IMPORTANT POINT
Suit for partition of agricultural land shall be governed by provisions of Section 35(2) of Court Fee & Suit Valuation Act.

JUDGMENT

Arijit Pasayat, J. - Leave granted.

2. Challenge in this appeal is to the order passed by a learned single judge of the Karnataka High Court dismissing the Civil Revision Petition filed by the appellant.

3. Challenge before the High Court was to the order passed by learned First Additional Civil Judge, Junior Division, Mangalore, holding that Section 35(1) of the Karnataka Court Fee and Suit Valuation Act, 1958 (in short the Act) was applicable and not Section 35(2) of the said Act in a suit for partition relating to agricultural land. Originally the suit was filed by the appellants mother. She had filed the suit for partition of the scheduled property claiming that the same should be divided into two equal shares by meets and bounds through the process of Court. Plaintiff had filed suit under Section 7(2)(d) of the Act and paid court fee of Rs. 200/- under Section 35(2) of the Act. Four defendants filed written statement. Defendant Nos. 2 and 3 also filed written statement separately. After hearing the appellant, learned First Additional Civil Judge framed several issues on 19.12.1998. Appellant contended before the trial court that being a co-owner under the law she is presumed to be in constructive possession of the property and as such court fee is to be paid on the deemed market value and not on actual market value. Plaint scheduled property being agricultural property as such court fee is valued under Section 7(2)(d) of the Act and she cannot be compelled to value the said under Section 35(1) of the Act being a co-owner in respect of the plaint scheduled property along with the defendants. Defendants took the stand that the property is not agricultural property and is a house site and as such court fee under Section 35(1) of the Act is to be paid on the actual market value and not on deemed market value.

4. When PW1 was examined during the cross examination of the said witness the defendant No. 4 filed an I.A. under Order XIV, Rule 2(2) of the Code of Civil Procedure, 1908 (in short the C.P.C.) for framing additional issues and the same was allowed. Accordingly three additional issues were framed. Thereafter, defendant No.4 again filed an I.A. under Order XIV Rule 2(2) CPC for taking up additional issue No. 3 i.e. regarding payment of court fee as preliminary issue. The trial court was of the view that additional issue No.3 cannot be tried as a preliminary issue and posted the matter for consideration of all issues. Challenging the said order revision was filed before the High Court which disposed of the application stating that the defendant will be at liberty to adduce evidence on the court fee issue as permissible under law. Thereafter the matter proceeded. Again four defendants preferred revision before the High Court questioning direction of the trial court to adduce evidence on all issues. The High Court directed the trial court to treat additional issue no.3 as a preliminary issue and that is how the said issue was framed as preliminary issue. The trial court held that Section 35(1) of the Act was applicable and not Section 35(2) of the Act. The same was challenged by the appellant before the High Court. As noted above, the High Court dismissed the revision petition. The High Court held that though it is true that there is a graded scale under Section 35(2) of the Act which applies to partition suits etc. the trial court had "perhaps" rightly gone into special requirements and has concluded that Section 35(1) would apply to the facts of the present case.

5. Learned counsel for the appellant submitted that the approach of the High Court is clearly erroneous.

6. Learned counsel for the respondents on the other hand supported the judgments of the trial court and the High Court.

7. Identical issues came for consideration before the same High Court in T.K. Srinivasamurthy & Ors. v. T. Seetharamaiah and Ors. (AIR 1990 Karnataka 149). In para 4 of the judgment it was noted as follows:

"That question came up for cons