Karnataka High Court
G. Govindappa vs Govt Of Karnataka on 27 March, 2023
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RSA No. 1142 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 1142 OF 2014 (DEC)
BETWEEN:
G. GOVINDAPPA
S/O GUDA LINGAPPA,
AGED ABOUT 60 YEARS,
R/AT VENKATAPURA VILLAGE,
KASABA HOBLI,
PAVAGADA TALUK,
TUMKUR DIST-561202
...APPELLANT
(BY SRI. HARISH H V., ADVOCATE)
AND:
1. GOVT. OF KARNATAKA
REPRESENTED BY
Digitally signed CHIEF SECRETARY,
by R DEEPA
VIDHANA SOUDHA
Location: High
Court of BANGALORE-560001
Karnataka
2. THE DEPUTY COMMISSIONER
TUMKUR DIST,
TUMKUR-572101
3. THE ASSISTANT COMMISSIONER
MADHUGIRI SUB DIVISION,
MADHUGIRI,
TUMKUR DIST-572101
4. THE TAHASILDAR
TALUK OFFICE, PAVAGADA TALUK,
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RSA No. 1142 of 2014
PAVAGADA,
TUMKUR DIST-561202
...RESPONDENTS
(BY SRI. G.M. CHANDRASHEKAR, AGA FOR R1 TO R4)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 19.04.2014 PASSED IN
R.A.NO.63/2013 ON THE FILE OF THE PRL. SENIOR CIVIL
JUDGE AND JMFC, MADHUGIRI, (SITTING AT PAVAGADA)
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 24.07.2013 PASSED IN O.S.NO.103/2011
ON THE FILE OF CIVIL JUDGE & JMFC, PAVAGADA.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Aggrieved by the judgment and decree dated 24.07.2013 passed in O.S.No.103/2011 on the file of the Civil Judge and JMFC, at Pavagada and also the judgment and decree dated 19.04.2014 passed in R.A.No.63/2013 on the file of the Senior Civil Judge, Pavagada, the appellant has filed the second appeal.
2. The parties are referred to as per their status and rank before the Trial Court. The appellant is the plaintiff and the respondents are the defendants before the trial Court.
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3. Brief facts of the case are as under:
It is the case of the plaintiff that, the plaintiff has filed the suit for declaration and permanent injunction to declare the gift deed dated 29.03.2006 is sham and nominal and the same is null and void and also to declare the ownership of the title of the plaintiff over the suit land and for consequential relief of decree for permanent injunction restraining the defendants from interfering with the plaintiff's from peaceful possession and enjoyment of the suit schedule property and to award the cost of the suit property.
4. It is the case of the plaintiff that the plaintiff is the lawful owner in possession of the suit land described in the schedule. The suit land was unfit for cultivation and fit for formation of house, site, Government buildings, hospital, colleges, etc. Moreover, the suit land is mere proximity to the village and the same is situated by the side of Pavagada-Hindupura main road. Such being the state of the things, once the Assistant Commissioner and -4- RSA No. 1142 of 2014 Tahsildar of Pavagada had approached the plaintiff and requested him to donate the suit land for the formation of site to the benefit of houseless deserving poor people and they also suggested that in view of such a gift of suit land to the Government, the Government in turn granted suitable equivalent cultivable land in survey No.95 of Venkatapura village to the extent of 10 acres in the form of exchange.
5. The Tahsildar also suggested that one Govindappa of Venkatapura village had transferred his land to the Government through gift deed for construction of hospital and assured that his suggestions will be fulfilled if the plaintiff agrees for the same. The plaintiff on 29.03.2006 executed the registered gift deed in favour of Government of Karnataka at the instructions of the Assistant Commissioner and Tahsildar. The gift deed is executed as desired by the Tahsildar and it was also implied that the Tahsildar has to grant 10 acres of land in survey No.95 of the same village in lieu of the land as a compensation to -5- RSA No. 1142 of 2014 the plaintiff and the registered gift deed was a nominal deed. The revenue entries has been entered in the name of Tahsildar on the strength of the registered gift deed.
6. It is contended that the plaintiff has not at all delivered the peaceful possession to the Tahsildar. The plaintiff submitted that though representation to the Tahsidar for allotment of the alternative land, the Tahsildar has not given any heed to the representation as well as legal notice. Hence, cause of action arose for the plaintiff to file the suit for declaration. Accordingly, the plaintiff filed the suit for declaration.
7. Though summons were served to the defendants, the defendants did not choose to file the written statement.
8. The trial Court, on the basis of the above said pleadings, framed the following points for consideration:
1. Whether the plaintiff proves that the gift deed dated 29.03.2006 executed by him in favour of the Government is null and void as contended? -6- RSA No. 1142 of 2014
2. Whether the plaintiff is entitled for the relief sought for?
3. What order?
9. The plaintiff in support of his claim, examined himself as PW.1 and got marked documents Ex.P.1 to 12. The defendants have not led either oral or documentary evidence. The trial Court answered the issues Nos.1 and 2 in the negative and dismissed the suit of the plaintiff.
10. The plaintiff aggrieved by the judgment and decree passed by the trial Court, preferred the appeal in RA No.63/2013.
11. The Appellate Court, after hearing the parties, has framed the following points for consideration:
1. Whether the plaintiff proves that the gift deed dated 29.03.2006 executed by him in favour of the Government is null and void as contended?
2. Whether the plaintiff is entitled for the relief sought for?
3. What order?-7-
RSA No. 1142 of 2014
12. The Appellate Court, after re-appreciating the oral and documentary evidence, answered point Nos.1 and 2 in the negative and held that after the plaintiff failed to prove that the lower Court erred in dismissing the suit of the plaintiff and further held that there are no grounds to interfere with the judgment and decree of the trial Court and consequently, dismissed the appeal vide judgment dated 19.04.2014. Hence, the plaintiff aggrieved by the judgment and decree passed by the Court below, has filed this second appeal.
