T K SRINIVASAMURTHY Vs. T SEETHARAMAIAH

JUDGEMENT

(1.) This appeal is directed against the judgment and decree dated 5-10-1985 in O.S. No.27 of 1984 on the file of the learned Civil Judge, Chickmagalur. The order-udgment and decree is made under order VII, rule 11(b) of the code of civil procedure for non-compliance with direction of the court on issue No.1 framed in the suit. A revision was preferred against the finding recorded on that issue No.1, which was tried as preliminary issue, under section 115 of the Code of Civil Procedure in C.R.P. No.1 139 of 1986 on the file of this Court. On 19-3-1986, this Court admitted the Revision Petition and directed emergent notice and also directed Stay of further proceedings. Even before the Revision Petition was admitted and interim stay granted, the plaint had been rejected as earlier narrated. In the result this Court in C.R.P. made an order on 13-7-1987 directing the Revision Petition to be posted along with Regular first Appeal No.702 of 1986, which had since been filed in this Court and with which we are now seized.

(2.) The facts in the case may be briefly stated and they are as follows: Plaintiffs numbering 11 filed O.S. 27 of 1984 seeking partition of suit schedule properties as well as for a declaration that certain alienations made by the defendants in respect of joint family properties are not binding on them. In such circumstances, the suit was valued by the plaintiffs under Section (35)2 of the Karnataka Court fees and Suits Valuation Act (in short 'the Act') in respect of suit schedule item No. 1 property and in regard to suit schedule item No.2, it was valued under Section 7(2)(d) of the Act and court fee paid accordingly. Defendants while resisting the suit inter alia contended that plaintiffs not being in possession of suit scnedule item No.l since 1946, did not value the same in terms of sub-section (1) of Section 35 of the Act, but the same should have been valued under Section35 (1) as they were out of possession of property in question. It was in the light of that defence taken, the first issue was framed, as follows:- "Whether the suit is properly valued for purpose of Court fee and jurisdiction ?'' As facts were not in dispute, arguments were heard on that issue and Court came to the conclusion that while the plaintiffs had valued properly the suit in regard to suit items 1 and 3, nevertheless came to the conclusion that as they were out of possession of suit schedule item No. 1, the joint family residential house, they ought to have valued under sub-section (1) of Section 35 of the Act and therefore, fixed the value at Rs.1,00,000/- as the value of suit item No.3 movables and item No.l at Rs.4,00,000/- the total value of items 1 and 3 to be Rs.5,00,000/-. Therefore, the 1/5th share claimed by the plaintiffs was valued at Rs.1,00,000/ for the purpose of court fee and direction was issued to pay the deficit court fee. That having not been paid, in the circumstances statd earlier, the plaint came to be rejected. These facts are not in dispute.

(3.) The learned Counsel for the plaintiffs as well as defendants have been heard. What falls for determination by us is whether the loss of possession by plaintiffs not being in occupation of the premises suit schedule item No.l since 1946 and not being in possession of movables which were certainly with the defendants, made it necessary for the plaintiffs to value the suit under sub-section (l)of Section 35 as a suit for possession for immovable of movable property? It was disputed by the defendants that all items in suit schedule properties were joint family properties. Whether they were or they wer not, were questions which had to be decided in the suit on the pleadings and evidence. The trial Court came to the conclusion that since none of the plaintiffs had possession of suit items 1 and 3, they should seek relief for possession and thereby the trial Court ignored the well recognised principle that possession of properties movable or immovable by one of the owners, whether it be as a member of the undivided joint Hindu family or a joint family or as tenants in common, such possession is possession of all the sharers.