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N. Kumar, J.

1. The plaintiffs have preferred this writ petition challenging the order passed by the trial Court allowing I.A. No. 7-an application filed by the 1st defendant under Section 11(2) of the Karnataka Court Fees and Suits Valuation Act, 1958 (for short hereinafter referred to as 'the Act') and directing the plaintiffs to value the suit property in accordance with the relevant provisions of the Act and pay the requisite Court fee before proceeding further in the matter.

2. The plaintiffs filed O.S. No. 166/2006 on the file of the II Civil Judge at Mysore for declaration that the palupatti dated 8.7.1973 is a forged, concocted and invalid document and that it does not relate to or refer to or apply to the suit schedule item Nos. 1 and 2 and for a mandatory injunction directing defendant Nos. 2 and 3 - the Executive Officer, Mysore Taluk Panchayath and the Secretary, Naganahally Grama Panchayath to reverse, annul and cancel the khatha entries made in respect of suit schedule item Nos. 1 and 2 on the basis of the concocted palupatti dated 8.7.1973 and to enter the name of the 1st plaintiff in the Khata pertaining to the said items.

3. The case of the plaintiffs is that the 2nd plaintiff is the second son of the first plaintiff and the first defendant is the first son of the first plaintiff; they constitute a joint family. In the year 1973, the 1st plaintiff effected partition of agricultural lands owned by the family which was reduced into writing on 5.7.1973. There is no dispute with regard to this property. However, no partition was effected in respect of the residential houses which are more fully described in Schedule 1 and 2 of the plaint. The plaintiffs claim that they came to know that the 3rd defendant/Naganahally Grama Panchayath changed the khatha in respect of all the schedule properties in the name of the 1st defendant and the 2nd plaintiff on the basis of a palupatti dated 8.7.1973, which is a concocted document. The 1st defendant, by grossly misusing the trust and confidence reposed in him by the plaintiffs, had obtained their signatures to a concocted palupatti obviously on the basis of some misrepresentation. The said concocted palupatti is invalid in law and does not bring about a partition of the suit schedule item Nos. 1 and 2. Therefore, in substance, cancellation of the said palupatti is sought in the form of declaration. The plaintiff valued the suit for the purpose of relief of declaration at Rs. 1,000/- under Section 24(d) of the Act and for the purpose of mandatory injunction also at Rs. 1,000/- under Section 26(c) of the Act and paid Court fee of Rs. 50/- on the memorandum of plaint.

4. After service of suit summons, the 1st defendant filed I.A. No. 7 under Section 11(2) of the Act to direct the plaintiffs to pay the Court fee on the market value of the property prevalent as on the date of the suit failing which to dismiss the suit. The 1st defendant contended that the plaint schedule property is worth more than Rs. 50 lakhs even though in the written statement filed, its market value is stated to be more than Rs. 10 lakhs.

5. The plaintiffs filed their objections contending that the suit is one for declaration and not for cancellation of the document. The palupatti is not a validly executed document and therefore, the question of seeking its cancellation or valuing the suit under Section 38 of the Act does not arise.

6. The trial Court framed the following points for consideration:

1. Whether it is necessary to direct the plaintiff to pay the Court fee as required under Section 38 of the Karnataka Court Fees and Suits Valuation Act?

2. If so, what Order?

7. After hearing the learned Counsel for the parties and referring to the judgment of this Court relied upon, the trial Court held that the plaint averments read as a whole make it clear that the plaintiffs are challenging the genuineness of the palupatti dated 8.7.1973. Therefore, the valuation of the suit as made by the plaintiffs is not prope