Karnataka High Court
Sri Anthuriah S/O Late Karisiddaiah vs Sri Revanna @ Revaiah S/O Mariyappa on 5 September, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
REGULAR SECOND APPEAL NO.2362 OF 2008(DEC)
BETWEEN:
1. SRI. ANTHURIAH,
S/O. LATE. KARISIDDAIAH,
AGED ABOUT 56 YEARS,
HINDU, AGRICULTURIST,
R/AT. KALLAHALLI VILLAGE,
URDIGERE HOBLI,
TUMKURU TALUK-572 101.
2. SRI. SIDDARAJAIAH,
S/O. LATE. KARISIDDAIAH,
AGED ABOUT 45 YEARS,
HINDU, AGRICULTURIST
R/AT. KALLAHALLI VILLAGE,
URDIGERE HOBLI,
TUMKURU TALUK-572 101.
3. SRI. REVANNA SIDDAIAH,
S/O LATE. KARISIDDAIAH,
AGED ABOUT 35 YEARS,
HINDU, AGRICULTURIST
R/AT. KALLAHALLI VILLAGE,
URDIGERE HOBLI,
TUMKURU TALUK-572 101.
4. SRI. G.N. LAKSHMINARASHMIAH,
S/O NARASIMIAH,
AGED ABOUT 71 YEARS,
HINDU, AGRICULTURIST,
R/AT. NO.9, KHB COLONY,
1ST BLOCK, LALBAGH SIDDAPURA,
JAYANAGAR, BENGALURU-560 011.
SINCE DEAD BY LRS,
2
4(A) T.L. PREM,
S/O LATE G.N. LAKSMINARASHMIAH,
AGED ABOUT 40 YEARS,
SINCE DEAD BY LRS,
4(A)(I) SMT. SHYAMALA,
W/O LATE PREMKUMAR,
AGED ABOUT 32 YEARS,
4(A)(II) YOGANANDA .T.P,
S/O LATE PREMKUMAR,
AGED ABOUT 6 YEARS,
APPLICANT NO.4(A)(II) IS MINOR,
REPRESENTED BY HIS N/G MOTHER,
SMT. SHYAMALA,
BOTH ARE R/AT NO.9, 1ST BLOCK,
KHB COLONY, LALBAGH SIDDAPURA,
JAYANAGAR, BENGALURU.
(AMENDMENT CAUSE TITLE AS
PER THE COURT ORDER DTD:20.09.2016)
4(B) SMT. T.L. SHANTHA,
D/O LATE G.N. LAKSHMINARASHMIAH,
AGED ABOUT 45 YEARS,
R(C) SMT. T.L. YASHODA,
D/O LATE G.N. LAKSHMINARASHMIAH,
AGED ABOUT 36 YEARS,
4(D) SMT. INDRANI,
D/O LATE G.N. LAKSHMINARASHMIAH,
AGED ABOUT 33 YEARS,
ALL RESIDING AT: NO.9, 1ST BLOCK
KHB COLONY, LALBAGH SIDDAPURA
JAYANAGAR, BENGALURU-11
(AMENDMENT CAUSE TITLE AS
PER THE COURT ORDER DTD:05.02.2010)
...APPELLANTS
(BY SRI. HARISH .H.V, ADVOCATE)
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AND:
SRI. REVANNA @ REVAIAH,
S/O MARIYAPPA,
SINCE DEAD BY LRS,
1(A) REVAMMA,
W/O LATE REVANNA,
AGED ABOUT MAJOR,
1(B) RAVI KUMAR @ KUMAR,
W/O LATE REVANNA,
AGED ABOUT 33 YEARS,
BOTH ARE R/AT. KALLAHALLI VILLAGE,
URDIGERE HOBLI,
TUMKUR TALUK-572 101.
