Sri. Naveen Vs Sri.N.B.Ramaswamy

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NC: 2026:KHC:31631 W.P. No.5224/2021

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25^TH DAY OF JUNE, 2026

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BEFORE

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THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.5224/2021 (GM-CPC)

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BETWEEN:

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SRI. NAVEEN S/O SRI. N.B. MANJUNATH AGED ABOUT 19 YERS R/AT NO.7/2, 19A, UPSTAIRS SECOND CROSS, SCKM ROAD SOUTHERN EXTENSION KOLLEGAL.

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…PETITIONER

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(BY SRI. MOOVENDAR R, ADV.,)

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AND:

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SRI. N.B. RAMASWAMY SINCE DECEASED BY LR’S.

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Digitally signed by RUPA V Location: HIGH COURT OF KARNATAKA

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1a. MRS. KOKILAVANI W/O N.B. RAMASWAMY.

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1b. N.R. MURALIKRISHNABABU S/O N.B. RAMASWAMY.

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1c. N.R. ARAVINDA DARSHAN S/O N.B. RAMASWAMY.

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1a TO 1c RESIDNG AT NO.65 GUBBI TOTADAPPA ROAD GANDHINAGAR BANGALORE 560009.

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HC-KAR

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1d. JYOTHI BALAJI D/O N.B. RAMASWAMY MAJOR, NO.915, IDIGARA STREET KRISHNAPURAM AMBUR VELLORE DISTRICT, TAMILNADU.

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SRI. N.B. GOPALAKRISHNA S/O N.B. BALAKRISHNAIAH MAJOR, PROPRIETOR RAGHUNANDAN LODGE POORNAIAH CHATRAM ROAD GANDHINAGAR, BANGALORE-560009.

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SRI. N.B. JANARDHAN S/O N.R. BALAKRISHNAIAH MAJOR, R/AT NO.62 21-A CROSS, VYALIKAVAL BANGALORE-560003.

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SRI. N.B. MANOJ KUMAR S/O N.R. BALAKRISHNAIAH MAJOR, R/AT NO.65 GUBBI TOTADAPPA ROAD GANDHINAGAR BANGALORE-560009.

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SMT. NAGAMANI W/O DR. K.R. CHANDRAN MAJOR, R/AT NO.26, I MAIN 1ST STAGE, 5TH PHASE WEST OF CHORD ROAD SRI MAHA GANAPATHI NAGAR BANGALORE-560044.

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SMT. MANJULA W/O SRI. PRAKASH MURTHY MAJOR, R/AT NO.1163 KONGADIAPPA MAIN ROAD DODDABALLAPUR.

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HC-KAR

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SMT. SHAMANTHAKAMANI W/O SRI. LAKSHMINARAYAN MAJOR, R/AT NO.7/5 GANESH COLONY KELAMANGALAM-635113.

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SMT. KALPANA W/O SRI. A.N. NAGARAJAIAH MAJOR, R/T NO.10/135 RAJARAJESHWARINAGAR GARADI STREET KOLLEGAL-571440.

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SMT. LEELA MANJUNATH W/O SRI. MANJUNATH MAJOR, MANJUNATH NILAYA NO.7/6B, 8TH CROSS SECOND MAIN ROAD BHUVANESHWAR NAGAR KOLLEGAL 571440.

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MS. RANJITHA D/O SRI. N.B. MANJUNATH AGED ABOUT 16 YEARS SINCE MINOR REP. BY MATERNAL UNCLE SRI. G.L. VENKATESHAIAH S/O G.K. LAKSHMINARAYANAIAH R/AT. NO.7-222, RAJARAJESHWARI KALYANAMANTAPA ROAD KOLLEGAL-571440.

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SMT. JAYAMMA D/O N.R. BALAKRISHNAIAH MAJOR, SINCE MENTALLY RETARDED REPRESENTED BY GUARIDA BROHTER SRI. N.B. MANOJ KUMAR RESIDING AT NO.65 GUBBI TOTADAPPA ROAD ANANDA RAO EXTENSION GANDHINAGAR, BANGALORE-560009.

