Karnataka High Court
Sri Venkatashivappa vs Smt Alavelamma on 9 September, 2024
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RSA No. 892 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 892 OF 2024 (DEC/INJ)
BETWEEN:
1. SRI. VENKATASHIVAPPA
S/O PEDDA SUBBAIAH
@ SUBBARAYAPPA
AGED ABOUT 65 YEARS
2. SRI. SEENAPPA
S/O PEDDA SUBBAIAH
@ SUBBARAYAPPA
AGED ABOUT 55 YEARS
BOTH ARE RESIDING AT
GERUMARADAHALLI VILLAGE
KASABA HOBLI
GUDIBANDE TALUK
CHICKBALLAPUR DISTRICT-562 101
Digitally signed by ...APPELLANTS
SHARMA ANAND
CHAYA
(BY SRI. VASANTH RAJ, ADVOCATE)
Location: High
Court of Karnataka
AND:
1. SMT. ALAVELAMMA
D/O PEDDA SUBBAIAH
@ SUBBARAYAPPA
W/O REMACHANDRAPPA
AGED ABOUT 54 YEARS
RESIDING AT BHOGENHALLI VILLAGE
SOMENAHALLI HOBLI
GUDIBANDE TALUK
CHICKBALLAPUR DISTRICT-562 101
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RSA No. 892 of 2024
2. SMT. RATHANAMMA
D/O PEDDA SUBBAIAH
@ SUBBARAYAPPA
W/O BEERALINGAPPA
AGED ABOUT 60 YEARS
R/AT CHIKKA KURUBARAHALLI VILLAGE
SOMENAHALLI HOBLI
GUDIBANDE TALUK
CHICKBALLAPURA DISTRICT-562 101
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 01.03.2024
PASSED IN RA.NO.18/2023 ON THE FILE OF THE SENIOR CIVIL
JUDGE, GUDIBANDE, PARTLY ALLOWED THE APPEAL AND
FILED AGAINST THE JUDGMENT AND DECREE DATED
04.01.2023 PASSED IN OS.NO.197/2014 ON THE FILE OF THE
CIVIL JUDGE AND JMFC, GUDIBANDE.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE E.S.INDIRESH
ORAL JUDGMENT
This appeal is preferred by the legal representatives
of the plaintiff, challenging the judgment and decree dated
01.03.2024 in R.A. No.18/2023 on the file of Senior Civil
Judge at Gudibande, dismissing the appeal in respect of
relief of declaration and decreed the suit in O.S
No.197/2014 dated 04.01.2023 on the file of the Civil
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Judge and JMFC., Gudibande, in respect of the relief of
permanent injunction.
2. For the sake of convenience, parties are
referred to as per their rank before the trial Court.
3. It is the case of the original plaintiff that, the
plaintiff is the absolute owner in peaceful possession and
enjoyment of the suit schedule property and same has
been granted in favour of the plaintiff through Darkasth as
per the Grant Certificate dated 05.06.1973. It is the case
of the plaintiff that the defendant is the daughter of the
plaintiff. It is further stated in the plaint that the plaintiff
was aged about 90 years and was uneducated and taking
advantage of the same, defendant has got registered the
Gift Deed dated 22.07.2013. It is further averred in the
plaint that, the defendant took the advanced age of the
plaintiff and got registered Gift Deed and as such, the
defendant has played fraud and misleaded the plaintiff and
as such, the said Gift Deed is not binding on the plaintiff.
It is also the case of the plaintiff that, the possession in
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respect of the suit schedule property is with the plaintiff
and therefore, the plaintiff has filed suit in
O.S.No.197/2014 seeking relief of Declaration and
Permanent Injunction against the defendant.
4. After service of notice, the defendant entered
appearance and filed a detailed written statement and
contended that, the plaintiff has voluntarily executed the
registered Gift Deed in favour of the defendant with love
and affection and pursuant to the same, the defendant is
in possession of the schedule property. It is also stated
that the revenue record stands in the name of the
defendant and as such, the defendant sought for dismissal
of the suit.
5. The trial Court based on the pleadings on
record has formulated the issues for its considerations.
6. In order to establish their case plaintiffs have
examined two witnesses as PWs.1 and 2 and got marked
13 documents and the same were marked as Ex.P.1 to
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Ex.P.13. Defendants examined two witnesses as DWs.1
and 2 and produced 6 documents and same were marked
as Exs.D1 to D6.
