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2014 Supreme(Kar) 727
High Court of Karnataka
N. KUMAR & B.S. INDRAKALA, JJ.
Sampangi Gowda & Others
Versus
Muddanna & Another
RFA. No. 872 of 2013 (Par)
Decided on : 04-04-2014
For the Appellants:P.B. Raju, P.S. Jagadish, Advocates.
For the Respondents:H. Ramachandra, Advocate.
Headnote:HINDU LAW - Partition: [N. Kumar & B.S. Indrakala, JJ] Plea of joint possession of Co-owners - Presumption - Held, the general principle of law is that in the case of co-owners, possession of one is possession of all unless ouster or exclusion is proved. To continue to be in joint possession in law it is not necessary that the plaintiff should be in actual possession of the whole or part of the property. Equally it is not necessary that he should be getting a share or some income from the property. So long as his right to a share and the nature of the property is not disputed, the law presumes that he is in joint possession. What the Court has to look into is the averment in the plaint. If in the plaint, it is averred that the plaintiffs and defendants are in joint possession, not withstanding the fact that they are living separately, even at two different places, in law it makes no difference. In the eye of law, in the case of co-parcenery, joint family or co-ownership, possession of one co-parcener, or member of the joint family or co-owner is possession of all. Then the case would fall under Section 35(2) of the Karnataka Court Fees & Suit Valuations Act, 1958. To take the case out of Section 35(2) of the Karnataka Court Fees & Suit Valuations Act, 1958, there should be a clear and specific averment in the plaint that the plaintiff has been excluded from joint family property, the averment should be that the plaintiff has been ousted from possession. If there is a clear and specific averment in the plaint that they have been excluded from joint possession to which they are entitled to in law, then the case would fall under Section 35(1) of the Karnataka Court Fees & Suit Valuations Act, 1958.
KARNATAKA COURT-FEES & SUITS VALUATION ACT, 1958 - Sections 35(1), 35(2) & 49: [N. Kumar & B.S. Indrakala, JJ] Payment of Court fees in partition suits - Finding of the Trial Court that the plaintiff is not in joint possession of the suit schedule property - Appealed against - Office of the Registry insisting on payment of Court fee under Section 35(1) of the Act on the basis of the findings recorded by the Trial Court - Held, in a suit for partition, if the Court, after trial, records a finding that the plaintiff is not in possession and the plaintiff challenges the said finding in the appeal, the correctness of the finding recorded by the Trial Court has to be gone into by the Appellate Court. Therefore, as the finding of the Trial Court has not attained finality, the question of the appellants paying Court fee on the basis of the finding of the Trial Court would not arise. Therefore, the High Court office cannot insist on payment of Court fee on the basis of the findings recorded by the Trial Court on the issue regarding possession. Further, As per Section 49 of the Karnataka Court Fees & Suits Valuation Act, the Court fee payable in an appeal shall be the same as that would be payable in the Court of first instance on the subject matter of the appeal. Whether the appeal is against the refusal of a relief or against the grant of the relief, the fee payable in the appeal shall be the same as the fee that would be payable on the relief in the Court first instance. The maximum fee payable in a suit for partition where joint possession is pleaded is Rs.200/- by virtue of Section 35(2) of the Karnataka Court Fees and Suits Valuation Act, 1958.
KARNATAKA COURT-FEES & SUITS VALUATION ACT, 1958 - Sections 35(1), 35(2) & 49: [N. Kumar & B.S. Indrakala, JJ] Payment of Court fees in partition suits - Plea of joint possession of Co-owners - Held, the general principle of law is that in the case of co-owners, possession of one is possession of all unless ouster or exclusion is proved. To continue to be in joint possession in law it is not necessary that the plaintiff should be in actual possession of the whole or part of the property. Equally it is not necessary that he should be getting a share or some income from the property. So long as his right to a share and the nature of the property is not disputed, the law presumes that he is in joint possession. What the Court has to look into is the averment in the plaint. If in the plaint, it is averred that the plaintiffs and defendants are in joint possession, not withstanding the fact that they are living separately, even at two different places, in law it makes no difference. In the eye of law, in the case of co-parcenery, joint family or co-ownership, possession of one co-parcener, or member of the joint family or co-owner is possession of all. Then the case would fall under Section 35(2) of the Karnataka Court Fees & Suit Valuations Act, 1958. To take the case out of Section 35(2) of the Karnataka Court Fees & Suit Valuations Act, 1958, there should be a clear and specific averment in the plaint that the plaintiff has been excluded from joint family property, the averment should be that the plaintiff has been ousted from possession. If there is a clear and specific averment in the plaint that they have been excluded from joint possession to which they are entitled to in law, then the case would fall under Section 35(1) of the Karnataka Court Fees & Suit Valuations Act, 1958.
