MR. SABASTIAN TAURO v. MR. JOSEPH PAUL TAURO, SUVARNA T

1. MR. JOSEPH PAUL TAURO, Digitally signed by SUVARNA T Location: HIGH COURT OF KARNATAKA S/O. LATE BONAVENTURE INTRU TAURO, AGED ABOUT 51 YEARS, R/AT. MUKKODI HOUSE, PADAVU CROSS, PERMUDE VILLAGE, P.O. PERMUDE - 574 509. MANGALURU TQ. (D.K)

2. MRS. LEENA TAURO, W/O. PHILIP D'SOUZA, D/O. LATE BONAVENTURE INTRU TAURO, AGED ABOUT 69 YEARS, R/AT. DARADA LITTLE HOUSE, P.O. KUDRIPADAVU-574 227. VIA MOODBIDRI, MANGALURU TQ.(D.K). - 2 - NC: 2024:KHC:20451 WP No. 50694 of 2019

3. SCHOLASTICA D'SILVA, W/O. ANTONY D'SILVA, D/O. LATE BONAVENTURE INTRU TAURO, AGED ABOUT 66 YEARS, R/AT B.I.T. CHOL 6, ROOM NO.61, AGRIPADA, MUMBAI-400 011.

4. FLORINE DAVID, W/O. RUBERT DAVID, D/O. LATE BONAVENTURE INTRU TAURO, AGED ABOUT 64 YEARS, R/AT.C-11-147, PREM NAGAR, JOGESHWARI (E), NEAR FISH MARKET, MUMBAI-400 102.

5. LILLY MIRANDA, W/O. ROBERT M., D/O. LATE BONAVENTURE INTRU TAURO, AGED ABOUT 60 YEARS, R/AT. JAGAMOHAN JAWAHAR NAGAR, SAIBABA ROAD, KHAR (E), MUMBAI-400 055.

6. NATHALIA D'SOUZA, W/O. HARRY D'SOUZA, D/O. LATE BONAVENTURE INTRU TAURO, AGED ABOUT 58 YEARS, R/AT.C-16, JAI AMBEY COLONY, BOULANE BABUL PADA, ACHOLE ROAD, NALLASPURA(E), MUMBAI-401 203.

7. MRS. HELEN JUSTINE, D/O. LATE BONAVENTURE INTRU TAURO, AGED ABOUT 54 YEARS, R/AT NO.B-405, VAIBHAV COMPLEX, BEHIND OLD PETROL PUMP, OPP: GEETHANAGAR-3, - 3 - NC: 2024:KHC:20451 WP No. 50694 of 2019 MIRA ROAD(E), MUMBAI-401 107. RESPONDENT 3 TO 7 ATE REPTD BY THIER G.P.A. HOLDER AND BROTHER-RESPONDENT NO.1. …RESPONDENTS (BY SRI. RAGHAVENDRA SHENOY. M, ADVOCATE FOR; SRI. CYRIL PRASAD PAIS, ADVOCATE FOR R1, R3 TO 7. VIDE ORDER DATED 03.02.2021 SERVICE OF NOTICE IN RESPECT OF R3 IS HELD SUFFICIENT. R2(B) AND R2(C) ARE SERVED AND UNREPRESENTED. VIDE ORDER DATED 15.03.2024 R2(A) IS DEEMED TO BE SERVED. R2(A) SERVED AND UNREPRESENTED) THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDERS IN DATED 15.03.2019, 31.10.2019 AND 05.11.2019, O.S.NO.645/2011 ON THE FILE OF THE I ADDL. CIVIL JUDGE AND JMFC, MANGALURU, D.K. WHICH ORDERS ARE CONTAINED IN THE CERTIFIED COPY OF THE ORDER SHEET AT ANNX-G TO THE W.P. THIS PETITION, COMING ON FOR PRILIMINARY HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING: ORDER The present Writ Petition is filed aggrieved by the Order passed on the preliminary issue with regard to the jurisdiction and also against the docket order dated 31.10.2019 and

05.11.2019 in O.S.No.645/2011 passed by the I Additional Civil Judge, JMFC, Mangaluru. - 4 - NC: 2024:KHC:20451 WP No. 50694 of 2019

