SHRI. MANOHAR vs SHRI. SHIVAJI
- Court
- Karnataka High Court
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IN THE HIGH COURT OF KARNATAKA AT DHARWAD
R
TH
DATED THIS THE 17 DAY OF JULY, 2026
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO. 123552 OF 2020 (GM-CPC)
BETWEEN:
SHRI. MANOHAR
S/O. GAVIND SHAHAPURKAR
AGE: 51 YEARS, OCC: AGRICULTURE,
R/O: H. NO. 181, BHENDWAD GALLI,
HOSUR, TQ. & DIST: BELAGAVI -590001.
… PETITIONER
(BY SRI S.B. RAWOOT, ADVOCATE)
AND:
1. SHRI. SHIVAJI
S/O. GOVIND SHAHAPURKAR
AGE: 46 YEARS, OCC: AGRICULTURE,
R/O: H. NO. 181, BHENDWAD GALLI,
HOSUR, TQ. & DIST: BELAGAVI -590001.
SHRI. RAGHUNATH
S/O. GOVIND SHAHAPURKAR
SINCE DEAD BY LRS
2. SMT. LAXMIBAI
W/O. RAGHUNATH SHAHAPURKAR
AGE: 81 YEARS, OCC: HOUSEHOLD,
R/O: H. NO. 181, BHENDWAD GALLI,
HOSUR, TQ. & DIST: BELAGAVI-590001.
3. SHRI. PRAKASH
S/O RAGHUNATH SHAHAPURKAR
AGE: 44 YEARS, OCC: AGRICULTURE,
R/O: H. NO. 181, BHENDWAD GALLI,
HOSUR, TQ. & DIST: BELAGAVI-590001.
Digitally signed
by
MOHANKUMAR
B SHELAR
Location: HIGH
COURT OF
KARNATAKA
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4. SHRI. MAHESH
S/O. RAGHUNATH SHAHAPURKAR
AGE: 42 YEARS, OCC: AGRICULTURE,
R/O: H. NO. 181, BHENDWAD GALLI,
HOSUR, TQ. & DIST: BELAGAVI-590001.
5. SMT. MANGALA
D/O. RAGHUNATH SHAHAPURKAR
AGE: 40 YEARS, OCC: HOUSEHOLD,
R/O: H. NO. 181, BHENDWAD GALLI,
HOSUR, TQ. & DIST: BELAGAVI-590001.
6. SMT. PRABHAVATI
D/O. RAGHUNATH SHAHAPURKAR
AGE: 38 YEARS, OCC: HOUSEHOLD,
R/O: H. NO. 181, BHENDWAD GALLI,
HOSUR, TQ & DIST: BELAGAVI-590001.
7. SMT. VANDANA
D/O. RAGHUNATH SHAHAPURKAR
AGE: 36 YEARS, OCC: HOUSEHOLD,
R/O: H. NO. 181, BHENDWAD GALLI,
HOSUR, TQ. & DIST: BELAGAVI-590001.
8. SMT. GEETA
D/O RAGHUNATH SHAHAPURKAR
AGE: 34 YEARS, OCC: HOUSEHOLD,
R/O: H. NO. 181, BHENDWAD GALLI,
HOSUR, TQ. & DIST: BELAGAVI-590001.
9. SMT. SARU
D/O. RAGHUNATH SHAHAPURKAR
AGE: 32 YEARS, OCC: HOUSEHOLD,
R/O: H. NO. 181, BHENDWAD GALLI,
HOSUR, TQ. & DIST: BELAGAVI-590001.
10. SMT. ANITA
D/O RAGHUNATH SHAHAPURKAR
AGE: 30 YEARS, OCC: HOUSEHOLD,
R/O: H. NO. 181, BHENDWAD GALLI,
HOSUR, TQ. & DIST: BELAGAVI-590001.
11. SMT. NANDA
D/O. RAGHUNATH SHAHAPURKAR
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AGE: 28 YEARS, OCC: HOUSEHOLD,
R/O: H. NO. 181, BHENDWAD GALLI,
HOSUR, TQ. & DIST: BELAGAVI-590001.
