MANIPAL ACADEMY OF HIGHER EDUCATION Vs. K. JAYAVANTHA BHAKTA

JUDGEMENT

(1.) THE petitioner is the 7th defendant in O.S. No. 143/1996 on the file of the Principal Civil Judge (Sr.Dn.), Udupi, being aggrieved by the order dated 21.05.2012 made on the preliminary issue No. 5 filed this writ petition.

(2.) THE respondents 1 to 3 herein filed O.S. No. 143/196 seeking for partition and separate possession of 3/8th share in plaint 'A schedule property and also for other reliefs. In the plaint it was contended that the suit schedule property is the ancestral property of Kalasanka Manjunath Bhakta. Plaintiffs and defendants 1 to 5 are the children of the said Kalasanka Manjunath Bhakta. They are entitled for their share in the joint family properties. The plaintiffs had paid the court fees under Section 35(2) read with Section 21 of the Karnataka Court fees and Suit Valuation Act, 1958 (for short herein after referred to as "Act"). The 7th defendant/respondent raised an objection regarding payment of the court fees contending that the 7th respondent is in possession of the property. The plaintiffs are not in possession and hence the court fees has to be paid under Section 35(1) of the Act and the court fees as paid by the plaintiffs is not in accordance with law. In view of the said contention, the trial court raised the issue No. 5 i.e., with regard to the court fees as a preliminary issue. After considering the arguments of the parties, the trial court found that the court fees paid on the plaint is in accordance with law and held that in a suit for partition, both the plaintiffs and defendants are in possession of the property and are in joint possession of the property, the court fees has to be paid under Section 35(2) and answered the preliminary issue in favour of the plaintiffs. Being aggrieved by the order made on preliminary issue No. 5, the 7th defendant has preferred this writ petition.

(3.) ON the other hand, the learned advocate, Sri. B.V. Krisha, appearing for the respondents argued in support of the order of the trial court and contended that the suit filed by the plaintiffs seeking for partition and separate possession is in respect of ancestral property of the joint family and family members are in joint possession of the properties. The court fees has been paid under Section 35(2) of the Act it is in accordance with law and sought for dismissal of the writ petition.