Karnataka High Court
Smt Zaibunnissa vs G S Aejan Ahmed on 14 February, 2023
Bench: H.P.Sandesh
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RSA No. 1508 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.1508 OF 2022 (DEC/INJ)
BETWEEN:
SMT ZAIBUNNISSA
W/O SHAIK MAHABOOB
AGED ABOUT 71 YEARS
R/AT 'B' BLOCK
GUDIBANDA TOWN -561209
CHICKBALLAPURA DISTRICT
...APPELLANT
(BY SRI. NAVEED AHMED, ADVOCATE)
AND:
Digitally signed
by SHARANYA T 1. G S AEJAN AHMED
Location: HIGH S/O SHAIK MAHABOOB
COURT OF
KARNATAKA AGED ABOUT 60 YEARS
2. MRS FAIZUN
W/O G S AEJAZ AHMED
AGED ABOUT 54 YEARS
BOTH ARE R/AT MAIN ROAD
GUDIBANDE
GUDIBANDE TOWN-561209
CHICKBALLAPURA DIST
...RESPONDENTS
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RSA No. 1508 of 2022
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 16.09.2022
PASSED IN R.A.NO.9/2019 ON THE FILE OF THE SENIOR
CIVIL JUDGE, GUDIBANDE AND ETC.
THIS R.S.A. COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission. Heard the learned
counsel appearing for the appellant.
2. This appeal is filed challenging the judgment
and decree dated 16.09.2022 passed in R.A.No.9/2019 on
the file of the Senior Civil Judge, Gudbande.
3. The factual matrix of the case of the plaintiff
before the Trial Court is that she is the absolute owner in
peaceful possession and enjoyment of the suit schedule
property acquired under registered sale deed
No.282/2006-07 n 18.07.2006 for valuable sale
consideration executed by Karnataka State Financial
RSA No. 1508 of 2022
Corporation (KSFC) in an auction by highest bidder. It is
also the contention that from the date of sale, she is in
possession and enjoyment of the suit schedule property
without any interruption and katha also changed in her
name by the Town Panchayat of Gudibande. Originally,
the suit schedule property was belonged to M/s. Modern
Wood Works having place of business at No.1519/31-A of
Gudibande represented by defendant No.1 and he raised
loan by mortgaging the suit schedule property on
24.06.1993 for Rs.1.25 lakhs in favour of KSFC.
Thereafter, defendant No.1 failed to discharge the debt
and KSFC sold the suit schedule property on 31.03.2006
under public auction to the plaintiff for highest bidder for
Rs.42,000/- and executed registered sale deed in her
favour. It is contended that the defendants have created
and concocted the oral gift deed which is not permissible
in law. In turn, defendant No.1 has executed registered
gift deed No.525/2007-08 on 30.11.2007 at Sub-Registrar
of Gudibande. Since, defendant No.1 has no right, title,
interest and possession over the suit schedule property.
RSA No. 1508 of 2022
The said gift deed is null and void. On the strength of gift
deed defendant No.2 is trying to alienate the suit schedule
property in favour of others. It is also contended that
defendants are totally strangers to the suit schedule
property and they have no any manner of right, title,
interest or possession but they unnecessarily interfering
with the possession and enjoyment of the suit schedule
property. It is also the case of the plaintiff that after filing
of the suit, the defendants are trying to dispossess the
plaintiff hence, sought for relief of possession.
4. In pursuance of the suit summons, the
defendants appeared and filed the written statement
contending that the close relative of defendant No.1 have
raised funds in the family interest and purchased the suit
schedule property in the name of plaintiff from KSFC under
auction bidder with understanding to transfer the suit
schedule property in favour of defendant No.1.
Accordingly, the plaintiff transferred the suit schedule
property under oral Hiba on 01.08.2006 in favour of
RSA No. 1508 of 2022
defendant No.1 in accordance with the principles of
Mohammedan Law. Defendant No.1 has accepted the said
Hiba and taken exclusive possession by confirming sad
Hiba in declaration and sworn before the notary. Hence,
defendant No.1 has become absolute owner in possession
and enjoyment of the suit schedule property. Hence, the
very claim of the plaintiff that the said document was
created and concocted cannot be accepted.
5. Based on the pleadings of the parties, the Trial
Court framed the issues and additional issues consequent
upon the amendment of the prayer. The plaintiff
examined as PW1 and got marked the documents at Ex.P1
to P16. On the other hand, defendant Nos.1 and 2 were
examined as DW1 and DW9 and also examined other
witnesses as DW2 to DW8 and got marked the documents
at Ex.D1 to D41. The Trial Court after considering both
oral and documentary evidence placed on record dismissed
the suit of the plaintiff in coming to the conclusion that
RSA No. 1508 of 2022
there was a oral gift in favour of defendant No.1 and
rejected the claim of the plaintiff.
6. Being aggrieved by the judgment of the Trial
Court, an appeal was preferred before the First Appellate
Court and the First Appellate Court also on re-appreciation
of both oral and documentary evidence placed on record
and also considering the principles laid down in the
judgments reported in ILR 2000 KAR 1534 in the case of
MUJEER AHMED AND ANOTHER vs MOHAMMED
ZAFRULLA and ILR 1996 KAR 165 in the case of
MAHABOOB SAHAB vs SYED ISMAIL in paragraphs 17
to 20 discussed both oral and documentary evidence
placed on record and confirmed the judgment of the Trial
Court by dismissing the appeal. Hence, the present appeal
is filed before this Court.