12. SMT. CHANDA
D/O. RAGHUNATH SHAHAPURKAR
AGE: 26 YEARS, OCC: HOUSEHOLD,
R/O: H. NO. 181, BHENDWAD GALLI,
HOSUR, TQ. & DIST: BELAGAVI-590001.
13. SHRI SURESH S/O. KRISHNA SHIRODKAR
AGE: 66 YEARS, OCC: AGRICULTURE,
R/O: HINDWADI, TQ. & DIST: BELAGAVI,
NOW RESIDING AT GANESH PARK,
BHAGYA NAGAR, BELAGAVI-590001.
14. DR. SHRIKANT S/O. SHRIKRISHNA RANADE
AGE: 66 YEARS, OCC: AGRICULTURE,
R/O: KONDHWA KHURD, PUNE,
STATE OF MAHARASHTRA-411048.
… RESPONDENTS
(NOTICE TO R1 TO R4, R6 TO 12 AND R14 ARE SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER
DATED 08.01.2020 PASSED BY THE III ADDL. SENIOR CIVIL JUDGE
& CJM BELAGAVI ON I.A.NO.XII(12) IN O.S.NO.291/2013 IS
PRODUCED AND MARKED AS ANNEXURE-G, BY REJECTING THE
APPLICATION OF THE RESPONDENTS.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER
WAS MADE THEREIN AS UNDER:
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ORAL ORDER
(PER: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM)
The present writ petition is directed against the order
passed by the Court below on I.A. No.XII, whereby the
application filed by the defendants seeking rejection of the
plaint on the ground that the suit is not properly valued for
the purpose of payment of court fee came to be allowed,
and the plaintiff was directed to pay court fee on the
market value of the suit property.
2. Though respondent Nos.5 and 13 remain
unserved, this Court is satisfied that the petition can be
taken up for final disposal. Respondent No.5 is one of the
legal representatives of defendant No.2 and the remaining
legal representatives are already served and are
represented. There is, therefore, effective representation
of the estate, and respondent No.5 can be safely
presumed to have constructive notice of the present
proceedings. Insofar as respondent No.13 is concerned, he
is only a subsequent purchaser and the controversy
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involved in the present writ petition is confined to the
question relating to valuation of the suit and payment of
court fee. Hence, his presence is not necessary for
adjudication of the issues involved in the present petition.
3. Heard the learned counsel appearing for the
petitioner. Perused the impugned order and the material
placed on record. This Court finds it apposite to refer to
the family tree, the same is extracted as under:
Govind S/o.Monappa Shahapurkar
Died
Manohar Shivaji Raghunath
S/o.Govind S/o.Govind S/o.Govind
Shahapurkar Shahapurkar Shahapurkar
(Plaintiff) died on
10.10.2003
Laxmibai W/o.Raghunath Shahapurkar
4. The petitioner has instituted the suit seeking
partition and separate possession by specifically pleading
that the suit schedule property, though purchased in the
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name of one Raghunath under a registered sale deed
dated 1967, was in fact acquired by the propositus of the
family from and out of the joint family nucleus. It is the
specific case of the plaintiff that the property was
purchased by utilizing the proceeds derived from the sale
of ancestral properties and, therefore, notwithstanding the
purchase standing in the name of Raghunath, the property
continued to retain the character of joint family property.
The plaintiff has further asserted that Raghunath was only
acting as the Karta of the joint family and was holding the
property for and on behalf of all the coparceners.
5. During the course of trial, certain admissions were
elicited in the cross-examination of the plaintiff. Relying
upon those answers, the legal representatives of
Raghunath filed I.A. No.XII contending that the plaintiff
was admittedly not in possession of the suit property and,
therefore, the suit ought to have been valued under
Section 35(1) of the Karnataka Court Fees and Suits
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Valuation Act, 1958 (for short, ‘the Act’) by paying court
fee on the market value of the property. Accepting the
said contention, the Trial Court has held that the plaintiff is
not in joint possession of the suit schedule property and
has consequently directed payment of court fee on the
market value of the property.
