P Thimmaiah S/O Puttaboyi vs Dr S K Chandrashekar Dead By His Lrs
2022 Latest Caselaw 4218 Kant

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 11TH DAY OF MARCH, 2022

                        BEFORE

           THE HON'BLE MR. JUSTICE R NATARAJ

              R.S.A. NO.197/2010(DEC/INJ)

BETWEEN:


P THIMMAIAH
S/O PUTTABOYI
AGED ABOUT 50 YEARS
NO.1218/1, NEW NO.34
GIRIYABOYIPALYA
NAZARBAD,MYSORE-570001.
                                        ...APPELLANT

(BY SRI. T MOHANDAS SHETTY, ADV.(VC))

AND

1.     DR S K CHANDRASHEKAR
       DEAD BY HIS LR'S

1(a). SMT.K.S.PARIMALA
      W/O LATE DR.S.K.CHANDRASHEKAR
      AGED ABOUT 55 YEARS.

1(b). SMT.M.C.GANGA
      D/O LATE DR.S.K.CHANDRASHEKAR
      AGED ABOUT 31 YEARS.

3(c). SRI. M.C. AMITHCHANDRA
      S/O LATE DR.S.K.CHANDRASHEKAR
      AGED ABOUT 28 YEARS.

1(d). KUM. SWETHA,
      D/O LATE DR.S.K.CHANDRASHEKAR
      AGED ABOUT 20 YEARS.
                        2

     R1(a) TO R1(d) ARE
     RESIDING AT "GANAPATHINIVAS"
     M.C. ROAD, MADDUR,
     MANDYA DISTRICT-571401.

2.   S.K. SUJAYAKANTHA
     D/O LATE DR. SK. CHANDRASHEKAR.
     AGED ABOUT 65 YEARS
     GANGOTHRI CLINIC
     MYSORE -BANGALORE ROAD
     MADDUR-571401.

3.   T RAJU
     S/O LATE THULASI THIMMABOYI
     MAJOR.

4.   B.BASAVARAJU
     S/O LATE THULASI BOYI
     MAJOR,
     R3 AND R4 ARE
     R/AT GENDEGOWDANA COLONY
     KASABA HOBLI, HEGGADADEVANA KOTE TALUK
     MYSORE DISTRICT-570001.

5.   T. RAMABOYI
     S/O LATE TULSI THIMMA BHOVI
                                     Amended as per
     MAJOR                           Court order dated
     R/AT GENDEGOWDANA COLONY        23.01.2012
     KASABA HOBLI
     HEGGADADEVANA KOTE TALUK.
                                   ...RESPONDENTS
(BY SMT. N.K.KAMALA, ADV. FOR SAMARTHANA
ASSTS. FOR R1(a, c & d);
SRI. G.A.K. GOWDA, ADV. FOR R4;
NOTICE ON R5 SERVED AND UNREPRESENTED;
APPEAL AGAINST R3 IS DISMISSED FOR DEFAULT V/O
DATED: 14.02.2019)

    THIS RSA FILED U/S 100 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 07.10.2009 PASSED
IN R.A.36/2003 ON THE FILE OF THE PRESIDING
                             3

OFFICER,   FAST    TRACK     COURT-II, MYSORE,
DISMISSING THE APPEAL FILED AGAINST THE
JUDGMENT AND DECREE DATED 02.08.2003 PASSED
IN O.S.202/1993 ON THE FILE OF THE PRINCIPAL
CIVIL JUDGE (SR.DN), MYSORE.

     THIS RSA COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                       JUDGMENT

This appeal is filed by the unsuccessful plaintiff in

O.S.No.202/1993 on the file of the Principal Civil Judge

(Sr.Dn.), Mysore challenging the concurrent finding of

fact recorded by both the courts that the plaintiff is not

the owner in possession of the suit property.

2. The parties henceforth will be referred as

they were arrayed before the trial court. The appellant

herein was the plaintiff while the respondents herein

were the defendants.

3. O.S.No.202/1993, was filed on the premise

that the suit property was given to the mother of the

plaintiff by His Highness, the then Maharaja of Mysore

as she was employed in the Palace. Later, based on a

letter dated 5.11.1962 addressed by the Secretary,

His Highness the Maharaja of Mysore to the Tahsildar,

the revenue documents were transferred to the name

of the mother of the plaintiff. The plaintiff alleged that

his mother was in possession of the suit property and

after her death, the plaintiff succeeded to the suit

property in terms of a Will executed by his mother. The

plaintiff alleged that the defendants had no manner of

right, title or interest in the suit property and were

interfering with his possession. He claimed that the

revenue authorities had entered the names of the

defendants in the revenue records in the year 1991

without notice and knowledge of the plaintiff. The

plaintiff alleged that the defendants were stepping up

their acts of interference and therefore, filed the

present suit for declaration and permanent injunction.

