- 1 - NC: 2025:KHC-D:6444 WP No. 103508 of 2021 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 15TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM WRIT PETITION NO. 103508 OF 2021 (GM-CPC) BETWEEN: 1. SHRI. CHANDRAKANTH S/O. CHIDANAND MARA AGE: 74 YEARS, OCC: BUSINESS, R/O. MANAVALLIPETH, WARD NO.6, ILKAL, TQ: HUNGUND, DIST: BAGALKOT-587118. 2. SHRI. SHANKARAPPA S/O SANNA- HANAMANTAPPA, MARA, AGE: 58 YEARS, OCC: BUSINESS, R/O MANAVALLIPETH, WARD NO. 6, ILKAL, TQ: HUNGUND, DIST: BAGALKOT-587118. …PETITIONERS (BY SRI. S.B.HEBBALLI, ADVOCATE) AND: 1. SMT. SHARAWWA @ SHARADA @ SHARADAMMA W/O. DEVENDRAPPA MAGENAHALLI, AGE: 51 YEARS, OCC: HOUSEHOLD, 17 CROSS, BEHIND DANGE PARK, KTJ NAGAR, DAVANAGERE, DIST: DAVANAGERE-577001. 2. SMT. SHANTABAI W/O. CHIDANAND MARA SINCE DECEASED BY HER LR’s. PETITIONER NO.1 AND R4 TO R7 ARE TREATED AS LR’s OF R2. 3. SMT. PADMA W/O. VENKATESH DABBI, AGE: 53 YEARS, OCC: HOUSEHOLD WORK, R/O MANJUNATH POWERLOOMS, BHAGYANAGAR, KOPPAL TA: KOPPAL DIST: KOPPAL-583231. Digitally signed by MOHANKUMAR B SHELAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.04.23 14:17:52 +0530 - 2 - NC: 2025:KHC-D:6444 WP No. 103508 of 2021 4. SMT. GEETA D/O. CHIDANAND MARA, AGE: 51 YEARS, OCC: SERVICE, R/O RAGUMANAHALLI, KANAKAPUR ROAD, BENGALURU-560062. 5. SHREENIVAS S/O. CHIDANAND MARA, AGE: 49 YEAS, OCC: ENGINEER, R/O. MANAVALLIPETE, WARD NO. 6, ILKAL TQ: HUNGUND, DIST: BAGALKOT-587118. 6. SHRI. VENKATESH S/O. CHIDANAND MARA, AGE: 48 YEARS, OCC: SERVICE, R/O HOUSE NO. 428, 14TH MAIN, 3RD STAGE, 1ST BLOCK, MANJUNATHNAGR, BENGALURU-10. 7. SMT. SAROJA W/O. SOMASHEKHAR MARA, AGE: 43 YEARS, OCC: TEACHER, R/O MANAVALLIPETE, WARD NO.6, ILKAL, TQ: HUNGUND, DIST: BAGALKOT-587118. 8. NARAYANAPPA S/O. SANNAHANAMANTAPPA MARA, AGE: 65 YEARS, OCC: SILK SAREE BUSINESS, R/O C/O B.M. S. GUPTA M.M.T.C. COLONY, J.P. NAGAR, 2ND CROSS, HOSPETE, DIST: BELLARI-583102. 9. SHRI. SHANKRAPPA S/O. SANNAHANMANTAPPA MARA, AGE: 63 YEARS, OCC: SILK SAREE BUSINESS, R/O MANAVALLIPETE, WARD NO.6, ILKAL, TQ: HUNGUND, DIST: BAGALKOT-587118. 10. PUNDALIKAPPA S/O. SANNAHANMANTAPPA MARA, AGE: 63 YEARS, OCC: SILK SAREE BUSINESS, R/O. MANAVALLIPETE, WARD NO.6, ILKAL, TQ: HUNGUND, DIST: BAGALKOT-587118. - 3 - NC: 2025:KHC-D:6444 WP No. 103508 of 2021 11. NAGAWWA W/O. HANAMANTAPPA KATAPUR, AGE: 77 YEARS, OCC: HOUSEHOLD, R/O. NEAR OIL MILL, KORAVAR ONI, ILKAR, TQ: HUNGUND, DIST: BAGALKOT-587118. 12. SHIDRAMAPPA S/O. HANAMANTAPPA ARER, AGE: 57 YEARS, OCC: AGRICULTURE, R/O. GUGGALAMARI, TQ: HUNGUND, DIST: BAGALKOT-587119. 13. MAHADEVI W/O. BASAVANTAPPA @ BASANNA ARER, AGE: 50 YEARS, OCC: HOUSEHOLD WORK, R/O. GUGGALAMARI, TQ: HUNGUND, DIST: BAGALKOT-587119. 14. BAGAMMA W/O. CHANDRAPPA ARER, AGE: 30 YEARS, OCC: HOUSEHOLD WORK, R/O. GUGGALAMARI, TQ: HUNGUND, DIST: BAGALKOT-587119. 15. RAJAMMA W/O. KANAKARAY ARER OCC: 28 YEARS, OCC: HOUSEHOLD WORK, R/O. GUGGALAMARI, TQ: HUNGUND, DIST: BAGALKOT-587119. 16. SHANTAVVA W/O. HANAMANTAPPA NIKAM, AGE: MAJOR, OCC: HOUSEHOLD WORK, R/O GUGGALAMARI, TQ: HUNGUND, DIST: BAGALKOT-587119. 17. MANJIUNATH S/O. BAVANTAPPA @ BASANNA ARER, OCC: MAJOR, OCC: AGRICULTURE, R/O. GUGGALAMARI, TQ: HUNGUND, DIST: BAGALKOT-587119. 