Ayesha W/O Haroon Rashid Gove vs Nazirahamed Mohammadgous Khazi
2022 Latest Caselaw 1622 Kant

                             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

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

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

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

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

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.

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

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

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

2019(1) Kar.L.R 211(SC)

2009 AIR SCW 5861

ILR 1996 KAR 165

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

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