(AMENDMENT CAUSE TITLE AS
PER THE COURT ORDER DTD:17.07.2012)
...RESPONDENTS
(BY SRI. V.B. SIDDARAMAIAH, ADVOCATE FOR R1(A&B))
THIS RSA IS FILED U/S. 100 OF CPC, AGAINST THE
JUDGEMENT & DECREE DTD:6.9.2008 PASSED IN
R.A.NO.07/2007 ON THE FILE OF THE PRESIDING OFFICER,
FAST TRACK COURT-I ADDL. DISTRICT & SESSIONS COURT,
DISMISSING THE APPEAL, FILED AGAINST THE JUDGMENT AND
DECREE DTD:16.11.2002, PASSED IN OS NO.781/1993 ON THE
FILE OF THE PRL. CIVIL JUDGE (JR.DN.) & JMFC., TUMKUR.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 10.08.2023, COMING ON FOR 'PRONOUNCEMENT
OF JUDGMENT' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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JUDGMENT
This Regular Second Appeal is filed by the defendants under Section 100 of the Code of Civil Procedure, 1908 challenging the judgment and decree passed by Civil Judge, (Jr.Dn.), Tumkur in O.S.No.781/1993 and confirmed by the Presiding Officer, Fast Track Court-III, Tumkur in R.A.No.7/2007.
2. For the sake of convenience, the parties herein are referred with original ranks occupied by them before the trial Court.
3. The brief factual matrix leading to the case are as under:
The plaintiff has filed the suit seeking declaration that he is the owner of the suit schedule property and FOR permanent injunction against defendants. According to the plaintiff, the suit schedule property is 1 acre 3 guntas out of 3 acres 6 guntas situated in Sy.No.5/1A in Kesaramadu Village with specific boundaries referred in the schedule. That the plaintiff is in possession and enjoyment of the suit schedule property and it is the property of his family. That suit property was originally in possession of the family of the plaintiff and after the death of his 5 father, he is in possession. It is asserted that the suit property was earlier was part of Sy.No.5 and it was totally measuring 4 acres and 7 guntas and on 01.02.1958 Karesiddaiah and Revaiah sons of Ananthuraiah gifted an extent of 2 acres and 3 guntas out of the said land in favour of brother of the father of the plaintiff. It is asserted that since, the date of the gift, father of the plaintiff and his uncle were in possession of the gifted land and they sold 1 acre 3 guntas out of the gifted land in favour of one Jayanarasimhaiah and remaining land in Sy.No.5 was partitioned between Revaiah and Karesiddiah together in respect of 3 acres 6 guntas of land was given new Sy.No.5/1A. It is asserted that the property was partitioned between the father of the plaintiff and his uncle and suit property has fallen to the share of the plaintiffs. He asserts that the defendant has no right, title or interest over the suit schedule property. By taking advantage of the fact that the defendants possess some small portion in suit survey number colluding with each other trying to evict the plaintiff from the suit property. The defendants have no right, title or interest to sell the suit schedule property to defendant No.6 and sale deed executed by defendant Nos.1 to 5 in favour of defendant No.6 is not binding on the plaintiff. Hence, plaintiff claims that he is compelled to file this suit. Initially, the 6 suit for bare injunction was filed, but subsequently, the plaint was got amended by incorporating the relief of declaration.
4. After registration of the suit, the suit summons have been issued to the defendants and defendants have appeared through their counsel and filed their written statement denying the allegations and assertions made in the plaint. It is denied that the plaintiff is in possession of the suit schedule property and it is asserted that the suit schedule property is the ancestral property of defendants No.1 to 5 and they acquired the same as legal heirs. It is asserted that defendants No.1 to 5 sold the suit schedule property in favour of defendant No.6 and they were in possession of the same till the sale and thereafter, defendant No.6 is in possession and sale deed was executed on 24.08.1993. It is asserted that the defendant No.6 after purchase submitted an application to revenue authorities to enter his name, which was objected by the plaintiff and matter is pending. It is asserted that the plaintiff is no way concerned with the family of the defendants and hence, they have sought for dismissal of the suit.
5. On the basis of these pleading, the trial court framed the following four issues and two additional issues: 7
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6. The plaintiff was got examined himself as PW1 and two witnesses were examined on behalf of the plaintiff as PW2 and PW3 and plaintiff has placed reliance on 20 documents marked at Ex.P1 to Ex.P20. Thereafter, defendant No.4 was examined as DW1 and one witness was examined on behalf of defendants as DW2. The defendants have placed reliance on Ex.D1.
7. After hearing the arguments and after appreciating the oral and documentary evidence, the learned Civil Judge has answered the issue Nos.1 and 2 and additional issue Nos.1 and 2 in the affirmative while issue No.3 came to be answered in the 8 negative and as such, he decreed the suit of the plaintiff. Being aggrieved by this judgment and decree of the trial court, the defendants have filed an appeal before Senior Civil Judge, CJM, Tumkur, which was subsequently transferred to Fast track Court and re-numbered as R.A.No.7/07. The learned District Judge after re-appreciating the oral and documentary evidence, dismissed the appeal by confirming the judgment and decree passed by the trial court. Being aggrieved of these concurrent findings, the defendants are before this court.
