Karnataka High Court
Ayesha W/O Haroon Rashid Gove vs Nazirahamed Mohammadgous Khazi on 3 February, 2022
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 3RD DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.S.A.NO.100823 OF 2014(INJ)
BETWEEN:
SMT. AYESHA
W/O HAROON RASHID GOVE,
AGE: 57 YEARS,
OCC: HOUSEHOLD WORK,
R/O 3717/24, INAMDAR CHAWI,
DARBAR GALLI, BELAGAVI-590002.
...APPELLANT
(BY SRI.G.B.NAIK & SMT.P.G.NAIK, ADVS)
AND:
1. SHRI.NAZIRAHAMED
MOHAMMADGOUS KHAZI,
AGE: 69 YEARS, OCC: AGRICULTURE
R/O 3773/C, DARBAR GALLI,
BELAGAVI-590002.
2. SHRI. IMTIYAZ @ MALLIKAJAN
ABDULLATIF DONI,
AGE: 43 YEARS, OCC: BUSINESS,
R/O BASHIBAN COMPOUND,
BEHIND BENDI BAZAR,
BELAGAVI-590002.
3. SHRI. ASLAM ABDULLATIF DONI
AGE: 43 YEARS, OCC: BUSINESS,
R/O BASHIBAN COMPOUND,
2
BEHIND BENDI BAZAR,
BELAGAVI-590002.
4. SHRI. SALIM ABDULLATIF DONI,
AGE: 43 YEARS, OCC: BUSINESS,
R/O BASHIBAN COMPOUND,
BEHIND BENDI BAZAR,
BELAGAVI-590002.
5. SHRI. INAYATALLA
MOHAMMAD HUSSAIN KHAZI,
AGE: 43 YEARS, OCC: SERVICE,
R/O 3773/B, DARBAR GALLI,
BELAGAVI-590002.
6. THE ASSISTANT DIRECTOR OF
LAND RECORDS, CITY SURVEY,
BELAGAVI-590002.
7. THE DEPUTY COMMISSIONER,
BELAGAVI-590002.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CODE OF CIVIL
PROCEDURE PRAYING THAT THE JUDGMENT AND DECREE PASSED
ON 1.1.2005 IN O.S.NO.481/2001 BY THE IIIRD ADDL.CIVIL JUDGE
(JR. DVN), BELGAUM AND THE JUDGMENT AND DECREE DATED
25.08.2014 PASSED IN RA NO.258/2009 BY THE PRESIDING
OFFICER, FAST TRACK COURT-II AND ADDL.DISTRICT JUDGE,
BELGAUM BE SET ASIDE AND SUIT OF THE PLAINTIFF-APPELLANT
BE DECREED AS PRAYED FOR IN THE ENDS OF JUSTICE AND
EQUITY.
THIS RSA COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
3
JUDGMENT
The captioned second appeal is filed by the unsuccessful plaintiff who is questioning the concurrent judgment and decree passed by the Courts below wherein the suit filed by appellant/plaintiff seeking relief of mandatory injunction and for perpetual injunction is dismissed and confirmed by First Appellate Court.
2. The facts leading to the case are as under:
The appellant/plaintiff filed a suit seeking cancellation of decree passed in O.S.No.849/1995 and for perpetual injunction. The appellant/plaintiff claimed that the suit property is open space bearing CTS No.26571/1 totally measuring 151.34 sq. mtrs. situated at Darbargalli, Belgaum which was originally owned by Porwal brothers. In 1965, the suit property was purchased by defendant No.2 and his cousin. Thereafter, the share of his cousin namely Haron Doni was purchased by defendant Nos.3 and 4 somewhere in the 4 year 1987-88. The appellant/plaintiff further contended that in 1998, defendant Nos.2 to 4 have transferred the suit property in favour of appellant/plaintiff by way of oral gift dated 17.11.1998. By virtue of oral gift, appellant/plaintiff is claiming absolute ownership and title over the suit schedule property. The appellant/plaintiff also claimed that he is in exclusive possession and enjoyment over the suit schedule property.
