IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF MAY, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S. DIXIT W.P.No.45464/2014 (GM-CPC) BETWEEN:
FATHER FRANCIS JOSEPH KALAMABA KATE AGED ABOUT 62 YEARS AGRICULTURIST R/O III CROSS, DURGIGUDI AREA, HONNALLI TOWN – 577 127.
(BY SMT. RAKSHITHA K.N., ADVOCATE FOR SRI. K. RAGHAVENDRA RAO, ADVOCATE) AND:
1. MANJAPPA S/O BHAGAPPA HINDU AGED ABOUT 54 YEARS COOLIE, R/O SARVAR KERI HONNALI TOWN – 577 127.
2. JAYAPPA S/O BHAGAPPA HINDU AGED ABOUT 69 YEARS.
3. DHANANJAYA S/O RAYAPPA HINDU AGED ABOUT 42 YEARS.
4. RAYAPPA S/O RAYAPPA HINDU ... PETITIONER AGED ABOUT 36 YEARS.
5. VIJAYA S/O RAYAPPA HINDU AGED ABOUT 34 YEARS.
6. SMT. LUGUMAMMA DEAD BY LRS SMT. BHAGYAMMA W/O GALAYAPPA MAJOR R/O KAVALGAUNDHI VILLAGE BHADRAVATHI – 577 127.
ALL ARE AGRICULTURES, 2 TO 6 R/O SARVAR KERI HONNALI TOWN – 577 127.
(BY NOTICE TO R-2 TO R-6 IS DISPENSED WITH V/O DATED:09.10.2014; NOTICE TO R-1 V/O DATED:15.07.2016) ... RESPONDENTS THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYNG TO QUASH THE IMPUGNED ORDER DATED 23.07.2014 PASSED BY THE LEARNED CIVIL JUDGE, JR.DN. AND JMFC HONNALLI IN O.S.NO.101/2005 ON ADDITIONAL ISSUE NO.1 VIDE ANN-E.
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The defendant in O.S.No.101/2005 in which a decree for declaration of a particular conveyance being void and for other reliefs has invoked the writ jurisdiction of this Court for invalidating the order dated 23.07.2014 made by the learned Trial Judge answering the additional issue No.1 about the valuation of the subject suit in the negative. After service of notice, the respondents/plaintiffs have chosen to remain unrepresented.
2. The learned counsel for the petitioner vehemently contends that the reasoning of the Court below as reflected in para 18 of the impugned order is prima facie flawsome inasmuch as the prayer for declaration of a particular sale deed as being null and void is nothing but a prayer for it’s cancellation. She places reliance on a decision of a Co-ordinate Bench of this Court in the case of Smt.Muniyamma Vs.Chinnayya, 2010 (5) KCCR 3492 in support of her contention.
3. I have heard the learned counsel for the petitioner and I have perused the Petition Papers. I have also adverted Ruling cited at the Bar.
4. The plaint copy at Annexure-A, at it’s paragraph 10 thereof is extracted as under:-
“10. RELIEFS SOUGHT FOR: xxx (a) xxx (b) That the defendants 1 to 4 have no right to sell any portion of the suit schedule property and any such sale is void and not binding and defendant No.6 does not got any title”.
In the aforesaid ruling at paragraph 17, the co-ordinate judge of this Court has observed as under:-
“17. In the valuation slip dated 15/19- 11/2001 filed by the plaintiff, suit has been valued under Section 24(a) of the Karnataka Court Fees and Suit Valuation Act, for declaration and possession and the declaratory relief that is sought for by the plaintiff is to declare that sale deed dated 24.12.1989 is null and void. The natural corollary would be that plaintiff ought to have paid the Court fee in respect of the consideration depicted in the sale deed irrespective of the extent of claim made qua property stated in the sale deed, inasmuch as the suit schedule property has not been divided and it is undivided share comprised in the property described in the sale deed dated 24.12.1989. The Court below on considering this fact noticed that prayer made in the plaint is for the relief of declaration to declare the plaintiff as the absolute owner of the suit schedule property by declaring the sale deed dated 24.12.1989 registered as document No.7098 as null and void. In the instant case, plaintiff has sought for declaration of the sale deed in its entirety and consequently has sought for declaring the said sale deed would not be binding in respect of the plaintiffs rights over the suit schedule property, which is to an extent of 04 guntas. A sale deed cannot be declared as null and void in a piece meal that to the extent of suit schedule property only. The one and only course left open to the Court adjudicating the said issue is to declare either that the sale deed is null and void as a whole or otherwise and not in bits and pieces as contended by the plaintiff”.
5. The prayer for declaring a document as null and void is nothing but a prayer for cancellation of said document, subject to just exceptions, atleast for the purpose of suit valuation qua pecuniary jurisdiction and for the payment of Court fee, as rightly submitted by learned counsel for the petitioner/defendant. This view is supported by the aforesaid observation of the Co-ordinate judge; this having not been adverted to in the proper prospective in the impugned order, the same is liable to be set at naught and matter merits re-consideration at the hands of the trial judge, afresh.
In the above circumstances, this Writ Petition succeeds; the impugned order is set aside; the matter is remitted to the Court below for consideration afresh, within a period of eight weeks.
Since the suit is of the year 2005, the trial judge is requested to conduct the trial and dispose off the same as expeditiously as possible within an outer limit of one year and to file a compliance report thereof before the Registrar General of this Court forthwith.
Costs made easy.
SD/- JUDGE RU