Dismissed

Sri Byanna v. Sri G M Ashwathaiah

Karnataka HC19 Mar 2024WP/53043/2017

Case brief

AI extract

What is this about?

Plaintiff challenged a trial court order directing payment of higher court fees on a suit for declaration of title over Schedule A property, recovery of encroached Schedule B portion and injunction. The High Court held valuation under Section 24(b) on the entire A schedule property applied, with the higher fee payable under Section 9, upheld the deficit direction, and dismissed the petition.

What did the court decide?

Petition dismissed; plaintiff directed to pay Rs.1,87,812.50 as deficit court fee within two weeks, with deduction of amounts already paid, failing which plaint liable to rejection.

Sri Byanna Vs Sri G M Ashwathaiah — Property and Title | Karnataka HC (2024)

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1 - NC: 2024:KHC:11131 WP No. 53043 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 19^TH DAY OF MARCH, 2024

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ WRIT PETITION NO.53043 OF 2017 (GM-CPC)

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BETWEEN:

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SRI. BYANNA, S/O LATE EMARALLEPPA, HINDU, AGED ABOUT 60 YEARS, RESIDING AT NO.24/1 2ND CROSS, BYRASANDRA VILLAGE, C.V. RAMNAGAR POST, BANGALORE - 560 093.

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…PETITIONER

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(BY SRI. ANIL RAMACHANDRA, ADVOCATE FOR SRI. H.R. ANANTHA KRISHNA MURTHY, ADVOCATE)

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AND:

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Digitally signed by BS RAVIKUMAR Location: HIGH COURT OF KARNATAKA

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SRI. G.M. ASHWATHAIAH, S/O MUNIKARIYAPPA, SINCE DEAD BY HIS LRS.

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1(A). SMT. RAMAMMA, W/O LATE G.M. ASHWATHAIAH AGED ABOUT 75 YEARS, NO.10, 3RD CROSS, 3RD MAIN, G.M.PALYA, NEW THIPPASANDRA POST, BANGALORE - 560 075.

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1(B). SMT. RUKKAMMA, W/O SRI. B. GOPALAGOWDA,

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D/O LATE SRI. G.M. ASHWATHAIAH, AGED ABOUT 50 YEARS, R/AT JOGAHALLI, SADAHALLI POST, DEVANAHALLI TALUK, BANGALORE RURAL DISTRICT - 562 110.

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1(C). SMT. INDRANI, W/O SRI. M. RAMU, D/O SRI. G.M. ASHWATHAIAH, AGE MAJOR, R/AT CHIKKABEGUR, BEGUR POST, BANGALORE - 560 068.

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1(D). SMT. PADMAVATHAMMA, W/O SRI. G.A. RAJANNA, D/O SRI. G.M. ASHWATHAIAH, R/AT NO.3/77, LINGARAJAPURA, THOMSON TOWN POST, BANGALORE - 560 084.

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SRI. M. MANJUNATH, S/O G.M. ASHWATHAIAH, HINDU, AGED ABOUT 38 YEARS, NO.10, GURUKAMANTHANPALYA, HOSA THIPPASANDRA POST, BANGALORE - 560 075.

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SRI. K. GOVINDARAJ, S/O LATE KEMPANNA, SINCE DEAD BY LRS,

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3(A). SMT. ANUSUYA, W/O LATE SRI. K. GOVINDARAJ, AGED ABOUT 60 YEARS.

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3(B). SRI. G. UMESH, S/O LATE SRI. K. GOVINDARAJ, AGED ABOUT 46 YEARS.

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3(C). SRI. G. KEMPURAJ, S/O LATE SRI. K. GOVINDARAJ, AGED ABOUT 41 YEARS.

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3(D). SRI. G. VENKATESH. S/O LATE SRI. K. GOVINDARAJ. AGED ABOUT 38 YEARS.

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THE LRS OF RESPONDENT NO.3 ARE R/AT NO.8/1, G.M. PALYA, BEML TOWNSHIP ROAD, BANGALORE - 560 075.

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SRI. G. KEMPARAJ, S/O GOVINDARAJ, HINDU AGED ABOUT 30 YEARS, R/AT BEML HOSPITAL ROAD, G.M. PALYA, NEW THIPPASANDRA POST, BANGALORE - 75.

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THE TAHASHILDAR, BENGALURU EAST TALUK, K.R. PURAM, BENGALURU - 560 036.

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…RESPONDENTS

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(BY SRI. S.D.N. PRASAD, ADVOCATE FOR R1(B, C, D) AND R2; SRI. KIRAN N., ADVOCATE FOR R3(A-D); VK FILED RETURNED WITH OFFICE OBJECTION IN RESPECT OF R4; R4 SERVED; SRI S.T. NAIK, AGA FOR R-5 VIDE ORDER DATED 09.12.2022, R1(A) DECEASED REPRESENTED BY LR I.E., R1(B-D) AND R2)

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4 - NC: 2024:KHC:11131 WP No. 53043 of 2017

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THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED:12.10.2017 PASSED BY THE HON'BLE XXVIII ADDL. CITY CIVIL AND SESSIONS JUDGE, MAYOHALL, BENGALURU [COURT HALL NO.29] IN O.S.NO.27106/2007 VIDE ANNEXUREG AND ETC.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The plaintiff in O.S.No.27106/2007 on the file of the

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XXVIII Additional City Civil and Sessions Judge, Mayohall, Bengaluru, has filed this petition challenging the correctness of an order dated 12.10.2017 by which the Trial Court directed the suit to be valued under Section 24(a), 26(b) and 26(c) of the Karnataka Court-Fees and Suits Valuation Act, 1958 (Hereinafter referred to as 'the Act' ).