6. The approach adopted by the Trial Court, in the
considered opinion of this Court, cannot be sustained.
Once the trial has commenced and the parties have
entered upon evidence, the question relating to valuation
of the suit cannot be determined solely on the basis of
certain answers elicited during cross-examination. The so-
called admissions extracted in the impugned order merely
indicate that the property stood in the possession of
Raghunath for a considerable period after its purchase.
Such statements, by themselves, cannot lead to an
inference that the plaintiff has been excluded from
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possession or that the joint possession pleaded in the
plaint stands disproved.
7. The principal question that arises for consideration
is “whether the Trial Court was justified in directing the
plaintiff to pay court fee under Section 35(1) of the Act,
solely on the basis of the plea of the contesting defendants
and certain admissions elicited during the cross-
examination of the plaintiff?”.
Findings on point for consideration:
8. The suit on hand is one for partition and separate
possession. The foundation of the plaint is that the suit
schedule property, though purchased in the name of
Raghunath, is in fact a joint family property acquired from
the joint family nucleus and that the plaintiff continues to
be a co-parcener entitled to seek partition. The plaintiff
has specifically asserted that he continues to be in joint
possession of the suit schedule property. Therefore, the
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valuation of the suit has necessarily to be examined with
reference to the averments made in the plaint and not on
the basis of the defence set up in the written statement or
the rival claim projected by the defendants.
9. It is a settled principle of law that in a suit for
partition amongst co-parceners or co-owners, possession
of one co-owner is, in the eye of law, possession of all.
Unless there is a clear plea and proof of ouster, hostile
assertion of exclusive title or complete exclusion from
enjoyment of the property, the law presumes constructive
joint possession of every co-owner. Mere exclusive
management, cultivation, payment of land revenue or long
physical occupation by one member of the family does not
amount to ouster. The Division Bench of this Court in Smt.
Nanjamma v. Smt. Akkayamma, 2015 (2) KCCR 1437 ,
has categorically held that in a partition suit it is not
necessary for the plaintiff to establish actual physical
possession and that possession of one co-parcener is
deemed to be possession of all unless there is clear
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evidence of exclusion. A similar principle has also been
B.S.
enunciated by the co-ordinate Bench of this Court in
Malleshappa v. Koratagigere B. Shivalingappa, ILR 2001
Kar 1631 .
10. Equally well settled is the principle governing the
rights of a stranger purchaser from one of the co-
parceners. A co-parcener is competent to transfer only his
undivided interest in the joint family property. Such a
transfer does not confer exclusive possession over any
defined portion of the property. The purchaser merely
steps into the shoes of the transferor and acquires only
such undivided interest as the transferor possessed on the
date of transfer. His remedy is to seek general partition
and separate possession of the share purchased. Until
there is a partition by metes and bounds, a stranger
purchaser cannot assert exclusive possession of the entire
property so as to defeat the constructive possession of the
remaining co-parceners.
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11. It is in the above legal backdrop that the
distinction between Section 35(1) and Section 35(2) of the
Act assumes significance. Section 35(1) applies where the
plaintiff admits that he has been excluded from possession
or where the plaint itself proceeds on the footing that the
plaintiff is not in possession and seeks recovery of
possession along with partition. In such a case, court fee
is payable on the market value of the plaintiff’s share. On
the other hand, Section 35(2) applies where the plaintiff
asserts that he continues to be in joint possession as a co-
owner or co-parcener and seeks partition and separate
possession. In such circumstances, the statute prescribes
payment of a fixed court fee.
12. The distinction is not merely procedural but
substantive. The applicability of either provision has to be
determined on the basis of the plaint allegations and the
nature of the relief claimed. It is impermissible for the
Court, at the threshold, to convert a suit falling under
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Section 35(2) into one under Section 35(1) merely
because the defendants dispute the plaintiff’s possession
or rely upon a registered conveyance executed in their
favour. The question whether the plaintiff has, in fact,
been excluded from possession is a seriously disputed
question of fact which can be decided only after
appreciation of evidence.