8. Heard the arguments advanced by learned counsel for the appellants. Inspite of granting sufficient opportunities, the learned counsel for respondent / plaintiff did not appear before the court. Perused the records.
9. The learned counsel for the appellants would contend that though the suit property is 1 acre 3 gutnas, as per the original claim, it was restricted to 1 acre as per the submission of the plaintiff. He would also contend that initially in the year 1993, suit for bare injunction was filed but in the year 2001, the plaint was got amended seeking a declaratory relief. The plaintiffs asserted the gift deed and partition but to substantiate the same, all the necessary parties are not placed and to prove the gift, the original gift deed is not produced so as to draw 9 inference of genuineness of the document under Section 90 of the Indian Evidence Act, 1872. He would also contend that the gift is compulsory attestable document and none of the attesting witnesses were examined and how the plaintiffs have acquired the property and in what capacity is not at all forthcoming. It is also submitted that under Section 123 of the Transfer of Property Act, 1882 acceptance of the gift is condition precedent but a copy of the gift deed discloses that there is no acceptance by signing the gift deed by the donee. It is also asserted that 1 acre is already sold by the plaintiff and in what capacity the plaintiff is claiming interest over the suit schedule property is not at all forthcoming. He would also assert that the gift is in favour of four persons, but the pleading in the plaint is in respect of gift in favour of the uncle of the plaintiff, but the other persons were not impleaded and the alleged partition is not established. When the title is set up on the basis of the gift, the title of the family of the defendants No.1 to 5 is admitted and when it is a family property and when there are legal heirs for the donors, question of gifting the property does not arise at all. It is further argued that though PW2 claims to be present during the gift, but he is not a signatory and hence, his evidence cannot be accepted. He would also contend that the material documents were not 10 produced and no application was filed before the revenue authorities for mutating the name on the basis of the gift so as to prove that the gift was acted upon or accepted. It is further asserted that from Ex.P3, it is evident that on the date of the suit, the property was standing in the name of defendants 1 to 5 and tax paid receipts are though produced they do not disclose survey number to show that they are pertaining to the suit property. The plaintiff has failed to establish how he is claiming his title over the suit schedule property. There is no evidence by the plaintiff to assert that whether it is part of the gifted property or it is part of the property received under partition. Hence, it is asserted that both the courts below have failed to appreciate the oral and documentary evidence in proper perspective and in a mechanical way has decreed the suit, which has resulted in miscarriage of justice. Hence, he asserted that interference in this Regular Second Appeal is warranted and hence, they sought for allowing the appeal.
10. This court while admitting the appeal, on 04.04.2013, framed the following substantial questions of law:
"Whether in the facts and circumstances of the case, the courts below were justified in decreeing the suit based on Ex.P18 gift deed holding that it is proved?"11
11. At the outset, it is to be noted here that the plaintiff has initially filed a suit for injunction, but subsequently, in the year 2001, he got the relief amended, seeking the relief of the declaration and injunction. The suit schedule property shown is 1 acre out of Sy.No.5/1A. Though initially there was a claim for 1 acre 3 guntas, but later on it is restricted to 1 acre.
12. The plaintiff nowhere pleaded in what way he is related to defendants' family. On the contrary, the plaintiff's claiming the property on the basis of the gift. Admittedly, gift is a compulsory attestable document under Section 123 of the Transfer of Property Act, 1882. The original gift deed is not produced and the certified copy is produced. Admittedly, there is no signature on the gift deed by the donees for having accepted the gift. No evidence forthcoming to show that the gift has been accepted during the life time of donors.
13. Though the gift is alleged to be of 1958, the presumption under Section 90 of the Indian Evidence Act, 1872, cannot be drawn, as the said presumption is available only in respect of the original document but not in respect of the certified copy. No original document is produced before the trial Court.
