Shri. Faruq S/O Abdulsattar Kasai vs Shri. Yunus S/O Karimsab Kamble
2022 Latest Caselaw 13135 Kant

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 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

       DATED THIS THE 18TH DAY OF NOVEMBER, 2022

                        BEFORE

        THE HON'BLE MS. JUSTICE JYOTI MULIMANI

  REGULAR SECOND APPEAL NO.5820 OF 2010 (INJ)

BETWEEN:

SHRI.FARUQ
S/O ABDULSATTAR KASAI
AGE: 43 YEARS
OCC: BUSINESS
R/O: C.T.S. NO.3780,
KOTWAL GALLI
BELGAUM - 590 001.                             ...APPELLANT

(BY SRI.A.L.SANDRIMANI., AND
      SRI.SANTOSH B.RAWOOT., ADVOCATES)

AND:

SHRI.YUNUS
S/O KARIMSAB KAMBLE
AGE: MAJOR
OCC: CONTRACTOR IN RAILWAYS
R/O: UTAGI JUNCTION, SOLLAPUR
DIST: SOLLAPUR
MAHARASHTRA - 403 241.                        ...RESPONDENT

(BY SRI.ANAND ASHTEKAR., SRI.AKSHAY KATTI.,
      AND SRI.ABHISHEK PATIL., ADVOCATES)

     THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF CPC, AGAINST THE JUDGMENT AND DECREE
DATED:03.08.2010 PASSED IN R.A.NO.616/2009 ON THE FILE
OF THE PRESIDING OFFICER, FAST TRACK COURT-I &
ADDITIONAL DISTRICT JUDGE, BELGAUM AT BELGAUM
DISMISSING THE APPEAL, FILED AGAINST THE JUDGMENT
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DATED:28.11.2006   AND     THE   DECREE     PASSED    IN
O.S.NO.353/2006 ON THE FILE OF THE III ADDL. CIVIL JUDGE
(JR.DN), BELGAUM, DISMISSING THE SUIT FILED FOR
DECLARATION AND INJUNCTION.

     THIS REGULAR SECOND APPEAL COMING ON FOR FINAL
HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                         JUDGMENT

This appeal is from the Court of Presiding Officer, Fast

Track Court-I & Additional District Judge, Belgaum.

2. For the sake of convenience, the parties shall be

referred to as per their status and ranking before the Trial

Court.

3. The facts are quite simple and are stated as

under:

It is averred that the suit property is CTS No.3780

situated at Kotwal Galli, Belgaum. It measures 14 X 70 feet.

It is stated that originally the suit property was owned by

Burhansab Kasai. He had three sons. Thereafter, one of his

sons Mohammed Usman Kasai died leaving behind his wife

Madarbi. She had a 1/3rd share in the said property. She

executed an oral gift on 16.06.1998 in favor of

Aslambadasha S/o.Abdulsattar Kasai, is the son of her

husband's brother. By the oral gift, Aslambadasha came

into actual possession of the said property and he gifted the

property in favor of the plaintiff. Later, on 11.07.2003

plaintiff executed an oral gift in favor of the defendant.

Accordingly, the name of the defendant was entered in the

city survey records, but the actual possession of the

property was not handed over to him.

It is stated that the Gift was revoked before the Jamat

and the Jamat revoked the said Gift. In this regard an

application was filed before the A.D.L.R., to delete the name

of the defendant. But the A.D.L.R. refused to delete the

same. It is stated that the property is jointly owned by the

plaintiff and other co-owners. Contending that the plaintiff is

in peaceful possession and enjoyment of the property and

the cause of action to file the suit arose when the A.D.L.R.,

refused to delete the name of the defendant. Hence, the

plaintiff sought the shelter of the Court and prayed for a

declaration that Gift dated:11.07.2003 was null and void

and is not binding on the plaintiff. He also prayed for an

injunction restraining the defendant from alienating or

transferring the suit property. Accordingly, the suit was

filed.

After the service of the suit summons, the defendant

appeared through counsel and filed a written statement. He

denied the plaint averments. It is contended that all three

brothers were residing separately by taking their shares and

Madarbi was holding her share exclusively by 14 X 70 feet.