13. In the present case, defendant No.3 claims
exclusive possession on the strength of a registered sale
deed executed by the legal representatives of Raghunath.
Such a document, by itself, cannot be treated as
conclusive proof of exclusion of the plaintiff from joint
possession. The sale deed can convey only the undivided
interest of the vendor and cannot enlarge the rights of the
purchaser so as to extinguish the constructive possession
of the remaining co-parceners. Whether the purchaser has
subsequently secured exclusive possession, whether there
was an ouster of the plaintiff and whether the plaintiff had
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ceased to be in joint possession are all questions which
necessarily require adjudication upon full-fledged trial.
14. The Trial Court has fallen into an error in treating
the registered sale deed and certain answers elicited
during cross-examination as sufficient to hold, even at this
interlocutory stage, that the plaintiff stood excluded from
possession. Such an approach runs contrary to the settled
principles governing valuation of partition suits. The Court
cannot decide disputed questions relating to possession
while considering the issue of court fee. Acceptance of
such a course would virtually amount to recording findings
on the merits of the suit without trial.
15. The Division Bench of this Court in Smt.
Nanjamma v. Smt. Akkayamma (supra) has categorically
held that the question of court fee in a partition suit has to
be decided with reference to the averments contained in
the plaint and not on the basis of the defence projected by
the defendants. The Full Bench of this Court in Venkatesh
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R. Desai v. Smt. Pushpa Hosmani, ILR 2018 KAR 5095 ,
has also held that the issue relating to valuation and court
fee need not invariably be tried as a preliminary issue and
where it is intertwined with disputed questions of fact, the
same can appropriately be decided along with the other
issues after evidence is recorded.
16. Therefore, merely because a stranger purchaser
asserts that he is in exclusive possession by virtue of a
registered sale deed, the Court cannot, at the stage of
considering valuation of the suit, presume that the plaintiff
has been excluded from possession and compel him to
value the suit under Section 35(1). Such a conclusion can
be reached only after the Court records a finding, on
appreciation of the entire evidence, that the plaintiff had in
fact lost joint possession by reason of a legally established
ouster or exclusion.
17. If ultimately, after full-fledged trial, the Trial
Court records a categorical finding that the plaintiff was
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not in joint possession as on the date of institution of the
suit, it would then be open to the Court to pass
appropriate orders in accordance with law regarding
payment of deficit court fee before drawing up the decree.
However, at the present stage, the plaint cannot be
treated as one falling under Section 35(1) merely on the
basis of the defence pleaded by the defendants or the sale
deed relied upon by the stranger purchaser.
18. The impugned order, therefore, suffers from a
patent error of jurisdiction in prematurely deciding a
disputed question relating to possession and consequently
directing the plaintiff to pay ad valorem court fee under
Section 35(1) of the Act. The issue relating to valuation
and sufficiency of court fee necessarily has to abide by the
final adjudication on the question of possession and cannot
be determined on the basis of contested facts at the
interlocutory stage.
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19. There is yet another significant aspect which
appears to have escaped the attention of the Trial Court.
The scheme underlying Section 35 of the Act, is intended
to strike a balance between the right of a co-owner to
seek partition and the obligation to pay court fee. The
legislative distinction between sub-sections (1) and (2) of
Section 35 of the Act, is neither accidental nor merely
procedural. It is a conscious legislative safeguard intended
to protect the rights of non-alienating co-parceners who
continue to assert joint possession notwithstanding
alienations made by one of the members of the family.
20. A non-alienating co-parcener derives title not
through the alienating member but by birth. His right in
the joint family property is an independent and pre-
existing right recognised under the substantive law
governing coparcenary. Such a co-parcener is not a party
to the alienation and is not bound by the recitals contained
in the sale deed except to the extent permissible in law.
