Gowramma and Others vs Venkataiah and Others

Ravi V. Malimath, J.—The case of the plaintiff is that she is the wife of late Dasaiah, who was the son of late Hotte @ Thimma and Smt.Boramma. late Hotte @ Thimma had three sons viz., Thimmaiah @ Kundaiah, Uli @ Venkataiah and Dasaiah (the husband of plaintiff). The suit schedule properties are the ancestral properties of Hotte @ Thimma and after his death, Dasaiah and his brothers got partitioned the parties. The suit properties fell to the share of Dasaiah and he was in possession of the same. The defendants were strangers to the family of Hotte @ Thimma, colluding with revenue authorities got concocted the revenue records in their name and tried to interfere with the possession of the plaintiff. The plaintiff filed an appeal before the Assistant Commissioner, Hunsur as the Tahsildar confirmed his previous order after remand, she again filed R.A. No. 55/2011, which is pending. Hence, the instant suit was filed for a declaration that she is absolute owner and for permanent injunction.

On service of summons, defendants entered appearance and denied the case of the plaintiff. He further contended that originally, the suit properties were ancestral properties of Ponnapetaiah, Mudalaiah, Yalakkaiah and Venkataiah, who are the sons of Maribasavaiah, the ancestor of late Dasaiah and the defendants. They got divided the suit properties about 40 years ago and they have been enjoying their respective share as absolute owners. Since Hotte @ Thimma was the elder male member of the family, khatha continued in his name even though Dasaiah and defendants have been enjoying their respective shares from long back. After knowing this fact, the defendants petitioned the Tahsildar for change of khatha in terms of their possession. After enquiry, an order was passed effecting change of khatha in their respective names. The plaintiff filed an appeal and the matter was remanded to the Tahsildar for fresh enquiry. After enquiry, the Tahsildar confirmed the earlier order. Again, the plaintiff filed an appeal before the Assistant Commissioner and the same was allowed. The defendants preferred a Revision before the Deputy Commissioner, wherein the order of the Assistant Commissioner was set aside and directed the parties to approach the Civil Court. The plaintiff by suppressing this fact has filed a false suit to knock off the entire suit properties.

Based on the pleadings, the Trial Court framed the following issues:

i) Whether the plaintiff proves their title and possession over the suit schedule property?

ii) Whether the defendant proves that the market value of the suit schedule property exceed the pecuniary jurisdiction of this Court and the suit is not properly valued?

iii) Whether the plaintiff is entitled for the suit claim?

Issue No. 1 was held in negative and Issue No. 2 as does not arise for consideration.

The legal representative of the deceased plaintiff was examined as PW-1 and got examined another witness as PW-2 and got marked documents Exs. P1 to P14. On behalf of defendants, the legal representative of the deceased first defendant got examined as DW-1 and got examined another witness as DW-2 and got marked documents Exs. D1 and D2.

The Trial Court dismissed the suit. Aggrieved by the same, the plaintiff filed a first appeal, which was rejected. Hence, this second appeal.

Heard Sri. Syed Akbar, learned counsel for the appellants.

Learned counsel for the appellants contends that the judgment and decree of the Trial Court is erroneous and liable to be set aside. The Courts below failed to consider the material evidence on record and that the Court below have erroneously dismissed the suit. Hence, he pleads that the appeal be allowed.

I have perused the material evidence on record. I am of the considered view that there is no merit in this appeal. Even as per the pleadings, the case of the plaintiff is based on the sale deed and mortgage deed executed by two brothers of the husband of the plaintiff. It is the case of one of the plaintiff that the defendants are strangers to her and her family so far as the suit schedule lands are concerned. But the genealogical tree in terms of Ex. P13 itself shows the relationship between the parties. Acceptable material would have to placed in order to seek a decree for declaration. The same is not done. The plaintiff, only on the basis of the RTC and Index of Land and Record of Right, cannot claim the relief of declaration. The Trial Court has rightly rejected the suit of the plaintiff. The findings recorded by the Courts below are just and proper and do not call for any interference. No substantial question of law arises for consideration. Hence, the appeal being devoid of merit is dismissed.