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14. Further, plaintiff asserts that the suit is filed in respect of 1 acre of land alone, but he did not assert whether this 1 acre is part of gifted property or otherwise. Admittedly, 1 acre of the land in Sy.No.5/1A was already sold by the ancestors of the plaintiff, which is an admitted fact. Further, the gift is not in favour of the plaintiff's father, but it was in favour of the uncle and though the plaintiff asserts the partition, none of his uncle or their legal heirs were impleaded in this suit.
15. It is further specifically asserted that originally Sy.No.5 was measuring 4 acres 7 guntas and it is asserted that out of which 2 and 1/2 acres was owned by the plaintiff's ancestors and defendants 1 to 5 possessed the rest. Hence, it is admittedly the property is owned by the defendants. The plaintiff tried to rely on mortgage, but since the defendants are not parties to the said mortgage, that cannot be taken note of.
16. In the cross-examination PW1 asserted that the gift was made by Karesiddaiah and Revaiah. He is not able to assert who are the signatories to the gift deed. By asserting the gift by the ancestors of the defendants, the plaintiff has virtually admitted the title of the defendants and he is required to prove 13 the proper transfer of the title by way of gift. PW1 further admitted that in suit survey number, the defendants possessed the land, but he did not disclose which is the land owned by them.
17. PW2 is one of the witness and in his cross-
examination, he claims that he does not know how many phodis are there in Sy No.5 and he admits that originally the said land was owned by his father Anthuraiah. He further admits that the donees have not signed the gift deed and he pleads ignorance regarding the names of attesting witnesses. Very interestingly, he admits that at the time of gift, his brother was having children and when it is ancestral property, question of they gifting individually without the consent of the other legal heirs is not permissible. The evidence of PW3 does not assist the plaintiff in any way, as he claims in his cross-examination that he do not know the extent of the suit land and now he has knowledge regarding dispute from the villagers.
18. Ex.P18 is the certified copy of the gift and admittedly, the attesting witnesses to the gift were not examined to prove the gift. Further, the signature of donee is not found on the gift for having accepted it. Further, plaintiff 14 admits the sale of 1 acre already. Further, it is also evident that there is no relationship between the family of plaintiff and defendant and Ex.P18 discloses that gift is in favour of four persons and 2.3 guntas is gifted to four persons and when the partition was effected among these four persons and who is allotted which share is not at all forthcoming. When the plaintiff is claiming gifts from the ancestors of defendant Nos.1 to 5, then the title of the defendants is admitted. Further, though PW2 claims to be present during the gift, he has not signed the gift. Ex.P1 discloses 1989-1990 onwards, name of plaintiff is appearing but prior to that, the name was entered on the basis of the gift, is not at all proved by the plaintiff by leading cogent evidence. Further, of the suit year as per Ex.P3, the names of defendants appear to the suit property and plaintiff has not produced any documents to show that he paid revenue on the suit property. The tax receipts relied on by the plaintiff do not disclose the survey number and hence, they will not assist the plaintiff in any way. Further, 1 acre of the property is already sold and then the question will arise whether the suit property is part of the gifted property or part of the property received in partition and that fact was not pleaded.
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19. The observations of the both the courts below disclose that both the courts below have approached with reverse onus as if the defendants have approached the Court. Since the plaintiff has approached the Court, the burden is on the plaintiff to substantiate his contention and he cannot take advantage of the weakness of the defendants. The oral and documentary evidence clearly establish that plaintiff has not proved the alleged gift as asserted and question of he possessing the suit schedule property does not arise at all.
20. In view of these facts, both the Courts below have committed an error in decreeing the suit only based on Ex.P18 when the gift is not proved and original gift deed is not produced. Hence, the entire approach of both the Courts below is erroneous and arbitrary, which has resulted in a miscarriage of justice. The judgment of both the Courts below suffer from perversity and there is no proper appreciation of the evidence by both the Courts below. Both the Courts below have failed to appreciate Ex.P18 and they have committed an error in holding that gift deed-Ex.P18 is proved.
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21. Considering these aspects, the substantial question of law is answered in the negative. As such, the appeal needs to be allowed and accordingly I proceed to pass the following:
ORDER
(i) Appeal is allowed;
(ii) The judgment and decree passed by Civil Judge, (Jr.Dn.), Tumkur in O.S.No.781/1993 and confirmed by the Presiding Officer, Fast Track Court-III, Tumkur in R.A.No.7/2007are set aside.
(iii) Suit filed by the plaintiff stands dismissed.
Sd/-
JUDGE SS/DS