13. Heard Sri. Harish H.V., learned counsel for the appellant and Sri. G.M. Chandrashekar, learned Additional Government advocate for respondent Nos. to 4.
14. Learned counsel for the plaintiff submits that though gift deed executed in favour of the defendants was a conditional one, he further submitted that the Assistant Commissioner and Tahsildar has assured the plaintiff that in case the plaintiff donates his property in favour of a Government they will allot the alternative site. He submits -8- RSA No. 1142 of 2014 that the Assistant Commissioner and Tahsildar after execution of registered gift deed, they have not allotted any alternative land as agreed by them. He submits that the said aspect was not considered by the Court below. Hence, on these grounds he submits that the judgments and decrees passed by the Courts below are arbitrary and erroneous. He further submits that the appellant has filed an application for production of additional documents. Hence, on these grounds, he prays to allow the appeal.
15. Per contra, learned High Court Government Pleader submits that the Tahsildar and Assistant Commissioner have not assured the plaintiff at the time of execution of registered gift deed. He further submits that the plaintiff himself voluntarily gifted the said suit land in favour of a Government. He further submitted that there is no such recital in the register gift deed in regard to grant of alternative land in favour of the plaintiff and the plaintiff has purposely not produced certified copy of the -9- RSA No. 1142 of 2014 registered gift deed. He submits that the trial Court as well as appellate Court were justified in passing the impugned judgments and decrees. Hence, he submits that the judgments and decrees passed by the Courts below, are just and proper and does not call for any interference. Hence, on these grounds, he prays for dismissal of the appeal.
16. Perused the records and considered the submissions of learned counsel for the parties.
17. It is the case of the plaintiff that the plaintiff was the owner of the suit schedule property and further at the request of the Tahsildar and Assistant Commissioner, the plaintiff had executed the registered gift deed at the time of execution of a registered gift deed. The Tahsildar and Assistant Commissioner had promised the plaintiff, in case the plaintiff executed the registered gift deed donating the suit schedule property in favour of Government, the Assistant Commissioner and Tahsildar will allot any alternative land to the plaintiff.
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RSA No. 1142 of 2014
18. It is contended that after the execution of registered gift deed the plaintiff approached the respondents i.e., Government for allotment of the alternative land. The respondents did not given any heed to the request made by the plaintiff. Hence, the cause of action arose for the plaintiff to file the suit for declaration and injunction. Though the defendants appeared in the suit, but they did not choose to file the written statement. He has deposed and reiterated the plaint averments made in the examination-in-chief and got marked at Exs.P.1 to P.12. Even though, learned counsel for the respondents did not choose to cross examine PW.1, the trial Court after recording the evidence and considering the materials on record, dismissed the suit of the plaintiff.
19. The plaintiff admitted that the plaintiff has executed the registered gift deed in favour of the Government and on the strength of the registered gift deed, name of the Government was mutated in the
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RSA No. 1142 of 2014revenue records and subsequently, name of the Government is appearing in the RTC. The plaintiff himself has produced the copy of the RTC and also produced the copy of the mutation order. Section 122 of Transfer of Property Act, 1882, which says that: 'Gift' is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee. The Gift can be made only on the defence if the donee dies before the acceptance and further Section 123 of Transfer of Property Act, 1882 provides, for the purpose of making the gift in respect of property and the said gift should be by way of registered instrument signed by the donor and donee and attested by the attesting witnesses.
20. Admittedly in the instant case, the plaintiff executed the registered gift deed in favour of a Government and the said gift deed was accepted by the donee and there was no such condition as pleaded in the
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RSA No. 1142 of 2014plaint in the registered gift deed. When there is no such condition as pleaded by the plaintiff in the plaint with regard to the allotment to the alternative land. The plaintiff has no right to claim alternative land. The plaintiff has not produced any records to demonstrate that Assistant Commissioner and Tahsildar have agreed to grant an alternative land in lieu of execution of registered gift deed. Any amount of oral evidence contrary to the terms and conditions is contrary to Section 92 of the Indian Evidence Act. The trial Court after considering the materials on record held that the registered gift deed executed in favour of a Government is not nominal, it's a genuine and consequently dismissed the suit. The appellate Court on re-appreciation of the materials on record confirmed and upheld the judgment and decree passed by the trial Court.
21. Learned counsel for the appellant has filed I.A No.1/2014 under Order XLI Rule 27 read with Section 151 of CPC, for production of additional documents. Perused
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RSA No. 1142 of 2014the documents. The said document is not relevant for the purpose of deciding the appeal in issue and further there is no reference to the proposed documents in the plaint. Further, the appellant has not explained the reason why said documents are not produced before the trial Court. The plaintiff has produced documents in order to fill up lacuna, which is not permissible under Order XLI Rule 27 of CPC. The appellant failed to fulfill the ingredients of Order XLI Rule 27 read with Section 151 of CPC. Accordingly, I do not find any grounds to entertain I.A No.1/2014. Hence, I.A No.1/2014 is rejected.
22. From the perusal of the judgment passed by the Court below, I do not find any error apparent on the face of the record, warranting indulgence by this Court. Further, I do not find any substantial question of law in this appeal. Accordingly, declined to entertain the appeal.
23. In view of the aforesaid facts and circumstances, I proceed to pass the following:
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ORDER The appeal is dismissed.
I.A No.1/2014 is also rejected. No order as to the cost.
Sd/-
JUDGE SKS