G BARAMAPPA Vs. KENCHAPPA

JUDGEMENT

(1.) THIS Writ Petition is directed against the order passed by the Trial Court in O. S. No. 74/2002 dated 21-1-2003 on the file of Civil Judge, Sr. Divn. , Kudligi.

(2.) THE petitioner filed a suit for the relief of partition and separate possession of the suit schedule properties. In the said suit, the defendants /respondents filed their objections regarding payment of Court-Fees and the relief sought for by the petitioner. The Trial court held the said issue as a preliminary issue and passed the impunged order holding that the petitioner is liable to pay the Court-Fee on the market value as claimed by him to an extent of his share of Rs. 21,000/- under S. 35 (1) of the Karnataka Court-Fees and Suits Valuation Act. Assailing the said order on preliminary issue passed by the Trial Court in O. S. No. 74/2002 dated 21-1-2003, the petitioner presented this writ petition.

(3.) THE main ground canvassed by the learned counsel appearing for the petitioner is that the impugned order passed by the court below is contrary to the relevant provisions of the Karnataka Court-Fees and Suits Valuation Act. The petitioner is liable to pay the court-fees as provided under S. 35 (ii) of the Karnataka Court-Fees and Suits Valuation Act and not under S. 35 (i) of the said Act. Further, he submitted that it is crystal clear in the plaint presented by the petitioner that he is claiming a share in the joint family property. Therefore, he is not liable to pay the Court-Fees under S. 35 (i) of the Karnataka Court-Fees and Suits Valuation Act. To substantiate his case, he placed reliance on the judgment of this court in the case of Ningappa Karabasappa Shivanagutti v. Amarappa Karabasappa Shivanagutti reported in (1991)2 Kant LJ 373 wherein this Court has held that in a suit for partition and separate possession by a co-sharer notwithstanding the plaintiff not in possession whether the Court-Fees payable is under S. 35 (ii) or S. 35 (i) of the Court-Fees and Suits Valuation Act, 1958. In view of the law laid down by this court in the said case, the petitioner is not liable to pay the Court-Fees as provided under S. 35 (i) of the Karnataka court fees and suits valuation Act.