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Therefore, merely because one co-parcener has executed
a registered sale deed in favour of a stranger purchaser,
the remaining co-parceners do not lose either their
proprietary interest or their legal character as persons in
constructive joint possession of the property.
21. It is precisely to protect such independent rights
that Section 35(2) provides for payment of a fixed court
fee where the plaintiff asserts joint possession. If every
non-alienating co-parcener were required to value the suit
under Section 35(1) merely because a stranger purchaser
asserts exclusive possession under a registered
conveyance, the very object of Section 35(2) would stand
frustrated. Such an interpretation would virtually render
Section 35(2) otiose in cases involving alienations by one
co-parcener, though such cases constitute a substantial
class of partition litigation.
22. The Court cannot lose sight of the practical
consequences flowing from such an interpretation. In most
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partition suits involving valuable urban or commercial
properties, the market value of the plaintiff’s undivided
share would run into several lakhs. If every non-alienating
co-parcener is compelled, at the very threshold, to pay ad
valorem court fee on the market value merely because the
alienee claims exclusive possession, many genuine co-
parceners would be effectively denied access to justice.
The statutory right to seek partition of ancestral property
would become illusory, not because the claim lacks merit,
but because of the prohibitive burden of court fee.
23. The legislature has consciously avoided such an
anomalous consequence by enacting Section 35(2). The
provision recognises that until the question of exclusion is
judicially determined, every co-parcener who pleads joint
possession is entitled to institute a suit by paying the fixed
court fee prescribed therein. The benefit conferred under
Section 35(2) is thus a substantive statutory protection
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available to every non-alienating co-parcener asserting an
existing right in the joint family property.
24. If the contention advanced by the contesting
defendants is accepted, every stranger purchaser can, by
the simple expedient of producing a registered sale deed
and asserting exclusive possession, compel the plaintiff to
pay court fee under Section 35(1). Such an interpretation
would permit the defendant’s defence to determine the
maintainability of the suit. The statutory protection
available under Section 35(2) cannot be permitted to
depend upon unilateral assertions made by an alienee
whose title itself is under challenge. Acceptance of such a
proposition would completely dilute the legislative intent
and place the rights of non-alienating co-parceners at the
mercy of the transferee.
25. The question assumes greater significance in
cases where the alienation is challenged within a
reasonable period of time. Where the alienation is
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promptly questioned by the non-alienating co-parceners
and the validity and binding nature of the sale itself are
put in issue, the purchaser cannot, at the threshold, insist
that the plaintiffs have ceased to be in joint possession
merely because the sale deed has been executed. The
rights flowing under the sale deed are themselves subject
to adjudication in the suit.
26. In the present case, the alienation is questioned
within three years of the transaction. Therefore, the
purchaser cannot legitimately contend that his title has
attained finality or that the plaintiffs have, by operation of
law, lost their constructive possession over the suit
schedule property. Whether the alienation binds the
plaintiffs, whether it was supported by legal necessity,
whether the vendors were competent to convey the entire
interest and whether the purchaser has acquired any
enforceable right beyond the undivided share of the
vendors are all issues which necessarily require
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adjudication after recording evidence. Until such
adjudication, the suit cannot be treated as one falling
under Section 35(1) of the Act.
27. This Court is of the view that the position may
stand on an altogether different footing where the
alienation is made by the Karta or by the father acting in a
representative capacity and the transaction remains
unquestioned for a considerable length of time. In such
cases, if the purchaser establishes that he has remained in
open, continuous and exclusive possession for decades,
coupled with unequivocal acts of hostile assertion to the
knowledge of the remaining co-parceners, and the suit is
instituted after an inordinate lapse of time, the purchaser
may legitimately contend that the plaintiffs have been
excluded from possession and that the transaction has
attained legal efficacy. In such exceptional circumstances,
depending upon the pleadings and the facts of each case,
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the Court may examine whether the suit is one falling
under Section 35(1) of the Act.
28. However, such a conclusion cannot be drawn
merely from the existence of a registered sale deed.