4. The defendant Nos.1 and 2 appeared and

filed their written statement and contended that the

suit property was sold to them by his Highness, the

Maharaja of Mysore in terms of a sale deed dated

21.4.1971 and that the defendants were in possession

of the suit property from the date of its purchase. They

alleged that the plaintiff taking advantage of the

absence of the defendants, had managed to get his

name entered in the revenue records. Thereafter, they

took steps to restore their names in the revenue

records. They claimed that the plaintiff had no manner

of right, title or interest over the suit property.

5. Based on the contentions of the parties, the

trial court framed issues and set down the case for

trial. The plaintiff was examined as PW-1 who got

marked documents as Ex.P-1 to P-12 and examined a

witness as PW-2. On behalf of the defendants, three

witnesses were examined as DW-1 to DW-3 and they

marked documents as Exs.D-1 to D-11.

6. The trial court noticed that the plaintiff

claimed title to the suit property based on an

innocuous letter dated 5.11.1962, (Ex.P-12) addressed

by the Secretary to His Highness Maharaja of Mysore

to the Tahsildar, Mysore wherein he was informed that

the suit property was gifted by his Highness. Except

this document, the plaintiff did not produce any other

document to establish that the suit property was either

gifted or granted to his mother. The revenue

documents which are relied upon by the plaintiff were

in fact set aside in an appeal before the Assistant

Commissioner. There was no document to establish the

alleged right, title and interest of the plaintiff in the

suit property. The Trial Court felt that this

documentary evidence was not sufficient to decree the

relief of declaration, more so when the defendant

Nos.1 and 2 claimed that the very same property was

sold to them by his Highness the Maharaja of Mysore

on 21.4.1971 under Ex.D-5. The Trial Court hence

dismissed the suit.

7. The plaintiff filed an appeal before the First

Appellate Court in R.A.No.36/2003. The First Appellate

Court secured the records of the Trial Court, heard the

learned counsel for the parties, framed points for

consideration and in terms of its impugned judgment

and decree dated 7.10.2009, dismissed the appeal.

Being aggrieved by the aforesaid judgment and

decree, the present second appeal is filed.

8. The learned counsel for the appellant

submits that the plaintiff had placed on record Ex.P-12,

which sufficiently indicated that the suit property was

gifted to the mother of the plaintiff and therefore, the

Trial Court ought to have considered the right, title and

interest of the mother of plaintiff over the suit property

and must have decreed the suit. He also submitted

that the Trial Court improperly rejected the application

filed by the plaintiff for appointment of court

commissioner to ascertain the possession of the suit

property.

9. Per contra, the learned counsel for the

respondents submitted that the plaintiff was unable to

establish his title to claim the relief of declaration and

therefore, the Trial Court and the First Appellate Court

were justified in dismissing the suit. She also

submitted that the application filed by the plaintiff for

appointment of Court Commissioner was unnecessary

as the suit was for the declaration and the plaintiff

miserably failed to prove the said fact.

10. I have considered the submissions made by

the learned counsel for the parties.

11. It is evident from the judgments and

decrees of both the courts that the only document

relied upon by the plaintiff is Ex.P-12, which was a

letter stated to have been addressed by the Secretary

to His Highness, the Maharaja of Mysore to the

Tahsildar, Mysore stating that the suit property was

gifted to the mother of the plaintiff. There is no other

document placed on record to establish that the suit

property was gifted to the mother of the plaintiff. Ex.P-

12 is shrouded in doubt as no effort was made to

prove Ex.P-12. Even otherwise, if the suit is filed for

declaration based on title, it was incumbent upon the

plaintiff to establish his title to the suit property. Mere

assertion that he is the owner based on an innocuous

letter cannot confer title in respect of the suit property.

12. In that view of the matter, the Trial Court

and the First Appellate Court were justified in not

granting the relief to the plaintiff. This Court does not

find it necessary to interfere with the findings of both

the courts. Hence, this appeal lacks merit and

accordingly, it is dismissed.

Sd/-

JUDGE

DM