B S MALLESHAPPA Vs. KORATAGIGERE B SHIVALINGAPPA

JUDGEMENT

(1.) THE appellant herein filed a suit for partition and separate possession of one-fifth share in the plaint schedule properties and consequential reliefs in O. S. No. 41 of 1992, on the file of the Civil Judge, Bhadravati. The plaintiff valued the suit for partition for the purpose of jurisdiction as RS. 15 lakhs and valued of his one-fifth share as RS. 3 lakhs. Plaintiff claimed that he was in joint possession of the suit properties, and paid a fixed Court-fee of Rs. 200/- under S. 35 (2) of the Karnataka Court-Fees and Suits Valuation Act, 1960 (for short, the Act ). He also paid additional Court-fee of RS. 100. 00 in regard to the consequential relief of permanent injunction under S. 26 (c) of the Act. In para 9 of the plaint, the plaintiff averred thus :

(2.) THE defendants resisted the said suit inter alia, contending that the properties described in 'b' to 'e' schedules were not joint family properties and the plaintiff had separated from the family in the year 1974 by taking 'a' schedule properties to his share and that the properties described in 'b' to 'e' schedule were the self-acquired properties of the first defendant. They also contended that the suit was not properly valued and the Court-fee paid was insufficient.

(3.) AFTER trial, the trial Court held that the properties described in 'b' to 'e' schedule were the self-acquired properties of first defendant and were not joint family properties and that the plaintiff had separated from the family in the year 1974 by taking 'a' schedule properties to his share. The trial Court also held that the Court-fee paid was not proper. The Court below held that as Kantthe plaintiff had valued the share at Rs. Three lakhs, he was liable to pay the ad valorem Court-fee on Rs. Three lakhs under S. 35 (1) of the Act. The trial Court held that the plaintiff was in exclusive possession of 'a' schedule properties and he was not in either constructive or joint possession of 'b' to 'e' schedule properties. Consequently the trial Court dismissed the suit with costs, by Judgment and decree dated 26-3-1994, with the following directions regarding Court-fee :the plaintiff is hereby directed to pay Court-fee under S. 35 (1) of the Karnataka Court-Fees and Suits Valuation Act as amended, over his alleged 1/5th share namely on Rs. 3,00,000 less Rs. 200, Court-fee already paid, within two weeks from today and falling which the suit is also deemed to be automatically dismissed or plaint is rejected for non-compliance. "as the plaintiff did not pay the Court-fee under S. 35 (1) of the Act, as directed by the trial Court, the suit was also dismissed on the ground of non-compliance of Court order to pay deficit Court-fee under S. 35 (1) of the Act.