ASHOK B. HINCHIGERI, J.

1. The petitioner has called into question the order, dated 14.12.2006 (Annexure-A) passed by the Court of I Additional Civil Judge (Jr.Dn.) Mangalore, D.K, on the preliminary issues in O.S.No.116/2005.

2. The facts of the case in brief are that the respondents filed the suit seeking the relief of declaration that the sale deed, dated 22.10.1997 is illegal, void abinitio non-est and for a consequential decree for giving possession of the schedule flat by the petitioner or any person claiming under him or through him to the respondents. The petitioner raised the plea of insufficiency of Court fee and contended that the said Trial Court has no jurisdiction to try the suit. Based on the rival pleadings and the I.A.No.4 filed by the petitioner, the Trial Court framed tow additional issues, which are as follows:

1. Whether the plaintiffs prove the relief valued by them for the purpose of Court fee and jurisdiction and relief of possession is correct and proper?

2. Whether the defendant proves that this Court has no jurisdiction to entertain the suit?

The two afore extracted additional issues were taken as preliminary issues. The Trial Court answered both the issues against the petitioner-defendant. This petition is presented assailing the Trial Court’s order on the said issues.

3. Smt. Pushpalatha, the Learned Counsel appearing for Sri B.L. Acharya for petitioner submits that the suit involves annulment of registered sale deed, dated 22.10.1997. The consideration shown therein is Rs.7,80,000/-. As the respondents have virtually raised the challenge to the sale deed, they are liable to pay the Court fee as per Section 38 of the Karnataka Court Fees and Suits Valuation Act, 1958 (K.C.F. & S.V. Act for short). If the valuation is done accordingly, the Court of Learned Civil Judge (Jr.Dn.) has no pecuniary jurisdiction to try the suit in question as its jurisdiction is confined to only Rs.5,00,000/- under Section 17 of the Karnataka Civil Courts Act, 1964.

4. The Learned Counsel submits that the respondents cannot overcome the requirement of paying Court for computing the value of the subject matter of the suit by avoiding or omitting the use of expression ‘cancellation of the sale deed.’ If the relief as prayed for is granted, it would only mean the cancellation of the sale deed.

5. The Learned Counsel for the petitioner brings to my notice that no Court fee whatsoever is paid on the relief of recovery of possession. She submits that separate Court fee has to be calculated as per the provisions contained in Section 24(a) of the K.C.F. & S.V. Act taking into account the market value of the property.

6. The Learned Counsel has relied on the decision of this Court in the case of Visvaramahotels Ltd. Vs. Anjuman-E-Imamia and Others, 1984 (2) Kar.L.J. 185 wherein it is held that the defendant has an absolute right to contest the valuation. She has relied on paragraph 24 of the said decision, which is extracted hereunder:

“24. The valuation in a suit that can even affect the jurisdiction of a Court to entertain and decide that suit, may also affect the Court fee payable. In a given case the Court fee payable may depend on the valuation. But, valuation never depends on the Court fee payable under the Act. Both are separate and distinct and the former can never be mixed up with the latter. Valuation for the purpose of suit and jurisdiction, cannot be confused with the valuation for purpose of Court fee. Both are separate and distinct”.

7. Nextly, the Learned Counsel brings to my notice the Division Bench Judgment of this Court in the case of Shrinwas Konheri Kulkarni Vs. Subbappa Mahatru Nidagalkar and Others, 1976(2) Kar.L.J. 202 wherein it is held that a suit for a decree of permanent injunction based on denial of title is one falling under Section 26(a) of the K.C.F. & S.V.Act. The valuation of such a suit for the purposes of Court fee ought to be have been made in accordance with Section 7(2) of th