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The suit in O.S.No.27106/2007 was filed for the following reliefs:-

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"a. For a declaration that the plaintiff's is the absolute owner of the schedule property.

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5 - NC: 2024:KHC:11131 WP No. 53043 of 2017

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b. For a permanent injunction restraining the defendants, their agents, servants, assigns or any other person acting or claiming on their behalf from interfering with the plaintiff peaceful possession of the schedule property;

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c. For recovery of the portion mentioned in the schedule "B" from the defendants.

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d. For enquiry into mentions mense profit in respect of Schedule "B" property.

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e. For a permanent injunction restraining the defendants, their agents, servants, assigns or any other person acting or claming on their behalf from interfering with the plaintiff peaceful possession of the schedule "A" property except one mentioned in the schedule "B" property.

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The suit schedule properties were described as schedule A and schedule B and the same are extracted

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below :-

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SCHEDULE 'A' PROPERTY

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All that part and parcel of Khata bearing No.497/339 measuring 230' x 70' of Garukamanthnapalya, Bangalore-560 075, bounded on the:-

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West by : Sy. No.69 North by : Sy. No.66 South by : Road

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SCHEDULE 'B' PROPERTY

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Portion of the plaint schedule property bearing No.497/339 of Garukamanthnapalya, Bangalore560 075, measuring East to West-35 feet and North to South 70 feet encroached by the defendants on the portion the "A" Schedule.

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The suit was valued under Section 24(b) of the Act for the relief of recovery of possession of the 'B' schedule property and under Section 26(c) for the relief of perpetual injunction in respect of the 'A' and 'B' schedule property. The Trial Court framed an issue regarding the valuation of the suit property based on the contentions urged by the defendants in the written statement that the suit was not valued properly. The defendant was examined as DW1 and based on the defence so adduced, the Trial Court held that Ex.D1 was the extract of guidance value of the residential sites at Garukamanthanapalya Village, for the period 19.04.2007 to 25.09.2011 and held that a sum of Rs.600/- was fixed as guidance value for the converted sites and Rs.550/- for CMC sites. Since the suit

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property was shown as a site, the Trial Court held that the market value of the property for the purpose of determining the Court fees had to considered at a sum of Rs.550/- per sq.feet. Accordingly, it directed the plaintiff to pay the Court fees under Section 24(a) of the Act for the relief of declaration and possession and under Section

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26(c) of the Act for the relief of perpetual injunction. Therefore, it held that the Court fee paid by the plaintiff was not sufficient and directed the plaintiff to file a fresh valuation slip and to pay the balance Court Fee. Being aggrieved by the said order, the plaintiff is before this Court.

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Learned counsel for the plaintiff contends that the suit was filed primarily in respect of the 'B' schedule property and not in respect of 'A' schedule property and therefore, the valuation of the suit 'B' property under Section 24(b) of the Act, was proper. He also contended that since two reliefs were claimed, the suit for declaration and recovery

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of possession, which commanded a higher court fee, the

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suit was therefore, properly valued under Section 24(b) of the Act.

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Per contra, learned counsel for the defendant contended that the suit was not filed for declaration in respect of 'B' schedule property alone, but was filed in respect of entire 'A' schedule property. He contended that 'B' schedule property was a portion of 'A' Schedule property and therefore, declaration could not be limited only to 'B' schedule property. Thus he contended that the suit for declaration of title ought to have been separately valued in respect of 'A' schedule property and the suit for recovery of 'B' schedule property also must have been valued separately under Section 24(a) of the Act.

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I have considered the submissions made by the learned counsel for the plaintiff and learned counsel for the defendants.

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A perusal of the relief sought for by the plaintiff in the suit shows that the suit was not only for declaration of

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title of the plaintiff to the schedule property, but also for recovery of possession of the 'B' schedule property and perpetual injunction in respect of Schedule 'A' property.

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Therefore, the suit must have been valued under Section 24(b) of the Act for the relief of declaration and consequential injunction in respect of the entire 'A' schedule property by treating the market value of the 'A' schedule property at a sum of Rs.550/- per Sq.feet. Since the plaintiff had also sought for recovery of possession, which fell under a different description, the Court fee payable on the suit is highest of the fee payable on the relief sought for in the suit. The plaintiff has sought for declaration in respect of 'A' schedule property and if the market value of the 'A' schedule property is considered at Rs.550/- per Sq.feet, then the value of the 'A' Schedule property would be Rs.88,55,000/-. If the suit is valued under Section 24(b) of the Act, then Court fee payable is on half of the market value of the suit property, which is Rs.44,27,500/-. The Court fee therefore, payable would

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be Rs.1,87,812.50. However, insofar as the relief under Section 24(a) of the Act, in respect of 'B' schedule property is concerned, the Court fee payable would be Rs.79,500/-. Therefore, under Section 9 of the Act, the higher of the Court fee viz., a sum of Rs.1,87,812.50 is to be paid on the plaint. The Trial Court has therefore, rightly directed the plaintiff to pay the deficit court fee. There is no error committed by the Trial Court in doing so.

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In that view of the matter, the petition is dismissed . The plaintiff is directed to pay a sum of Rs.1,87,812.50 within a period of two weeks from today. It is needless to mention that any amount already paid shall be given due deductions. It is clear that if the court fee is not paid within two weeks, the Trial Court shall reject the plaint in accordance with law as provided under Order VII Rule 11(b) of CPC.

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NG List No.: 1 Sl No.: 3 CT:SNN

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Sd/JUDGE

Sri Byanna v. Sri G M Ashwathaiah

Case brief

What is this about?

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Sri Byanna v. Sri G M Ashwathaiah

Case brief

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