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NC: 2026:KHC:31631 W.P. No.5224/2021

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HC-KAR

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SRI. N.B. HEMANDAR KUMAR S/O SRI. M. MANDANLAL AGED ABOUT 44 YEARS.

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SMT. H. USHA KATARIA W/O N.B. HEMANDAR KUMAR AGED ABOUT 39 YEARS.

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SARI M. RAJESH KUMAR S/O SRI. M. MADANLAL AGED ABOUT 35 YEARS

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R12 TO R14 ARE RESIDNG AT NO.50 SRI. LAKSHMI VENKATESHWARA NAGAR II CROSS, GANIGARA A LANE NAGARTHPET, BANGALORE-560002.

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SRI. S.N. UMESH S/O SRI. NARASIMHAIAH AGED ABOUT 42 YEARS R/AT NO.794/E, 3-A MAIN ROAD R.P.C. LAYOUT VIJAYANAGAR II STAGE BANGALORE-560040.

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…RESPONDENTS

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(BY SRI. R. VIJAYAKUMAR, ADV., FOR R1 (a, c & d) R2-R4, R6 & R8 SRI. A. CHANDRACHUD, ADV., FOR R15 V/O/DTD:28.10.22, R1(b), R9, R11-R14 ARE NOTICE D/W R5, R7 AND R10 ARE SD AND UNREPRESENTED)

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THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DTD.13.11.2019 PASSED BY THE XLII ADDL. CITY CIVL JUDGE BENGALURU CITY (CCH 43) IN O.S.NO.3034/2007 VIDE ANNEXURE-A & ETC.

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THIS PETITION HAVING BEEN HEARD AND RESERVED ON 23.06.2026, COMING ON FOR PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT MADE THE FOLLOWING:

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NC: 2026:KHC:31631 W.P. No.5224/2021

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HC-KAR

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CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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CAV JUDGMENT

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This writ petition is filed challenging the order dated 13.11.2019 passed by the XLII Additional City Civil Judge

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and Sessions Judge, Bengaluru City (for short ‘the Trial Court’) in O.S.No.3034/2007.

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The parties shall be referred to as per their

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ranking before the Trial Court for the sake of convenience.

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The brief facts leading to the filing of this petition are that the plaintiff filed a suit for partition and possession against the defendants in O.S.No.3034/2007. In the said suit, the defendants filed written statements opposing the plaint averments and also contending that the suit was incorrectly valued under Section 35(2) of the Karnataka Court Fee and Suits Valuation Act, 1958 (hereinafter referred to as the ‘Act’) and the suit ought to have been valued under Section 35(1) of the Act as the plaintiff and the defendants were not in joint possession of

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the properties. The Trial Court considered the said contentions and framed the issues, wherein the issue with regard to the insufficiency of Court fee was framed as an additional issue No.1. The Trial Court considered the said issue as a preliminary issue and proceeded to pass the impugned order directing the plaintiff to pay the Court fee as per Section 35(1) of the Act. Hence, this petition is filed.

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Sri.Moovendan R, learned counsel appearing for

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the petitioner submits that the Trial Court has passed the impugned order without considering the material on record and the law in its proper perspective. It is submitted that the suit of the petitioner is for partition and separate possession of 1/5^th share in the properties and it is clearly pleaded that the plaintiff and the defendants are in joint possession of the properties, hence, the Court fee was rightly calculated as per Section 35(2) of the Act. It is further submitted that the issue with regard to the insufficiency of the Court fee cannot be tried as a

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preliminary issue before considering the evidence on other issues and the Trial Court ought to have recorded other evidence before passing the impugned order by treating the issue with regard to insufficiency of the Court fee as the preliminary issue. In support of his contentions, he placed reliance on the decisions of this Court in the cases of SRI.SAMPANGI GOWDA AND OTHERS Vs. SRI.MUDDANNA AND ANOTHER¹ and SRI.R.ANAND AND OTHERS Vs. SMT.ANJINAMMA AND OTHERS² .

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Hence, he seeks to allow the petition.

