L. PURUSHOTTAMA S/O LATE LAKSHMINARAYANA BHAT Vs. SRI. S. GANESH HEGADE S/O SRI S.G. HEGADE AND SMT GEETHA GANESH W/O SRI GANESH HEGADE

JUDGEMENT

(1.) PLAINTIFF in O.S.818/09 aggrieved by the order dt. 15/2/2010 of the VIII Addl. City Civil Judge, Bangalore, framing an additional issue casting the burden on the plain tiff to establish his title to the suit schedule property and directing valuation of the plaint under Section 26(a) of the Karnataka Court Fee and Suits Valuation Act, 1958, for short Act. has presented this petition.

(2.) INDISPUTABLY the suit instituted by the Petitioner is for permanent injunction restraining the Defendant/Respondent herein from interfering with the Plaintiff's peaceful possession and enjoyment of the suit schedule property. Now here in the plaint averments, the Plaintiff alleged that the Defendant denied Plaintiffs title to the property. In that view of the matter, the valuation of the suit for the purpose of court fees was in accordance with Section 26(c) of the Act. Section 26(a) of the Act would have application only if the Plaintiff alleged in the plaint that his title to the immovable property which is the subject matter of the suit is denied by the Defendant or whether there is such an allegation or not, an issue is framed concerning the Plaintiff's title to the property. When there is no allegation of denial of title or issue raised, the residuary Clause (c) becomes applicable. This is the law laid down by this Court in Anantha Samantha v. K. Balakrishna Rao 1968(1) Mys. L. J. 309.

(3.) NOT only the procedure followed by the court below is perverse, so also the order framing an additional issue as well as directing the valuation of the suit in accordance with Section 26(a) of the Act, is illegal and unsustainable.