HC-KAR NC: 2026:KHC:7386 WP No. 14241 of 2022 - 1 - IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF FEBRUARY, 2026 BEFORE THE HON'BLE MS. JUSTICE TARA VITASTA GANJU WRIT PETITION NO. 14241 OF 2022 (GM-CPC) BETWEEN: M.S.NAGENDRA S/O SRI. M.N.SRINIVAS, AGED ABOUT 32 YEARS, R/A NO.19, ‘GAVIRANGANATHASWAMY NILAYA’, 7TH MAIN ROAD, NANJAPPA GARDEN, MALLATHAHALLI VILLAGE, YESHWANTHPURA HOBLI, BANGALORE NORTH TALUK, BANGALORE-560 056. …PETITIONER (BY SRI. C.M.NAGABHUSHAN., ADVOCATE) AND: 1. SMT. K.POOJA D/O M.N.VIJAYAKUMAR @ M.N.KUMAR, W/O SRI. M.THIMMEGOWDA, AGED ABOUT 31 YEARS, R/A NO.103/7B, 5TH CROSS, NGEF LAYOUT, MALLATHAHALLI, BANGALORE-560 056. 2. M.N.VIJAYAKUMAR @ M.N.KUMAR AGED ABOUT 60 YEARS, S/O LATE NANJAPPA, R/A NO.140, NEAR MALLATHALLI BUS STOP, MALLATHAHALLI, BANGALORE-560 056. …RESPONDENTS (BY SRI. RATHAN.S., ADVOCATE FOR R1) HC-KAR NC: 2026:KHC:7386 WP No. 14241 of 2022 - 2 - THIS W.P. FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE IMPUGNED ORDER DTD.30.6.2022 PASSED IN O.S.NO.6794/2018 ON IA NO.3 BY THE XI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE BANGALORE CCH-8 AT ANNEXURE-F. THIS PETITION, COMING ON FOR HEARING- INTERLOCUTORY APPLICATION , THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MS. JUSTICE TARA VITASTA GANJU ORAL ORDER 1. I.A.1/2026 is filed seeking condonation of delay of 762 days in filing the L.R. application, I.A.No.2/2026 is filed for setting aside abatement and I.A.No.3/2026 is filed to bring the LRs of deceased Respondent No.2 on record. The learned counsel for Respondent No.1 submits that after the death of Respondent No.2 he is representing all legal representatives of Respondent No.2 including Respondent No.1 before the learned Trial Court. This contention is affirmed by the learned counsel for the petitioner. He thus submits that he would represent the respondents before this Court as well. 2. Learned counsel for the respondents on instructions further submits that he has no objection if the prayers in these HC-KAR NC: 2026:KHC:7386 WP No. 14241 of 2022 - 3 - applications I.A.1/2026, I.A.2/2026 and I.A.3/2026 are granted by this court. 3. In view of no objection from the learned counsel for respondents, the legal representatives of deceased Respondent No.2 are brought on record. Accordingly, I.A.1/2026, I.A.2/2026 and I.A.3/2026 are allowed. 4. The present petition seeks to challenge an order dated 30.06.2022 passed in O.S.No.6794/2018 on IA No.3 by the XI Additional City Civil and Sessions Judge Bangalore (hereinafter referred as ‘Impugned Order’). By the Impugned Order the application I.A.No.3 filed by Respondent No.1 under Order 7 Rule 11 (b) read with Section 151 of CPC, 1908 has been partly allowed. The learned Trial Court also has passed a direction for the petitioner/plaintiff to pay court fee in terms of Sec.24(b) of Karnataka Court Fees & Suits Valuation Act, 1958 as per the prevailing market rate. 5. The learned counsel for the petitioner submits that the relief of declaration is in respect of the suit ‘C’ schedule HC-KAR NC: 2026:KHC:7386 WP No. 14241 of 2022 - 4 - property which is a grave yard as the grand parents of the plaintiffs were buried there. 6. Learned counsel for the petitioners/plaintiffs submits that he has title to this property by virtue of a registered partition deed. 7. Learned counsel for the respondents on the other hand contends that the suit schedule ‘C’ property was gifted by Respondent No.2 in favour of his daughter Respondent No.1. He further submits that there is no grave yard at the property in existence. He seeks to rely on paras 18 and 23 of his written statement in this behalf which are extracted below: “18. It is submitted that, the defendant No.2 have executed gift deed in favor of his daughter defendant No.1 with consent witness and confirmation of children's and grand children's of late Lakshmamma and Nanjappa. Who have duly signed for the witness in the gift deed, if there was a Gravy yard in the suit schedule property as alleged by the plaintiff. Children's of the late Lakshmamma and Nanjappa would have raised objections. This clearly shows the intention of the plaintiff is to cheat and mislead the defendants to acquire the suit schedule property. xx xx xx 23. It is submitted that, the defendant No.1 is in peaceful possession of the suit schedule property till-date. There is no such existence of the gravy yard of late Nanjappa and Lakshmamma in the suit schedule property”. HC-KAR NC: 2026:KHC:7386 WP No. 14241 of 2022 - 5 - 9. An examination of the plaint shows that the petitioner/plaintiff is not asserting title to the suit schedule ‘C’ property but only seeking a declaration to declare the property as a graveyard. 