The main legal point established in the judgment is that seeking a declaration that a deed is not binding on a party's share in a partition suit does not amount to cancellation and attracts a different court fee under the Karnataka Court Fee and Suit Valuation Act, 1958.

B. VEERAPPA, J.

1. The plaintiff filed the present writ petition against the order dated 16.07.2018 on a preliminary issue in O.S. No. 135/2014 on the file of the learned Senior Civil Judge and JMFC, Mudigere, answering the same in the affirmative and directed the plaintiffs to value the suit under Section 38 of the Karnataka Court Fee and Suit Valuation Act, 1958 (Act for short) on A and B Schedule Property on market value as on the date of the suit and pay the court fee for their share and pay the court fee within one month from the date of the said order.

2. The plaintiffs filed a suit for partition, separate possession in respect of the suit schedule properties and for declaration to declare that the sale-deed dated 30.04.2014 executed by the defendant No. 1 alone in favour of defendant Nos. 8 and 9 alienating A and B schedule properties as document No. 221/2014-15 at volume No. 1, book No. 2, registered in the office of the Sub-Registrar, Mudigere is not binding on the share of the plaintiffs and to grant such other reliefs mainly contending that the suit schedule properties are the properties of all the defendant Nos. 1 to 7 and the plaintiffs and they are entitled for a share. The defendant Nos. 1 to 7 have not filed any Written Statement objecting the same. But defendant Nos. 8 and 9 have filed their Written Statement denying the plaint averments contending that they are the bona fide purchasers of the suit schedule properties from the first defendant and the suit filed by the plaintiffs is not maintainable.

3. Thereafter, defendant Nos. 8 and 9 filed an application under Section 11(2) of the Act read with Section 126 of Code of Civil Procedure, 1908 to decide issue No. 3 as preliminary issue i.e. "Whether the defendants prove that the valuation made is improper and court fee paid is insufficient?"

4. Reiterating the averments made in the application, it was opposed by the plaintiffs. The trial Court considering the application and the objections, by the impugned order dated 16.07.2018 allowed the preliminary issue in the affirmative and directed the plaintiffs to pay the court fee under the provisions of Section 38 of the Act, within one month. Hence the present writ petition.

5. I have heard the learned counsel for the parties to the lis and perused the material on record.

6. Shri Chandrashekaraiah, learned counsel appearing for the petitioner plaintiffs contends that the impugned order passed by the trial court directing the plaintiffs to value suit on the market value under Section 38 of the Act in a partition suit is erroneous and contrary to the material placed on record. He would further contend that in a suit for partition, plaintiffs sought for a declaration that the alienation made by the first defendant in favour of the defendant Nos. 8 and 9 in respect of A and B schedule properties is not binding on the share of the plaintiffs does not amount to cancellation. Therefore the learned judge is not justified in answering the preliminary issue in the affirmative. He would further contend that the impugned order passed by the trial court is contrary to law and cannot be sustained. Therefore, he sought to allow the writ petition.

7. Learned High Court Government Pleader who assisted the Court in this case also sought to justify the impugned order.

8. Shri Ravindranath, learned counsel appearing for Sri Dayanand S. Patil, advocate on record would contend that in a suit for partition and declaration, the sale-deed executed by the first defendant in favour of defendant Nos. 8 and 9 is not binding on the plaintiffs is nothing but cancellation of the same. Therefore, the plaintiffs have to pay the court fee under Section 38 of the Act. Therefore, he prays for dismissal of the writ petition.

9. Having heard the learned counsel for the parties, it is an undisputed fact that the plaintiffs filed a suit for partition, possession in respect of the suit schedule properties and consequentially the relief of declaration to de