7. The learned counsel appearing for the appellant
would vehemently contend that the defendants have
created and concocted the document at Ex.D1- oral Hiba
RSA No. 1508 of 2022
and same is not permissible and both the Courts below
have not justified in dismissing the suit for declaration,
possession and injunction when the oral gift deed (Hiba)
relied upon by the defendant is not signed and executed
by the plaintiff and it is fraudulent document in the eye of
law and also contend that both the Courts below have
failed to consider Ex.P1, P12, D7, D8, D2, D3 and D12 and
the First Appellate Court also failed to re-appreciate the
material available on record. Hence, it requires
interference by this Court to frame substantial question of
law.
8. Having heard the learned counsel for the
appellant and also on perusal of the material available on
record it discloses that the plaintiff has sought the relief of
declaration based on the document of sale deed dated
18.07.2006 and also claimed that she is in possession of
the suit property and subsequently on account of
amendment, sought for the relief of recovery of possession
of the suit schedule property. The Trial Court considered
RSA No. 1508 of 2022
the issue involved in the suit with regard to whether the
plaintiff proves that the defendants have created and
concocted the oral gift deed. The Trial Court in paragraph
12 taken note of contents of document at Ex.D1 which was
relied upon by the defendants i.e., Hiba which was oral gift
and also extracted the admission given by DW1 in the
cross-examination and also taken note of the answer
elicited from the mouth of PW1. The Trial Court also taken
note of the fact that the plaintiff has denied her signature
found in Ex.D1 but she has not taken any steps to prove
that the document at Ex.D1 is created and concocted and
even not sent the said document for hand writing expert.
On the other hand, paragraph 13 discloses that the Trial
Court exercised the powers under Section 73 of the Indian
Evidence Act by comparing the signature found in Ex.D1,
plaint and other documents and found that the signatures
are similar in nature and there is no difference in that
signatures. Hence, comes to the conclusion that the
document at Ex.D1 is executed by the plaintiff and the
same is permissible and in paragraph 14, discussed with
RSA No. 1508 of 2022
regard to the validity of the said document and rightly
comes to the conclusion that though contend that the
plaintiff has not proved the document at Ex.D1 as the
same is created and concocted one by sending the same
to the hand writing expert.
9. The First Appellate Court also on re-
appreciation of both oral and documentary evidence
placed on record taken note of the principles laid down in
the judgments referred supra wherein also discussed with
regard to Sections 147, 148 and 149 of Mohammedan
Law, the validity of the gift i.e., declaration of gift by the
donor and acceptance of the gift deed and delivery of
possession. The First Appellate Court also taken note of
the factual aspect in paragraph 17 observing that on
perusal of testimony of DW1 it is clear that Hiba was
written at Bangalore and in the Hiba, the address of
plaintiff was given as Gowribidanur because she has own
house at Gowribidanur and the same was executed in the
presence of Chand Pasha and Abdul Wazd but in further
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RSA No. 1508 of 2022
cross-examination of DW1, he denied that Ex.D1 has been
created. PW1 categorcally denied Ex.D1 and her
signatures found in that document but admittedly
defendant No.1 is in possession of the suit schedule
property. According to the plaintiff, if at all Ex.D1 is
created document, the plaintiff ought to have pleaded that
how Ex.D1 was created and how her signatures were
forged but the plaintiff has not proved the same and
dismissed the appeal.
10. The main contention of the counsel for the
appellant that both the Courts below have committed an
error in accepting the document at Ex.D1. Having
considered the material available on record it discloses
that both the Courts below have taken note of the fact
that though Ex.D1 is disputed by the plaintiff, same is not
sent to the hand writing expert. The learned counsel
appearing for the appellant in this appeal would contend
that the matter may be remanded to the Trial Court and
this Court sitting under Section 100 of CPC in exercising
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RSA No. 1508 of 2022
the powers cannot allow the appellant to cure the defect.
The appellant ought to have proved the contention which
was taken that Ex.D1 is created and concocted one before
the Trial Court as well as the First Appellate Court but the
same has not been done inspite of specific averment is
made in the plaint. The counsel for the appellant
vehemently contend that the beneficiary is not the relative
and the document is created and concocted. The said
contention cannot be accepted. Having considering the
said contention also, the Trial Court while taking into note
of the material available on record in depth discussed in
paragraph 14, the issue involved between the parties with
regard to the dispute of relationship between the parties
and taken note of Sections 149 and 150 of Mohammedan
Law and also taken note that the defendant No.1 is in
possession of the suit schedule property consequent upon
Hiba. When such material is available on record, when the
plaintiff/appellant took the contention that the document
at Ex.D1 is created and concocted cannot be accepted
when the same was not proved. Mere taking the plea that
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RSA No. 1508 of 2022
the document is created and concocted is not sufficient
and the same has to be proved by placing the substantial
material before the Trial Court. The plaintiff also not made
any efforts before the First Appellate Court to prove his
case. When such being the case, I do not find any merit in
the appeal to admit the same and to frame substantial
question of law invoking Section 100 of CPC.
11. In view of the discussions made above, I pass
the following:
ORDER
The appeal is dismissed.
In view of dismissal of the main appeal, I.A. if any,
does not survive for consideration and the same stands
disposed of.
Sd/-
JUDGE
SN