Passage of time, unequivocal ouster, hostile assertion of
exclusive title and loss of constructive possession are all
matters requiring strict proof. These ingredients cannot be
presumed nor can they be inferred merely because an
alienation has taken place. More importantly, these are
matters which can be adjudicated only after a full-fledged
trial and not while considering an interlocutory application
relating to court fee.
29. The contrary interpretation would not only defeat
the legislative object behind Section 35(2), but would also
have the effect of extinguishing valuable substantive rights
of non-alienating co-parceners by imposing an onerous
fiscal burden even before their claims are adjudicated.
Such an interpretation cannot be countenanced,
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particularly when the law relating to court fee is well
settled that the question of valuation has to be determined
primarily on the basis of the plaint averments and the
relief claimed, and not on disputed questions of fact
projected by the defendants. It is only after the Court
records a definitive finding that the plaintiffs stood
excluded from possession that the consequences
contemplated under Section 35(1), if otherwise attracted
in law, can arise. Until then, the plaintiffs are entitled to
prosecute the suit by availing the statutory protection
embodied in Section 35(2) of the Act.
30. The question of court fee cannot be decided at
this stage merely on the basis of isolated admissions
elicited in cross-examination. In a suit for partition and
separate possession, the applicability of Section 35(1) or
Section 35(2) of the Act depends upon the plaintiff’s
possession and the nature of the property on the date of
the suit. Where the plaintiff asserts that the property,
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though standing in the name of the defendants, was
purchased from the joint family nucleus and therefore
constitutes joint family ancestral property, the plaintiff
must first be afforded an opportunity to discharge the
initial burden of establishing that foundational plea. Only
upon a finding that the plaintiff was not in joint
possession, or that the plaintiff’s title to the property is
denied or the plaintiff has been excluded from possession,
would Section 35(1) be attracted and court fee become
payable on the market value of the plaintiff’s share.
Conversely, where the plaintiff is in joint possession and
seeks partition of joint family property, valuation under
Section 35(2) would govern. The distinction is well
recognized in the decisions of this Court, including Smt. A.
Hemaganga v. A. Umadevi in W.P.No.41042 of 2015 where
it was held that a partition suit by a co-sharer in joint
possession falls under Section 35(2) of the Act, the
Hon’ble Supreme Court has also repeatedly emphasized
that procedural law is intended to advance justice and not
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to thwart it, and that where the Code or the statute is
silent on a situation, the Court may act to further the ends
of justice rather than defeat the claim on a premature
technicality, as stated by the Hon’ble Apex Court
in Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth
Hiralal, AIR 1962 SC 527 , and Salem Advocate Bar
Association (II) v. Union of India, (2005) 6 SCC 344 .
Therefore, if the plaintiff ultimately fails to establish joint
possession or joint family character, it would then be open
to the Court to direct payment of deficit court fee under
Section 35(1) before drawing up the decree; however, at
the present stage, a direction to pay court fee on market
value is premature and unsustainable. The question of
court fee cannot be decided at this stage merely on the
basis of isolated admissions elicited in cross-examination.
Accordingly, point for consideration is answered in the
‘negative’.
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CONCLUSIONS
31. On a cumulative consideration of the pleadings,
the statutory scheme under Section 35 of the Act, and the
principles enunciated in the decisions referred to supra,
this Court records the following conclusions:
(i) The question whether a suit for partition
falls under Section 35(1) or Section 35(2) of the
Act, has to be determined primarily on the basis of
the averments contained in the plaint and the
relief claimed therein, and not on the basis of the
defence set up in the written statement or
documents relied upon by the defendants. This
principle stands affirmed by the Division Bench of
Smt. Nanjamma v. Smt.
this Court in
Akkayamma, 2015 (2) KCCR 1437 (DB) .
(ii) In a suit for partition amongst co-
parceners or co-owners, possession of one co-
owner is, in law, possession of all. Mere long
physical possession, management of the property,
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payment of revenue or taxes, or even exclusive
enjoyment by one member of the family does not
amount to ouster unless there is clear pleading
and cogent proof of hostile exclusion. The
principles laid down in Smt. Nanjamma v. Smt.
