.No.103/2009 seeking for the following reliefs:

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a. For declaration declaring that the plaintiff alone is the absolute owner of plaint schedule properties including encroached “A” & “B” schedules.

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b. For recovery of possession of “A” & “B” Schedules from defendants and to deliver the same to the plaintiff.

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c. For permanent injunction restraining the defendants, their men, agents, servants or anybody claiming through them from trespassing the plaint schedule properties or further encroaching the plaint schedule properties or causing any acts of waste or disturbing the peaceful possession, occupation

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W.P. No.39423 OF 2015

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and enjoyment of the plaint schedule properties by the plaintiff.

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d. For an enquiry as to the mesne profits.

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e. For court cost and such other reliefs, this Hon’ble Court deems fit to grant under the circumstances of the case, in the ends of justice and equity.

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The defendant entered appearance and filed written statement. One of the contentions taken up therein is that the valuation made of the suit is not proper, nor the court fee paid is proper. Apart from the above, the defendant had taken up the contention that the Civil Judge (Jr.Dn), Mudigere did not have pecuniary jurisdiction to try the said matter. On the pleadings being completed, the trial Court framed the following issues:

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Whether the plaintiff proves that suit properties are ancestral properties and she inherited the suit properties after the death of her mother ?

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Whether the plaintiff proves that defendant No.1 encroached to an extent of 27 guntas in suit Sy.No.80 of Hanumanahalli village ?

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Whether the plaintiff proves that defendant No.2 has encroached to an extent of 26 guntas in Sy.No.44/p2 of Halike village ?

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W.P. No.39423 OF 2015

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Whether the plaintiff is entitled for the relief of declaration that she is the absolute owner of suit survey item No.1 and 2 including 'A' and 'B' suit properties ?

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Whether the plaintiff is entitled for the recovery of possession of 'A' and 'B' suit properties from defendants ?

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Whether the court fee paid is proper ?

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Whether this court has pecuniary jurisdiction to try and entertain this suit ?

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The application was filed an application to treat issue No.7 as a preliminary issue, in pursuance of which it was so done, and orders on preliminary issue No.7 was passed on 4.9.2015 holding that the Court had pecuniary jurisdiction to try the suit.

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The defendant, who is the petitioner herein is before this Court contending that the order passed by the trial Court is not proper, the relevant factors have not been taken into consideration, the trial Court has misapplied itself as regards the relief which had been sought for in the suit, inasmuch as at prayer (a) which has been extracted hereinabove, the plaintiff had sought for a declaration that the plaintiff is the owner of the plaint

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W.P. No.39423 OF 2015

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schedule properties which includes item No.1 measuring 1.20 acres and item No.2 measuring 2 acres, whereas

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the trial Court has misdirected itself by only considering the relief sought for in respect of A & B schedules relating to possession thereof schedule-A measuring 27 guntas and schedule-B measuring 26 guntas.

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Sri.Chidambara.G.S, learned counsel for the Petitioner submitted that :

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6.1. It is due to the said misapplication and misdirection by the trial Court that valuation taken into consideration by the trial Court while passing orders on issue NO.7 is not proper and therefore, the finding on the jurisdiction of the Court would consequently have to be set aside.

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6.2. While referring to the order passed by the trial Court, more particularly paragraphs 8 and 10 he submits that the trial Court has taken the valuation of the Sub-registrar for item No.1 property at Rs.1,65,000/- per acre and for item No.2 property at Rs.1,21,000/per acre.

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W.P. No.39423 OF 2015

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However, while valuing the property for suit at para 10, the trial Court has only taken the schedule A and B properties to arrive at a valuation of Rs.1,11,372/-. This he submits is contrary to the prayer sought for and therefore, the impugned order is required to be set-aside.

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Per contra, Sri.Sanath Kumar, learned counsel for the respondent No.1/plaintiff submits that:

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7.1. There is no dispute as regards the entire item Nos.1 and 2 property.

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7.2. The dispute between the plaintiff and defendant is only as regards schedule A and B property.

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7.3. Merely because the relief at prayer (a) is as regards item Nos.1 and 2 properties, the court fee is not required to be paid on the entire properties and/or the jurisdiction determined on that basis.

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7.4. He therefore submits that the valuation arrived at by the trial Court for A and B schedule properties is proper. Hence, the court fee paid is proper and

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consequently, the trial Court has jurisdiction in the matter.

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Heard Sri.Chadambara.G.S, learned counsel for the petitioner and Sri.Sanath Kumar Shetty, learned counsel for the respondent. Perused papers.

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The short question that would arise for consideration by this Court is, whether in a suit for declaration and recovery of possession when the extent of the property as regards the declaration of title is sought for is more than that as regards the extent as regards which possession is sought for, on what basis the pecuniary jurisdiction of the Court is to be determined?

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A perusal of the plaint indicates that item No.1 of plaint schedule A property measures 1.20 acres and item No.2 measures 2 acres. Schedule-A measures 27 guntas which is part of item No.1 property, Schedule B property measures 26 guntas which forms part of item No.2 property.

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As per Sub-registrar's valuation item No.1 property, the value at Rs.1,65,000/- per acre, thus the valuation insofar as item No.1 property would be Rs.2,47,500/and item No.2 property, the value is at Rs.1,21,000/per acre, thus the entire value of item No.2 property would be Rs.2,42,000/-. The commissioner who was appointed to value the market value of the house constructed on item No.1 property is valued at a sum of Rs.1,11,323/-. Thus, in effect all these three components would have to be taken into consideration to arrive at the valuation of the property for the purpose of jurisdiction.

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Though the prayer as regards possession is only sought for regarding 27 guntas in item No.1 property as per schedule-A and 26 guntas in item No.2 as per schedule B, the prayer at (a) is for declaration of title over the entire plaint schedule properties which would include 1.20 acres in item NO.1 and 2 acres in item No.2. Hence, I am of the considered opinion that it is the entire property which would have to be taken into

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consideration to arrive at the valuation for the purpose of determining the pecuniary jurisdiction of the Court.

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As aforesaid item No.1 property is valued at Rs.1,65,000/- and item No.2 is valued at Rs.2,42,000/and the construction put up thereon is valued at Rs.1,11,323/-, totaling to Rs.5,18.323/-. The Civil Judge (Jr.Dn), Mudigere would have a pecuniary jurisdiction only to an extent of a value of the plaint/property being Rs.Five lakhs or below. The present valuation is being more than Rs.Five lakhs, the said court would not have pecuniary jurisdiction to try the matter. Hence, the finding of the trial Court on issue NO.7 that it has the pecuniary jurisdiction is required to be set-aside and is therefore, set-aside.

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Both the learned counsel submit that the court having pecuniary jurisdiction above Rs.Five lakhs is the Senior Civil Judge, Mudigere, which court is also located at Mudigere. Hence, the suit in O.S.NO.103/2009 is transferred to the Court of Senior Civil Judge, Mudigere. Taking into account the decision of the Hon'ble Apex

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Court in Hari Singh Nagra and Others –v- Kapil Sibal and others reported in (1997) 1 SCC 502 , the Senior Civil Judge, Mudigere is directed to proceed with the matter from the stage at which the matter stands as of now.

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The petition is accordingly allowed.

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Sd/JUDGE

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H.P. Manjunath v. Smt. H.R. Sabitha

Case brief

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H.P. Manjunath v. Smt. H.R. Sabitha

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