This second regular appeal was dismissed. The High Court found no substantial question of law as the appellant failed to prove she was the person who applied for the site allotment, distinguishing her from the allottee mentioned in official documents.
The appeal was dismissed; the appellant was not entitled to declaration of title or possession.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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RSA 23/2010
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 23RD DAY OF SEPTEMBER, 2013
BEFORE
THE HON’BLE MR.JUSTICE A.S.PACHHAPURE
REGULAR SECOND APPEAL No.23/2010
BETWEEN
MARIYAMMA W/O LATE CHELUVAIAH @ CHANNAPPA R/O DOOR NO.1/1, A.G. BLOCK ST. MARY’S ROAD, N.R. MOHALLA MYSORE-570 001.
... APPELLANT
(BY SRI. T N RAGHUPATHY & SMT. G JAYASHREE, ADVS.)
AND
MYSORE URBAN DEVELOPMENT AUTHORITY J.L.B ROAD, MYSORE-570 005 REPRESENTED BY ITS COMMISSIONER.
... RESPONDENT
(BY SRI. T P VIVEKANANDA, ADV.)
RSA FILED U/S. 100 OF CPC, AGAINST THE JUDGMENT & DECREE DATED: 17.09.2009 PASSED IN R.A.NO.275/2009 ON THE FILE OF THE IV-ADDL. DISTRICT JUDGE, MYSORE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED:13.03.2003 PASSED IN OS.NO.242/2000 ON THE FILE OF THE V-ADDL. CIVIL JUDGE, (JR.DN.), MYSORE.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
The appellant has challenged the dismissal of her suit for declaration and possession and the dismissal of her appeal by the First Appellate Court.
The parties will be referred as per their rank before the trial Court for the sake of convenience. The appellant/plaintiff instituted a suit for declaration of her title to site bearing No.628 measuring 20 x 30 feet situated at IV Stage, first phase, Vijayanagar, Mysore, described in the schedule to the plaint. It is her contention that the suit site was allotted by the defendant on 31.7.1998 and that she has paid the value of Rs.10,000/- on different dates. The defendant is said to have executed a registered lease-cum-sale agreement dated 18.12.1998 and she has sought for
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the possession certificate. As no certificate was issued, the plaintiff issued a notice dated 5.1.2000 and as there was no compliance with the demand made in the notice, she instituted the suit for declaration and possession of the site.
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got marked the documents Exs.P1 to P8. The defendant examined its official DW1 and Exs.D1 to D10 were marked. The trial Court after hearing the counsel and on appreciation of the evidence on record dismissed the suit. Aggrieved by the judgment and decree she preferred the appeal to the first appellate Court in RA No.275/2009 (old No.191/2003) and the said appeal also came to be dismissed. Aggrieved by the concurrent findings of the Courts below the present appeal is filed.
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submits that on the basis of these documents as there is an order on allotment, it is the duty of the defendant to give possession of the suit site to the plaintiff. Therefore, the learned counsel contends that the Courts below did not consider this documentary evidence produced by the plaintiff regarding the allotment of site and therefore he contends that appreciation of the evidence by the Courts below is capricious and perverse. On these grounds he has sought for raising a substantial question of law for consideration.
the respondent has supported the judgment and decrees of the Courts below.
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Perusal of Ex.P1 reveals the allotment of site bearing No.628 measuring 20 x 30 feet. To endorse the payment of the sum, she has produced Exs.P2 to P4, wherein she has paid approximately a sum of Rs.10,000/- towards the price of the site. Ex.P5 is the Encumbrance Certificate of site in question. Exs.P6 and P7 are the notices and the copy of the postal acknowledgement having served the notice to the defendant. Ex.P8 is the reply. Apart from these documents, the plaintiff has not produced any other document to show the allotment of site.
has been examined as DW1 and as per his version an application was filed for allotment of the site by name Mariyamma wife of Channappa and the original application is produced at Ex.D3. This application was submitted by the applicant on 5.3.1991 i.e. about seven years earlier to the date of allotment. The photograph of the applicant is also affixed on the application. It is the contention that in
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pursuance of this application, the payment was made and affidavit was filed by the applicant and the affidavit is produced at Ex.D1. This affidavit is signed by one Mariyamma wife of Chaluvayya and it was filed on 24.9.1998. Later the lease-cumregistered agreement was executed on 17.12.1998. This Deed has been produced by the defendant at Ex.D2. Though the plaintiff claims to be Mariyamma wife of Channappa, in the application produced at Ex.P1 only her name is mentioned, but not her husband’s name. That apart, another application has been produced by the defendant at Ex.D6 on which there is a photograph of applicant Mariyamma affixed. Perusal of the photographs Exs.D5 and D6 would reveal that they are different persons. It is in the context of this dispute relating to the persons who applied for the allotment, the request of the plaintiff was refused. Perusal of Ex.D9 would reveal that one person by name Mayanna who is said to be the son of Mariyamma wife of Channappa
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has submitted his application stating that in the year 1991 the application for allotment was filed by his mother and the amount has been paid to the defendant and therefore requested the defendant to hold an enquiry in this regard and to handover possession of the site to him as he is the son of said Mariyamma. So, perusal of the material placed on record, it is some other person other than the plaintiff is claiming a title to the suit site on the basis of the allotment in favour of one Mariyamma wife of Channapa. It is because of this reason that the possession of the site was not given to the plaintiff. The plaintiff has not produced the copy of her application filed to the defendant for allotment of the site and that could have really indicated that as the person who really was the applicant and in view of the fact that the defendant has produced the copy of the application which was filed in the year 1991, would itself reveal that the plaintiff and one Mariyamma wife of
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Channappa appears to be a different persons. In such circumstances, the relief of declaration to the plaintiff cannot be granted as she has failed to prove that it is she who has applied for allotment and that the allotment is in her favour. So also the plaintiff cannot at this stage seek possession of the suit site. On appreciation of these facts and the evidence adduced by the parties, the Courts below have concurrently held that the plaintiff is not entitled to the relief of declaration and possession. I do not find any substantial question of law for consideration in this appeal.
In the result, the appeal fails and it is accordingly dismissed.
Sd/JUDGE
*AP/-
1 issue framed by the court
Whether to grant a substantial question of law regarding the disposal of the appeal.
Mariyamma W/O Late Cheluvaiah @ Channappa
Mysore Urban Development Authority
A.S. Pachhapure
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