Akkayamma, 2015 (2) KCCR 1437 (DB) and B.S.
Malleshappa v. Koratagigere B. Shivalingappa,
ILR 2001 Kar 1631 ,
continue to hold the field.
(iii) A registered sale deed executed by one
co-parcener in favour of a stranger purchaser does
not, by itself, extinguish the constructive
possession of the remaining non-alienating co-
parceners. The purchaser merely steps into the
shoes of the alienating co-parcener and acquires
only such undivided interest as the vendor
possessed. Until partition by metes and bounds,
the purchaser cannot assert exclusive possession
so as to non-suit the remaining co-parceners or
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compel them to value the suit under Section
35(1).
(iv) The statutory protection embodied under
Section 35(2) is intended to safeguard the rights
of non-alienating co-parceners who assert
subsisting joint possession. The provision cannot
be rendered nugatory by permitting a stranger
purchaser to insist upon payment of ad valorem
court fee under Section 35(1) merely by producing
a registered sale deed and asserting exclusive
possession.
(v) Where the plaintiff specifically pleads that
the property, though standing in the name of one
member of the family, was acquired from the joint
family nucleus and therefore constitutes joint
family property, the plaintiff must necessarily be
afforded an opportunity to establish the said
foundational plea by leading evidence. Until such
adjudication, the question whether the plaintiff is
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in joint possession or has suffered exclusion
remains a disputed question of fact.
(vi) A finding regarding exclusion from
possession cannot be recorded merely on the
basis of isolated admissions elicited during cross-
examination. Such admissions have to be
appreciated in the context of the entire evidence
led by the parties. Consequently, an interlocutory
determination directing payment of court fee
under Section 35(1) solely on the basis of such
admissions is legally impermissible.
(vii) Where the alienation itself is challenged
within a reasonable period and the plaintiff
disputes its binding nature, the Court cannot
presume that the stranger purchaser has
perfected an exclusive right to possession merely
because a registered conveyance exists. Whether
the alienation binds the non-alienating co-
parceners and whether they have lost constructive
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possession are matters requiring adjudication after
trial.
(viii) Illustratively, the position may stand on
an altogether different footing in exceptional cases
where the alienation has remained unquestioned
for a considerable length of time and the
subsequent conduct of the parties unmistakably
demonstrates that the stranger purchaser has
perfected and crystallized his rights under the
conveyance. For instance, where agricultural land
is alienated by the Karta or a co-parcener, the
purchaser, upon taking possession, secures
conversion of the land for non-agricultural
purposes from the competent authority, forms a
residential or commercial layout, obtains statutory
sanctions, lays roads and civic infrastructure,
alienates individual sites in favour of numerous
third-party purchasers, and permanent residential
or commercial structures are thereafter raised by
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such purchasers, these are tangible and
unequivocal acts manifesting open, continuous
and exclusive assertion of ownership. Such
supervening events, coupled with prolonged
inaction on the part of the non-alienating co-
parceners in questioning the alienation, may
furnish prima facie material indicating not merely
physical possession but clear exclusion of the
remaining co-parceners and corresponding
crystallization of the purchaser’s rights under the
sale deed by passage of time. In such exceptional
factual situations, the Trial Court may, upon
appreciation of the pleadings and evidence,
examine whether the plaintiff had, in fact, ceased
to be in joint possession as on the date of
institution of the suit so as to attract Section 35(1)
of the Act. However, even in such cases, the
determination cannot rest merely upon the
existence of the sale deed or the assertion of the
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purchaser, but must be founded on cogent
evidence demonstrating unequivocal ouster and
irreversible change in the nature and enjoyment of
the property.
(ix) The decision of this Court in Smt. A.
Hemaganga v. A. Umadevi (supra) uphold that the
applicability of Section 35(1) or Section 35(2)
ultimately depends upon the factual determination
regarding possession and cannot be concluded
merely on the basis of the defence taken by the
contesting defendants.