Aslambadashah to whom the gift was made by Madarbi is

none other than the brother of the plaintiff. It is contended

that the plaintiff gifted the property in his favor and handed

over the possession on 11.07.2003 in the presence of two

witnesses. Defendant specifically denied the revocation of

the gift by the plaintiff and the issuance of a letter by

Jamat. It is contended that the defendant is in possession

and enjoyment of the suit property. Among other grounds,

he prayed for the dismissal of the suit.

Based on the above pleadings, the Trial Court has

framed the following issues.

ISSUES

1. Whether the plaintiff proves that, he has not

given the actual physical possession of suit

property to the defendant and revoked the

oral gift executed on 11.07.2003 in favor of

the defendant?

2. Whether the plaintiff proves that, he is in

possession of suit property as on the date of

suit?

3. Whether the plaintiff is entitled to the relief

sought in this suit?

4. What order or decree?

To substantiate the claim, the plaintiff examined

himself as PW1, and two more witnesses were examined as

PW2 & 3 and produced seventeen documents which are

marked as Ex.P.1 to Ex.P.17. On the other hand, the

defendant examined himself as DW1 and produced eleven

documents which are marked as Ex.D.1 to Ex.D.11.

On the trial of the action, the suit of the plaintiff came

to be dismissed. On appeal, the Judgment and Decree of

the Trial Court were confirmed. Hence, this regular second

appeal is filed under Section 100 of CPC is filed.

4. Learned counsel for the appellant and

respondent have urged several contentions.

5. Heard the contentions urged on behalf of the

respective parties and perused the appeal papers and

records with utmost care.

Suffice it to note that the suit giving rise to this

appeal was filed by the plaintiff for the relief of declaration

that Gift executed by him on 11.07.2003 is null and void

and also consequential relief of injunction restraining the

defendant from interfering with his peaceful possession and

enjoyment of the suit property.

The fact that the suit property belonged to

Mohammed Usman Kasai and on his death, it was devolved

on his wife is not disputed. Further Madarbi gifted the

property to Aslambadasha and in turn, he gifted the said

property to the plaintiff is also not disputed. The only

dispute is about the gift which was made by the plaintiff in

favor of the defendant.

It is the specific case of the plaintiff that he has

sought for revocation of the Gift made in favor of the

defendant and accordingly he has made an application

before the Jamat and the Jamat considering the said

application revoked the gift. Thereafter, the plaintiff moved

an application before the Competent Authority to delete the

name of the defendant from the revenue record. However,

the Revenue Authority refused to delete the name of the

defendant in respect of suit property from the record of

rights.

I have perused the records with utmost care.

Ex.D.2 is the Affidavit. It is dated:11.07.2003. Farooq

S/o Abdul Sattar Kasai i.e., the plaintiff has sworn to an

affidavit before two witnesses. In the affidavit, the plaintiff

stated that he has handed over the property and actual

possession of the property to the defendant. On page No.2

para-No.2, plaintiff has also sworn that he will indemnify the

competent authority to enter the name of Donee in the

above property record after deleting his name.

Under Ex.D.2, the plaintiff has also authorized Donee

i.e., Yunus Karimsab Kamble to get his name entered into

the property. The plaintiff has handed over the possession

of the property to the defendant and he has also

undertaken to indemnify the competent authority to enter

the name of the defendant in the revenue records.

Therefore, viewed from any angle, it cannot be said that the

plaintiff is in possession and enjoyment of the suit property.

Plaintiff has specifically contended before the Courts

below that he has revoked the Gift before the Jamat on

29.08.2003 and based on revocation, he has made an

application before the A.D.L.R to delete the name of the

defendant. It is relevant to note that the A.D.L.R has

refused to remove the name of the defendant.

In this court also, he adheres to the said contention. I

am unable to accept the said contention.

The Appellate Court has re-appreciated the material

evidence on record and has concluded that the plaintiff has

failed to prove the revocation of the Gift and has also

concluded that the plaintiff is not in possession of the suit

property. It is also held that the possession of the suit

property was handed over in favor of the defendant -

Yunus.

The Trial court in extenso referred to the evidence on

record and dismissed the suit. The First appellate Court has

examined the evidence on record and reappraised it. I am

satisfied it has been appreciated from the correct

perspective. I find it necessary only to say this much that I

am not prepared to differ from the view taken by the Trial

Court and by the Court of Appeal as to the question of fact.

The substantial question of law is answered

accordingly.

The Regular Second Appeal is dismissed.

Sd/-

JUDGE TKN