IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR WRIT PETITION No.57683 OF 2014 (GM-CPC) BETWEEN Smt. Susheelamma, D/o. B.Munivenkatappa, Aged about 56 year, Residing at No.52/4, 4th Cross, 3rd Main, Gopalappa Layout, Lakkasandra, Bengaluru-560030.
(By Sri. S.Visweswaraiah, Advocate) AND 1. Sri. Krishnappa, S/o. Late Nanjundachari, Aged about 71 years, R/at. Yanadahalli, Huttur Hobli, Kolar Taluk and District-563101.
2. Sri. Krishnappa, S/o. Nanjundachari, Aged about 72 years, Residing at No.314, 4th Main, Rajagopalnagar, Laggere, Bengaluru-560038.
(By Sri. Umesh B.N., Advocate for R1 …Petitioner …Respondents Notice to R2 dispensed vide order dated 08.06.2016) This Writ Petition is filed under articles 226 & 227 of the Constitution of India, praying to quash the order passed by the Hon’ble I Additional Senior Civil Judge, Kolar dated 09.12.2014 in O.S.No.164/2006 ‘On Additional issues framed on 04.12.2013’ vide annexure-H by allowing the writ petition.
This Writ Petition coming on for preliminary hearing in ‘B’ group, this day, the Court made the following :
ORDER Heard the petitioner’s counsel and the respondents’ counsel. The petitioner has challenged the order dated 09.12.2014 passed by the I Addl. Senior Civil Judge, Kolar in O.S.No.164/2006. The trial court by the impugned order has held that the court fee paid by the plaintiff is sufficient.
2. The learned counsel for the petitioner argues that in the light of the relief sought for by the plaintiff in the suit, the plaintiff should have valued the subject matter of the suit according Section 38 of the Karnataka Court Fees and Suits Valuation Act and paid the court fee on the market value of the property. Here in this case the plaintiff has valued the suit according to Section 24(b) of the Karnataka Court Fees and Suits Valuation Act and paid court fee of Rs.250/-. The trial court should not have held that the suit is properly valued and court fee paid is sufficient.
3. The learned counsel for the respondent/plaintiff submits that the plaintiff was not a party to the sale deed which is sought to be cancelled. Subject matter is agricultural land. Therefore Section 7 of the Karnataka Court Fees and Suits Valuation Act governs Section 24 and 38 of the Karnataka Court Fees and Suits Valuation Act.
There is no need to pay court fee on the market value of the property and therefore impugned order does not suffer from any illegality.
4. The property described in plaint schedule is land in Sy.No.8, (New.No.8/P2,) of Kaparasiddanahalli, Vokkaleri Hobli, Kolar Taluk. The suit is for declaration of title and cancellation of the sale deed. Admittedly the plaintiff is not the party to the sale deed dated 05.07.2005. The plaintiff’s case is that 2nd defendant executed the sale deed in favour of the 1st defendant in respect of the plaint schedule property which actually belongs to him. In this view of the matter it was enough if plaintiff had sought a declaration that the sale deed dated 07.07.2005 did not bind him, instead he has used the word ‘cancellation’. Cancellation of an instrument has to be sought by a person who is a party to the instrument. A person who is not a party to the instrument need not seek cancellation, declaratory relief is enough. Here in this case though the word cancellation is used, the actual relief that the court can grant amounts to declaration. In this light Section 38 of the Karnataka Court Fees and Suits Valuation Act does not come into picture. Even if it is assumed that Section 38 is applicable, it is governed by Section 7 of Karnataka Court Fees and Suits Valuation Act because the suit property is an agricultural land. Suit can be valued on the basis of the land revenue. Taking all these aspects into consideration if the trial court has held that the court fee paid is sufficient, I do not think there is any infirmity in the order. Writ petition is dismissed.
Sd/- JUDGE sd