18. SHIVAJI S/O. BASAVANTAPPA @ BASANNA ARER, AGE: MAJOR, OCC: AGRICULTURE, R/O. GUGGALAMARI, TQ: HUNGUND, DIST: BAGALKOT-587119. - 4 - NC: 2025:KHC-D:6444 WP No. 103508 of 2021 19. GANESH S/O. BASAVANTAPPA @ BASANNA ARER, AGE: MAJOR, OCC: AGRICULTURE, R/O. GUGGALAMARI, TQ: HUNGUND, DIST: BAGALKOT-587119. 20. KAVITA W/O. KALINGAPPA SALANKI AGE: MAJOR, OCC: AGRICULTURE, R/O. GUGGALAMARI, TQ: HUNGUND, DIST: BAGALKOT-587119. 21. RAMANAND RAMADEEN KARWA AGE: 61 YEARS, OCC: BUSINESS, R/O. MANAVALLIPET, WARD NO. 6, ILKAL, TQ: HUNGUND, DIST: BAGALKOT. 22. SHANKARASA S/O. UMMANASA BASOODE, AGE: 61 YEARS, OCC: BUSIENSS, R/O. MANAVALLIPET, WARD NO. 6, ILKAL, TQ: HUNGUND, DIST: BAGALKOT-587118. …RESPONDENTS (BY SRI. PRAKASH HOSAMANE, ADVOCATE FOR R1; PETITIONER NO.1 AND R4 TO R7 ARE LR’s OF DECEASED R2 VIDE ORDER DATED 11.02.2025; NOTICE TO R3, R6, R7 TO R22 ARE SERVED; NOTICE TO R4 DISPENSED WITH VIDE ORDER DATED 05.03.2025; NOTICE TO R5 AND R8 ARE DISPENSED WITH VIDE ORDER DATED 11.02.2025) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI QUASHING THE IMPUGNED ORDER DATED 08.06.2021 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC, HUNGUND IN O.S.NO.101/2015 ON PRELIMINARY ISSUE AS PER ANNEXURE-J AND ETC. - 5 - NC: 2025:KHC-D:6444 WP No. 103508 of 2021 THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM ORAL ORDER The captioned writ petition is filed by defendant Nos.1B and 3 assailing the order of the trial court in accepting the court fee payable under Section 35(2) of the Karnataka Court Fees and Suits Valuation Act, 1958 (hereinafter referred to as ‘the Act’ for short). 2. Respondents/plaintiffs who are the sisters of the present petitioners/defendants have filed a suit for partition and separate possession in O.S.No.101/2015 asserting that suit schedule properties are joint family ancestral properties and they constitute undivided joint Hindu family along with the petitioners herein. An objection was raised by the defendants regarding valuation and payment of court fee by the plaintiffs. The said additional issue No.1 was treated as preliminary issue and the trial court having examined the pleadings of the plaintiffs and the defendants was of the view that the - 6 - NC: 2025:KHC-D:6444 WP No. 103508 of 2021 valuation submitted by the plaintiffs under Section 35(2) of the Act is correct and proper. The contention of the defendants that the plaintiffs are not in possession of schedule-C properties was not acceded to by the trial court. 3. The primary grievance of the defendants that only agricultural lands were subjected to valuation while schedule-C properties were not subjected to valuation. Though initially was accepted by the learned Judge, however, having noticed that the plaintiffs have paid maximum court fee of Rs.200/-, the learned Judge has accepted the valuation and directed the plaintiffs to file fresh valuation slip by including schedule-C properties also. 4. The contention raised by the defendants that the plaintiffs are not in possession of the Schedule-C properties, and therefore must submit a fresh valuation and pay court fees in accordance with Section 35(1) of the Karnataka Court Fees and Suits Valuation Act, is wholly - 7 - NC: 2025:KHC-D:6444 WP No. 103508 of 2021 misconceived and untenable. A meticulous examination of the defendants’ pleadings, particularly paragraphs 8 to 10 of the written statement, clearly reveals that the defendants themselves claim possession