3. The appellant/plaintiff also contended that the property owned by respondent No.1/defendant No.1 bears CTS No.3731 and pursuant to decree passed in O.S.No.849/1995, the extent came to be corrected thereby showing the measurement as 120.95 sq. mtrs. and this came to be effected in CTS extract vide order dated 22.06.2001 and accordingly, the name of defendant No.1 came to be mutated in CTS extract pertaining to CTS No.3731.The appellant/plaintiff has filed the present suit by contending that defendant No.1 based on a decree passed in O.S.No.849/1995 5 in collusion with the erstwhile owners is falsely laying a claim over an area of 104.08 sq.mtrs. which is in exclusive possession of appellant/plaintiff and hence, the present suit is filed seeking cancellation of the decree passed in O.S.No.849/1995 and for relief of mandatory injunction and perpetual injunction.
4. On receipt of summons, defendant No.1 contested the proceedings and stoutly denied the entire averments made in the plaint. The respondent No.1/defendant No.1 has specifically disputed the claim of appellant/plaintiff. The respondent No.1/defendant No.1 has specifically contended that the donors of appellant/plaintiff have suffered a decree in O.S.No.849/1995 and in the said suit, defendant No.6 who was the survey officer having measured the suit schedule property has fixed the boundaries in terms of title documents. The respondent No.1 further contended that the sale deed of one Mohammed Khan Khasim Saudagar clearly indicates that he has purchased the property in Execution Petition 6 No.127/1939 in a court auction in respect of CTS No.2957/1+2+3+4 of Kadebazar, Belagavi and in the said sale deed , it is clearly reflected that an area measuring 104.08 sq. mtrs. which is an open space is situated to the northern side of Doni property i.e., CTS No.2957. Therefore, placing reliance on sale deed of 1939, respondent No.1/defendant No.1 contended that the donors family have admitted in regard to existence of open space of an area of 104.08 sq.mtrs. which was part and parcel of CTSNo.3731 and the same was owned by Khaji family i.e., defendant No.1. The respondent No.1/defendant No.1 also contended that the Doni brothers who were party to O.S.No.849/1995 have not at all whispered or claimed the property of defendant No.1 i.e., an area of 104.08 which is in exclusive possession of respondent No.1/defendant No.1. The present defendant Nos.2 to 4 having suffered a decree in O.S.No.849/1995 have not chosen to challenge the said decree passed in O.S.No.849/1995 and therefore, the present appellant/plaintiff who is claiming on 7 the basis of alleged oral gift has no locus standi to question the decree passed in O.S.NO.849/1995.
5. The Trial Court having assessed the oral and documentary evidence has recorded a categorical finding that the appellant/plaintiff has failed to establish the alleged oral gift in her favour. The Trial Court having meticulously examined the rebuttal evidence adduced by the respondent No.1/defendant No.1 has recorded a categorical finding that the documents relied on by appellant/plaintiff does not indicate that oral gift is accompanied by handing over of possession in favour of the donee i.e., appellant/plaintiff. The Trial Court has also referred to several admissions in cross- examination by plaintiff wherein she has admitted in unequivocal terms that only to frustrate the decree passed in O.S.No.849/1995, the present suit is filed. The Trial Court was also of the view that the documents adduced by the appellant/plaintiff vide Exs.P-1 to P-66 and P-69 to P-70 does not come to the aid of the appellant/plaintiff and does not 8 establish the case of the appellant/plaintiff. The Trial Court has specifically taken judicial note of Ex.P-67 which is an affidavit dated 12.11.1998 which is an unmarked document i.e., oral gift alleged to have been executed and Ex.P-68 which is a declaration on affidavit of the alleged donors which is dated 28.08.1998 .