(x) The principles enunciated by the Hon’ble
Manohar Lal Chopra v. Rai
Supreme Court in
Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527 ,
and Salem Advocate Bar Association (II) v. Union
of India, (2005) 6 SCC 344 , that procedural law is
intended to advance the cause of justice and not
to defeat substantive rights, equally apply while
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considering questions relating to valuation and
payment of court fee in partition suits.
GUIDELINES TO THE TRIAL COURTS
32. Having noticed divergent approaches adopted by
the Trial Courts while dealing with applications under
Section 35 of the Act, this Court deems it appropriate to
reiterate the following guidelines for uniform application:
(i) In every suit for partition, the question
whether Section 35(1) or Section 35(2) applies
shall be examined primarily with reference to the
averments contained in the plaint and the relief
sought.
(ii) Where the plaintiff pleads joint
possession and values the suit under Section
35(2), the Trial Court shall not compel payment
of court fee under Section 35(1) merely because
the written statement disputes possession or
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because the defendants rely upon a registered
sale deed or other title documents.
(iii) If the defendants contend that the
plaintiff has been excluded from possession, and
such contention gives rise to disputed questions
of fact, the Trial Court shall frame an appropriate
issue and permit the parties to adduce evidence
instead of deciding the issue at the threshold.
(iv) Mere production of a registered sale
deed executed by one co-parcener or assertions
made by a stranger purchaser regarding exclusive
possession shall not, by themselves, constitute
sufficient material to invoke Section 35(1).
(v) Where the plaintiff asserts that the
property was acquired from the joint family
nucleus or otherwise forms part of the joint family
estate, the Trial Court shall first adjudicate the
issue relating to the character of the property
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before recording any finding regarding exclusion
from possession.
(vi) Admissions elicited during cross-
examination shall not be read in isolation for
deciding the question of court fee. Such
admissions shall be appreciated only along with
the entire oral and documentary evidence at the
stage of final adjudication.
(vii) If, upon conclusion of the trial, the
Court records a categorical finding that the
plaintiff was excluded from possession as on the
date of institution of the suit, or that the suit
otherwise falls within the ambit of Section 35(1),
it shall be open to the Trial Court to direct the
plaintiff to make good the deficit court fee in
accordance with law before drawing up the final
decree.
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(viii) Conversely, if the Court records a
finding that the plaintiff continued to be in joint
possession or that the plea of ouster is not
established, the valuation under Section 35(2)
shall stand affirmed and no further court fee shall
be payable.
(ix) Trial Courts shall bear in mind that
Section 35(2) is a beneficial statutory provision
enacted to preserve the right of non-alienating
co-parceners to seek partition without being
burdened with prohibitive ad valorem court fee
merely because one co-parcener has alienated his
undivided interest. The provision should receive
an interpretation that advances, rather than
defeats, the substantive right to seek partition.
(x) The determination regarding court fee
should never result in foreclosing a genuine
partition action on disputed questions of title and
possession before the parties are afforded a full
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opportunity to establish their respective rights by
leading evidence. This approach alone would be
consistent with the statutory scheme under
Section 35 of the Act, and the law declared by
this Court and the Hon’ble Supreme Court.
ORDER
(i) The writ petition is allowed .
(ii) The order dated 08.01.2020 passed on I.A.
No.XII in O.S. No.291/2013 by the III
Additional Senior Civil Judge and CJM,
Belagavi, is hereby quashed and set aside.
(iii) The Trial Court shall proceed with the trial
by permitting the parties to adduce
evidence on all the issues.
(iv) The question relating to valuation of the suit
and payment of court fee is kept open to
be decided at the time of final disposal of
the suit, in accordance with law and on the
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basis of the findings ultimately recorded on
the nature of property and issue of
possession.
(v) All contentions of the parties on the question
of court fee are left open.
Sd/-
(SACHIN SHANKAR MAGADUM)
JUDGE
CKK
CT:GSM
List No.: 1 Sl No.: 10