of the Schedule-C properties through a document titled “Kutumba Vyavastha Patra” (Family Arrangement Deed). Specifically, in paragraph 10, the defendants assert that the property bearing CTS No.3005/C has fallen to the share of defendant No.5 under this family arrangement. A cumulative reading of paragraphs 8 to 10 indicates that the defendants are not merely denying the plaintiffs’ possession, but are instead asserting their own possession pursuant to the said family arrangement. Such assertions by the defendants give rise to a triable issue regarding possession, which is not a question to be adjudicated at this preliminary stage. Whether the defendants are in exclusive possession, and whether such possession amounts to ouster of the plaintiffs, are factual matters that can only be conclusively determined during a full- - 8 - NC: 2025:KHC-D:6444 WP No. 103508 of 2021 fledged trial, based on the evidence adduced by both parties. 5. In the present case, the plaintiffs have specifically pleaded that they are in joint possession and enjoyment of the suit schedule properties. Once such an averment is made in the plaint, and in the absence of any unambiguous admission by the plaintiffs that they have been dispossessed or ousted from the suit properties, the provisions of Section 35(1) of the Act do not come into operation. It is a settled principle that the obligation to pay court fees under Section 35(1) arises only when the plaintiff admits that he or she is not in possession of the properties and seeks separate possession by way of partition. In the absence of such an admission, and in the face of contested claims, the court cannot compel the plaintiffs to submit a fresh valuation or to pay court fees as though they are out of possession. In the present matter, it is pertinent to note that the plaintiffs, who are sisters, have filed a partition suit which has been pending - 9 - NC: 2025:KHC-D:6444 WP No. 103508 of 2021 since 2015, and trial has not yet commenced. At this stage, the court finds no justification to allow the defendants' plea, as doing so would result in conferring an undue advantage upon the defendants, who are brothers contesting the partition claim. It is also relevant to note that unless the defendants are able to substantiate a clear and unequivocal plea of ouster, the plaintiffs cannot be compelled to pay additional court fees or revalue the suit under Section 35(1) of the Act. Once it is prima facie established that there exists a joint family nucleus, a legal presumption arises that the family is joint, although there is no corresponding presumption that all properties held by the family are necessarily ancestral or joint family properties. Such issues can only be conclusively adjudicated upon appreciation of evidence during trial. 6. The finding on preliminary issue however will not come in the way of the defendants in substantiating the plea of ouster during trial and that issue is already addressed by the trial court in the course of its order. - 10 - NC: 2025:KHC-D:6444 WP No. 103508 of 2021 7. In that view of the matter, the order under challenge does not warrant any interference at the hands of this court. Accordingly, the writ petition is dismissed. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE MBS Ct:vh List No.: 1 Sl No.: 23