6. On meticulous examination of these two documents, the Trial Court has come to conclusion that these two documents do not indicate that the donors have parted with possession so as to satisfy the essentials of a valid and complete gift. It is in this background, the Trial Court has come to specific conclusion that appellant/plaintiff has failed to establish the right and title of the donors and has also failed to establish that she is entitled for relief of mandatory injunction. While answering issue Nos.1 and 2, the Trial Court has come to conclusion that appellant/plaintiff has failed to prove that she is the absolute owner and in exclusive possession of the suit schedule property by virtue of oral gift dated 17.11.1998. 9 Consequently, the Trial Court has also held that appellant/plaintiff has failed to prove that she had no knowledge in regard to the decree passed in favor of respondent No.1/defendant No.1 in O.S.No.849/1995. On these set of reasonings, the Trial Court has proceeded to dismiss the suit.
7. The Appellate Court having independently assessed the oral and documentary evidence in R.A.No.258/2009 has concurred with the findings of the Trial Court. The Appellate Court has also come to conclusion that the documentary evidence coupled with ocular evidence led in by appellant/plaintiff does not indicate that the donors have handed over possession of the suit schedule property pursuant to the alleged oral gift deed. The Appellate Court has also at paragraphs 32 and 33 of the judgment has dealt with the documents relied on by appellant/plaintiff. On re- appreciation, the Appellate Court has also come to conclusion that Exs.P-67 and P-68 does not indicate that donors have 10 handed over possession in favour of the present appellant/plaintiff and therefore, both the Courts have concurrently held that the alleged oral gift is not proved and the ingredients of oral gift are not at all satisfied by appellant/plaintiff and therefore, have come to conclusion that the essentials of valid and complete gift are missing in the present case on hand.
8. Learned counsel appearing for the appellant reiterating the grounds in the appeal memo would vehemently argue and contend before this Court that the cogent and clinching evidence placed on record by the appellant/plaintiff would clearly establish that the due execution of oral gift by defendant Nos.2 to 4 in favour of appellant/plaintiff and would further establish the intention on the part of donor to gift the suit schedule property, consequent acceptance by the donee and also taking of possession by appellant/plaintiff pursuant to the oral gift. To buttress her arguments, she has placed reliance on the judgment rendered in the case of Jamila 11 Begum (D) Thr.LRs Vs Shami Mohd.(D) Thr.LRs. and Another1; Abdul RAhim & Ors. v. Sk.Abdul Zabar & Ors.2 and in the case of Mahaboob Sahab Vs Syed Ismail3.
9. Heard the learned counsel appearing for the appellant. Perused both the judgments under challenge.
10. On perusal of material on record, this Court would find that respondent No.1/defendant No.1 has succeeded by adducing rebuttal evidence that the donors under whom appellant/plaintiff is asserting right and title are not at all owner of the open space which is the subject matter of the present suit. Both the Courts having meticulously examined the evidence on record have come to conclusion that it is the respondent No.1/defendant No.1 who is in exclusive possession and is also the owner of the suit property measuring 104.08 sq. mtrs. Both the Courts have 1 2019(1) Kar.L.R 211(SC) 2 2009 AIR SCW 5861 3 ILR 1996 KAR 165 12 concurrently held that appellant/plaintiff has failed to prove the alleged oral gift . What is more relevant in the present case on hand that appellant/plaintiff has miserably failed to establish the title of her donor which is a condition essential to prove that there was a valid gift in favour of appellant/plaintiff. If appellant/plaintiff has failed to establish the ownership of the donor, then the question of examining the oral gift would not arise. The clinching rebuttal evidence more particularly decree passed in O.S.NO.849/1995 clearly indicates that the donors have suffered a decree and the same is not at all challenged by the donors. In that view of the matter, this Court would find that the judgment and decree passed in O.S.No.849/1995 wherein a surveyor having measured the property has fixed the boundaries and submitted a report and in terms of the report, it was found that it is respondent No.1/defendant No.1 who is in possession of an area 104.08 sq.mtrs. which is the present suit schedule property. Therefore, placing reliance on the rebuttal evidence 13 adduced by respondent No.1/defendant No.1, both the Courts have rightly proceeded to dismiss the suit. The judgment cited by appellant are not applicable to the present case on hand since appellant is unable to prove title of her donor.
11. No substantial questions of law arises. Accordingly, the appeal stands dismissed.
Sd/-
JUDGE CA