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5. Per contra , Sri.R.Vijayakumar, learned counsel

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appearing for respondents Nos.1(A, C and D), 2, 3, 4, 6 and 8 and Sri.A.Chandrachud, learned counsel appearing for the respondent No.15 support the impugned order of the Trial Court and submit that the Trial Court has considered the material on record in its proper perspective and the same does not call for any interference. It is submitted that the Trial Court has made a clear finding

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1 ILR 2014 KAR 3707

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2 W.P.No.26065/2018 dt. 25.09.2025

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HC-KAR

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that the suit for partition is not maintainable as the partition has already taken place. It is further submitted that the sale deeds dated 31.03.2005, 09.06.2006 and 27.07.2006 produced by the defendants clearly disclose that some of the properties of the suit schedule properties

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are alienated and the plaintiff is also a signatory to the sale deed produced at Ex.D17. Hence, the said aspects have been rightly considered by the Trial Court before passing the impugned order and the same does not call for any interference. In support of their contentions, they placed reliance on the decision of the Full Bench of this Court in the case of VENKATESH R DESAI Vs. SMT.

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PUSHPA HOSMANI AND OTHERS³ . Hence, they seek to dismiss the petition.

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I have heard the arguments of the learned counsel for the petitioner-plaintiff, learned counsel for the respondents-defendants and perused the material

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3 AIR 2019 KAR 47

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available on record. I have given my anxious consideration to the submissions advanced on both the sides.

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The plaintiff filed a suit for partition and possession against the defendants in O.S.No.3034/2007. In the said suit, the defendants filed written statements opposing the plaint averments and also contending that the suit was incorrectly valued under Section 35(2) of the Act and the suit ought to have been valued under Section 35(1) of the Act as the plaintiff and the defendants were not in joint possession of the properties. The Trial Court considered the said contentions and framed the issues, wherein the issue about the insufficiency of the Court fee was framed as an additional issue No.1. The Trial Court considered the same as a preliminary issue and proceeded to pass the impugned order directing the plaintiff to pay the Court fee as per Section 35(1) of the Act.

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HC-KAR

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The Trial Court while passing the impugned order has held that the plaint averments though claim that the plaintiff and the defendants were in joint possession, the very same plaint also indicates that the plaintiff and his sister began to reside with the defendant No.9-their mother at Kollegal after the death of their father. It was further held that Exs.D16 to D18 – sale deeds and Exs.D2 to D15 – tax paid receipts and the khatha extracts clearly indicate that the land was alienated in favour the purchasers and the khatha and tax paid receipts were standing separately in the name of their respective owners. It was also held that the sale deed at Ex.D17 was also signed by the plaintiff and that the plaintiff, who was examined as PW-1 in his cross-examination has clearly stated that he doesn’t know who is in possession of the suit schedule properties.

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The aforesaid findings of the Trial Court are

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after considering the plaint averments, documents and the

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NC: 2026:KHC:31631 W.P. No.5224/2021

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HC-KAR

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evidence of PW-1. However, it is to be noted that the Trial Court has made a clear finding at paragraph 9 as under:

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“From the above Sale Deeds, it discloses that some of the properties are alienated to the purchasers for valuable consideration and possession of the alienated properties are handed over to the purchasers.”

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The aforesaid finding makes it clear that only some of the properties have been alienated and the possession of the said properties are handed over to the purchasers. Hence, in view of the aforesaid finding, the Trial Court has committed an error in passing a blanket order directing the plaintiff to pay the Court fee as per Section 35(1) of the Act, for all the suit schedule properties. It is trite law that the Court fee under Section 35(1) of the Act, is to be paid for only those properties where the plaintiff is not in joint possession and those properties where the plaintiff is found to be in joint possession are required to be excluded. Hence, it would be appropriate if the Trial Court is directed to consider the issue of insufficiency of Court fee along with other issues

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and after considering other evidence on record and ascertaining as to what properties the plaintiff is in joint possession of.

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Though the learned counsel for the petitioner

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and the respondents have raised other contentions and placed reliance on the various decisions of this Court, the

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same need not be gone into as the Trial Court is first required to ascertain the properties in which the plaintiff is in joint possession and in which of the properties the plaintiff is not in joint possession and thereafter, based on such conclusion, the plaintiff is required to be issued with a direction to pay the appropriate Court fee.

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