2. The petitioner before this Court is the defendant in the suit. The suit is filed for declaration and also sought an alternative relief for partition. In the said suit, the defendant had raised an issue with regard to the pecuniary jurisdiction of the Court below. It is the case of the defendant that the value of the property is more than Rs.5,00,000/- and the jurisdiction of the Court below is till Rs.5,00,000/-. In support of his case, he has filed the guidance value as per the Sub-registrar’s office. The Court below had dealt with the same and has observed that the plaintiff had revalued the relief at an amount of Rs.88,497/- for the purpose of Court fee and Rs.3,79,662/- for the purpose of jurisdiction. The property is situated at Permude Village of Mangalore Taluk within the jurisdiction of Sub-Registrar, Mangalore. It is argued by the defendant that in the vicinity the property was sold for an amount of Rs.8,00,000/- and also filed a memo. The Court below has observed that the plaintiff filed a memo along with the guidance value issued by the Sub-Registrar. As per that the property value for one acre of dry land is Rs.3,15,000/- and the property value for the wet land is Rs.3,25,000/-. Admittedly, it is a dry land which is 1 acre 6 cents, situated in Sy.No.28/1A. - 5 - NC: 2024:KHC:20451 WP No. 50694 of 2019 Hence, the valuation is Rs.3,15,000/- for 1 acre and Rs.18,900/- for 6 scents. The suit is valued at Rs.3,33,900/-, which do not exceed the jurisdiction of the Court i.e., Rs.5,00,000/- and accordingly the said issue is held against the defendant and held that the Court below is having the jurisdiction.

3. Learned counsel for the petitioner has drawn the attention of this Court as per the market value filed in Annexure-E before this Court. It is submitted that the value considered is about the dry land, whereas as per the Sub- Registrar's office, the property is a residential property and it has to be calculated as per the cents and according to him, it would come to Rs.36,00,000/-. This aspect was not considered by the Court below.

4. Learned counsel appearing for the respondent/plaintiff submits that this particular aspect was never agitated by the defendant before the Court below. Infact, even the documents, i.e., the guidance value was furnished by the plaintiff, but not by the defendant. When it comes to the docket orders dated - 6 - NC: 2024:KHC:20451 WP No. 50694 of 2019

31.10.2019 and 05.11.2019 whereby the Court below had taken the further cross examination of PW1 as 'nil' and by

05.11.2019 the Court below had taken the evidence as 'nil' and those two orders are also bad.

5. Learned counsel for the petitioner submits that no opportunity is given to the defendant and the order of the Court below in closing of the evidence is without considering the prayer of the defendant.

6. Learned counsel for the respondent/plaintiff submits that against the order dated 31.10.2019 and 05.11.2019, the Writ Petition is not maintainable as he has an effective alternative remedy to file an application before the Court below to set aside the said order and without seeking such a relief before the Court below he has come up before this Court.

7. Having heard the learned counsels on either side, perused the entire material on record. When the preliminary issue was considered by the Court below with regard to the jurisdiction, the Court below has to take into consideration the market value as per the book. It reveals that the Court below - 7 - NC: 2024:KHC:20451 WP No. 50694 of 2019 had considered the value of the dry land of 1 acre and 6 cents and held that the suit falls within the jurisdiction of the Court below. Learned counsel for the petitioner submits that there is a house and it is not an agricultural land and this aspect was not considered by the Court below. It appears from the record that such a stand was not taken by the defendant before the Court below.

8. However, considering the interest of both the parties, this Court deems it appropriate to set aside the order dated

15.03.2019 and the petitioner/defendant is permitted to place the market value with regard to the property before the Court below. The respondent/plaintiff is also at liberty to adduce the evidence and basing on that the Court below shall decide the preliminary issue on jurisdiction. Coming to the docket proceedings dated 31.10.2019 and 05.11.2019 as rightly argued by the learned counsel for the respondent/plaintiff, without availing the appropriate remedy, the petitioner has come up before this Court. Hence, this Court is not inclined to interfere with the said order and it is always open to the petitioner to avail the remedies available to him. - 8 - NC: 2024:KHC:20451 WP No. 50694 of 2019

9. Accordingly, the Writ Petition is disposed of. All the pending I.As., are disposed of. SD/- JUDGE BN List No.: 1 Sl No.: 24