9.1 The description of the suit schedule ‘C’ property as set out in the plaint is below: “SCHEDULE 'C' PROPERTY All that piece and parcel of property bearing No. 9 then No.11/2/9 which is carved out of Sy. No. 11 then New No. 11/2 within the limit of Bruhath Bangalore Mahanagara Palike (Gnanabharathi) ward No. 129 which is Mallathahalli Village and also come under the jurisdiction of situated at Raja Rajeshwari Nagarasabe, Yeshwanthapur Hobli, Bangalore North, measuring East to West 33 feet & North to South 40 feet in all measuring 1320 square feet. which is bounded on East by : Sri Krishna's property West by : Road North by : Road South by : remaining portion property bearing No.9” 10. The Impugned Order has however given a finding that since the petitioner/plaintiff has sought this declaration, the petitioner/plaintiff claims exclusive rights over the properties. The relevant extract of the Impugned Order is below: HC-KAR NC: 2026:KHC:7386 WP No. 14241 of 2022 - 6 - “14. Keeping in mind the law laid down in the above cited decisions, I have gone through the pleadings of the parties, reliefs sought in the suit and contentions taken by both the plaintiff and defendants. In this suit the plaintiff has paid court fee of Rs.50/- for the relief of declaration and Rs.25/- with respect to the relief of injunction and in all, paid court fee of Rs.75/-. The suit property is not an agricultural land, which is situated within the limits of BBMP. Looking to the plaint averments it is clear that, with respect to the second relief that the Registered Gift Deed dated 10.08.2017 executed by defendant No.2 in favour of defendant No.1 is not binding on the plaintiff, he need not to pay the court fee on the market value of the property, since he was not a party to the said Deed. As such the law laid down in the case of Suhrid Singh @ Sardool Singh cited above is squarely applicable to the second relief. 15. However, other relief claimed in this suit is to declare that the suit "C" schedule property as a grave yard as grand parents of the plaintiff were buried therein gives an inference that, the plaintiff is going to claim exclusive right over the said property. As such in view of the such claim the plaintiff is required to pay the court fee as observed by his lordship in the case of Smt. Dakshayani and others cited above. 16. In view of the aforesaid observations now it is clear that, as far as the second relief regarding declaration with respect to Gift Deed is concerned, the plaintiff is not required to pay the court fee on the market value of the property. However, the plaintiff is required to pay the court fee as per Section 24(b) of the Act with respect to the first relief i.e., to declare that suit "C" schedule property as a grave yard. With these observations, Point No.1 is answered in the affirmative. Xxx xxxx xxxx O R D E R “I.A.No.3 filed by the defendants under Order VII Rule 11(b) r/w Section 151 of CPC is partly allowed as under: As far as the first relief of declaration that suit "C" schedule property as grave yard as grand parents of plaintiff were buried is concerned, the HC-KAR NC: 2026:KHC:7386 WP No. 14241 of 2022 - 7 - plaintiff is directed to value the suit in terms of COURT OF Section 24(b) of the Karnataka Court Fees and Suits Valuation Act and to pay the court fee on the basis of the market value which was prevailing as on the date of filing of the suit No order as to costs.” [Emphasis supplied] 11. Concededly the issue whether the suit ‘C’ schedule property is a grave yard or not can only be decided once both parties lead their evidence. Learned counsel for the respondents also submits that with a view to expedite the proceedings in the case, he has no objection if the issue of court fee is decided at the time of final hearing in the matter. This contention is amenable to the petitioners. 12. Learned counsel for the parties submits that issues have been framed in the matter and plaintiff’s evidence is yet to commence. 13. Accordingly and in view of the consensus between the parties the petition is disposed of with liberty to the petitioners/plaintiffs to file an appropriate application for framing of additional issue in respect of court fee, within three weeks from today. The learned Trial Court will examine the same and pass appropriate orders. The rights and contentions HC-KAR NC: 2026:KHC:7386 WP No. 14241 of 2022 - 8 - of both parties are left open to be agitated before the learned Trial Court. 14. Pending applications, if any, stand closed. (TARA VITASTA GANJU) JUDGE SNB List No.: 1 Sl No.: 12 Digitally signed by TARA VITASTA GANJU Location: HIGH COURT OF KARNTAKA