In a partition suit, an issue concerning court fees and valuation should not be treated as a preliminary issue under Order XIV Rule 2 CPC unless it directly affects the Court's jurisdiction, as such issues should be decided along with the merits of the case.

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI QUASHING THE ORDER ON I.A.NO.20 DATE 25.07.2019 PASSED IN O.S.NO.90/2013 PASSED BY THE LEARNED SENIOR CIVIL JUDGE AND JMFC BASAVAKALYAN WHICH IS AT ANNEXURE-F BE PASSED AND ETC.

THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP THIS DAY, THE COURT PASSED THE FOLLOWING:-

ORDER

This Writ Petition is filed by the plaintiff in O.S. No.90/2013 pending trial before the Senior Civil Judge at Basava Kalyana (henceforth referred to as 'Trial Court) challenging the order dated 25.07.2019, by which the Trial Court treated issue No.6 relating to Court fee as a preliminary issue.

2. The parties herein are referred to as per their rank before the Trial Court.

3. The plaintiff filed a suit for partition and separate possession of his share in the suit schedule properties . In the plaint, the plaintiff clearly described that the suit properties were converted for non-agricultural use by defendant No.2 and a layout was formed comprising of 153 plots, out of which 30 plots were sold by defendant No.2 and remaining plots stood in the name of defendants No.2 and 6 to 9. It was also contended that defendant No.2 had executed a partition deed in favour of defendants No.6 to 9 on 19.04.2006 in respect of the sites in the aforesaid land. He, therefore, sought for a preliminary decree of partition, declaring his share in the suit schedule properties and also for a declaration that the partition deed dated 19.04.2006 was null and void and did not bind the share of the plaintiff and for perpetual injunction. The suit was valued under Section 35(2) of the Karnataka Court-Fee and Suits Valuation Act, 1958 (henceforth referred to as 'the KCF & SV Act', for short) and court fee of Rs.200/- was paid.

4. Defendants No.1, 2, 3 and 6 contested the suit and denied the right of the plaintiff to any share in the suit schedule properties. They contended since the properties were admittedly converted for residential use and layout was formed, the suit could not be valued under Section 7 of the KCF & SV Act. They claimed that the plaintiff was out of joint possession as the layout was formed and some sites were sold.

5. Based on the aforesaid, the Trial Court framed the following issues :

i. Whether plaintiff proves that suit schedule 'A' and 'B' joint family properties hence, he has undivided share in the same as being alleged?

ii. Whether plaintiff proves that the registered partition deed dated 19.04.2006 is cooked up being his back and it does not effect his right as being alleged?

iii. Whether the defendant Nos.2 and 6 prove that the defendant No.2 is the exclusive owner for the suit properties except suit Item No.2 as being contended?

iv. Whether the defendant Nos.2 and 6 prove that the act, deed and conduct of plaintiff and defendant Nos.3 to 5 is hit by the principles of estoppel and also limitation as being contended?

v. Whether plaintiff proves that he has impleaded all the parties to the suit who are actually necessary?

vi. Whether plaintiff proves that the Court fees paid by him is correct and adequate?

vii. Whether plaintiff is entitled for the relief as sought for?

viii. What order or decree?

6. At this stage, the defendant No.2 filed an application under Section 151 of the Code of Civil Procedure, 1908 (henceforth referred to as 'CPC') to treat issue No.6 as a preliminary issue. This application wa