Kumar, J.
1. The plaintiffs have filed a suit for partition and separate possession of their legitimate share in the suit schedule properties.
2. In Paragraph No.8 of the plaint, it is averred that the plaintiffs are the members of the joint family and they are in joint possession and cultivation of the suit schedule properties having their 1/4th legitimate right. It is alleged by the plaintiffs that, defendants solely enjoyed the suit schedule property without dividing the property though the suit schedule property is the joint family property. Therefore, they valued the suit for the purpose of jurisdiction at Rs.35 Lakhs and for the purpose of Court fee, they valued the suit under Section 35(2) of the Karnataka Court Fees and Suits Valuation Act, 1958 (for short, hereinafter referred to as the ‘Act’) and paid ad valorem fixed Court fee of Rs.200/-.
3. The Trial Court framed five issues and three additional issues. The additional issues are as under:-
i) Whether plaintiffs prove that they are in joint possession of the suit property along with defendants?
ii) Whether Court fee paid by the plaintiffs is sufficient?
iii) What order or decree?
4. On the additional Issue Nos.1 & 2, the Trial Court recorded a finding that the plaintiffs are not in possession of the suit schedule properties along with the defendants. Therefore, they have to pay the Court fee on the market value of the suit schedule property. In its opinion, the Court fee paid by the plaintiffs under Section 35(2) of the Act was not sufficient. Plaintiffs have to pay the Court fee under Section 35(1) of the Act. Ultimately, the suit came to be dismissed. Aggrieved by the said judgment and decree, the plaintiffs have preferred this Regular First Appeal.
5. In the appeal also, they have paid a Court fee of Rs.200/- as required under Section 49 of the Act. Office has raised an objection to the effect that the appellants/plaintiffs have to pay the Court fee as per Section 11(4)(a)(b) and Section 49 of the Act by valuing the suit under Section 35(1) of the Act as held by the Trial Court on additional issue No.2.
6. The appellant is challenging the said office objection.
7. We have heard the Learned Counsel for the parties.
8. Section 35 of the Act deals with partition suits, which reads as under:
35. Partition suits.- (1) In a suit for partition and separate possession of a share of joint family property or of property owned, jointly or in common, by a plaintiff whose title to such property is denied, or who has been excluded from possession of such property, fee shall be computed on the market value of the plaintiff’s share.
(2) In a suit for partition and separate possession of joint family property or property owned jointly or in common, by a plaintiff who is in joint possession of such property, fee shall be paid at the following rates:-
Rupees fifteen if the value of plaintiff’s share is Rs.3,000/- or less; Rupees thirty if the value is above Rs.3,000 but not more than Rs.5,000. Rupees one hundred if the value is above Rs.5,000 but below Rs.10,000 and Rs.200/- if the value is Rs.10,000 and above.
(3) Where, in a suit falling under sub-section (1) or sub-section (2), a defendant claims partition and separate possession of his share of the property, fee shall be payable on his written statement computed on half the market value of his share or at half the rates specified in sub-section (2), according as such defendant has been excluded from possession or is in joint possession.
(4)Where, in a suit falling under sub-section (1) or sub-section (2), the plaintiff or the defendant seeks cancellation of decree or other document of the nature specified in Section 38 separate fee shall be payable on the relief of cancellation in the manner specified in that section.
9. The Apex Court, interpreting Section 37(1) of the Tamilnadu Court Fees and Suits Valuation Act, which is similar to the aforesaid provision, in the case of JAGANNATH AMIN vs. SEETHARAMA (DEAD) BY LRS. AND OTHERS (20
