Defendant Nos.3 and 4 have filed the present writ petition against the order dated 30.11.2017 passed on preliminary issues framed on 3.11.2015 answering the additional issue with regard to the Court fee as negative holding that the suit has been properly valued for court fee and jurisdiction.

2. The plaintiffs filed the original suit for partition and separate possession of plaint ‘A’ schedule properties into five equal shares by metes and bounds with reference to good and bad soil and allotment of three such shares to them. The value of the properties was for a sum of Rs.15,00,000/- both for the purpose of court fee and jurisdiction and accordingly, Rs.200/- was paid as court fee under Section 35(2) of the Karnataka Court Fees and Suits Valuation Act, 1958; for declaration that the alleged registered sale deed dated 29.10.2010 alleged to have been executed before the Sub-Registrar Office, Mulki in favour of defendant Nos. 3 and 4 on the strength of alleged General Power of Attorney Deed dated 24.10.2007 is void, illegal and not binding on the plaintiffs; that the plaintiffs father Kittanna Shetty was enjoying the plaint ‘A’ schedule property in his individual capacity on the strength of occupancy rights granted by the Land Tribunal, Udupi on 25.8.1981 and after his death, the plaintiffs and defendants are his legal heirs and representatives.

3. It was further contended by the plaintiffs that the defendants were looking after and managing the affairs of the Plaint ‘A’ schedule properties on behalf of all the members of the family i.e., the plaintiffs and defendants, as the plaintiffs were residing at Mumbai. After the death of their father Kittanna Shetty, the RTCs., relating to the plaint ‘A’ schedule properties were all mutated in the name of defendant No.1 – Prema Shedthi being the manager of the family. The plaintiffs further submit that all of them and defendants are having equal 1/5th share in the plaint ‘A’ schedule properties and all are having joint and constructive possession of the plaint ‘A’ schedule properties. The plaintiffs further contended that they are willing to take their legitimate share in the Plaint ‘A’ schedule properties and expressed their willingness with the defendants during the 1st week of July 2010, but the defendants regretted their willingness on 5.7.2010 and gave an evasive answer that during the life time of defendant No.1 such occasion did not arise and in case of partition, they would inform the plaintiffs at appropriate time. By the regret answer of the defendants, the plaintiffs got some doubt and suspicion and immediately applied for grant of true extract of record of rights.

4. After obtaining the RTCs relating to the plaint ‘A’ schedule properties, they were surprised to note that all the plaint schedule properties have been converted for non-agricultural purposes and the defendants had neither informed nor obtained any permission from the plaintiffs to do so. The plaintiffs reliably came to know that the defendants are illegally and unlawfully planning to alienate the plaint ‘A’ schedule properties without their knowledge and if the defendants are illegally doing so, they would be put to heavy loss, injustice and hardship. Hence, the defendants, who are residing in their native place are misusing their absence by alienating or entering into an agreement of Sale Deed illegally behind their back . As the defendants never intended to give up the proportionate shares to them, suit was filed for partition of the plaint ‘A’ schedule properties and to allot proportionate share to them, etc.

5. Though defendant Nos. 1 and 2 filed the original written statement denying the plaint averments, have admitted that the ‘A’ schedule properties were granted by the Land Tribunal in favour of Kittanna Shetty on 25.8.1981. They have also contended that their father was enjoying the plaint ‘A’ schedule properties in his individual capacity till his death and after the death of their father Kittanna She