7. The trial Court after considering the material on
record by its judgment and decree dated 04.01.2023
dismissed the suit. Feeling aggrieved by the same, the
legal representatives of the plaintiff had filed
R.A.No.18/2023 before the First Appellate Court and same
was resisted by the defendants. The First Appellate Court,
after re-appreciating the material on record by a judgment
and decree dated 01.03.2024 dismissed the suit in respect
of the relief of declaration. However, decreed the suit
insofar as the relief of permanent injunction and restrained
the defendant from interfering with the possession of the
suit schedule property. Feeling aggrieved by the same,
the legal representatives of the plaintiff had preferred this
Regular Second Appeal.
8. Sri Vasanth Raj, learned counsel appearing for
the appellant contended that, it is not in dispute that the
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plaintiff was aged about 90 years and was not conversant
with the documents said to have been registered on
22.07.2013 and therefore, it is the contention of the
learned counsel that the possession of the schedule
property is with the plaintiff and as such, there is no
transfer in respect of the possession of the schedule
property pursuant to the execution of the registered Gift
Deed dated 22.07.2013 and as such, he contended that
the finding recorded by the trial Court, dismissing the suit
requires to be interfered with in this appeal. He also
invited the attention of the Court to the finding recorded
by the First Appellate Court and submitted that DW.1
made an admission with regard to the possession over the
suit schedule property and to that extent the judgment
and decree passed by the First Appellate Court is to be
confirmed.
9. In the light of the submission made by the
learned counsel appearing for the appellant, it is not in
dispute that, the defendant is the daughter of the plaintiff.
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Plaintiff acquired the schedule property through Darkasth
as per Grant Certificate dated 05.06.1973. It is also not in
dispute that, the registered Gift Deed dated 22.07.2013
has been executed by plaintiff in favour of the defendant.
Pursuant to the execution of the Gift Deed dated
22.07.2013 (Ex.D.1), the mutation extract transferred into
the name of the defendant and the RTC extracts produced
at Ex.D3. to Ex.D6 evidencing that the defendant is in
cultivation of the land in question.
10. In that view of the matter, the trial Court
rightly dismissed the suit filed by the plaintiff on the
ground that the plaintiff had not taken any steps to
examine the witnesses shown in the Ex.D.1 - Gift Deed
dated 22.07.2013 and if the plaintiff is alleging the
element of fraud being committed by the defendant, it is
open for the plaintiff to examine the witnesses to the Gift
Deed produced at Ex.D.1. In that view of the matter, the
trial Court rightly dismissed the suit as the plaintiff failed
to prove his burden to establish that the defendant has
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illegally got the Gift Deed by playing fraud. Insofar as the
judgment and decree passed by the First Appellate Court
is concerned, the First Appellate Court confirmed the
judgment and decree insofar as relief of declaration is
concerned, as the plaintiff has failed to establish that the
registered Gift Deed produced at Ex.D.1 has been made
fraudulently. However, insofar as the relief of permanent
injunction is concerned, I have carefully examined the
finding recorded by the First Appellate Court, particularly,
relating to paragraph Nos. 28 to 30 wherein, discussion
was made that DW.1 admits in the cross-examination that
the plaintiff No.1(a) and (C) are in possession over the suit
land and that too based on the photograph which has been
produced at Ex.P.9, which was confronted to her. The said
stray sentence ought not to have been re-appreciated by
the First Appellate Court that too against the finding of the
fact made by the trial Court, particularly, with regard to
the documents produced at Exs.P.2 and P4, wherein, the
RTC extracts which reflects the name of the defendant. In
that view of the matter, the First Appellate Court to that
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extent has committed an error in interfering with granting
relief of injunction. In the result, as the plaintiff has failed
to establish that the alleged Gift Deed has been executed
fraudulently and therefore, the argument advanced by the
learned counsel appearing for the appellant that it is the
duty of the defendant to prove the Ex.D.1-Gift Deed
cannot be accepted. It is well established principle in law
that, the weakness of defendant cannot be considered in a
suit for declaration and it is the duty of the plaintiff to
establish his right over the suit schedule properties.
Following the declaration of law made by the Hon'ble
Supreme Court in the case of Ratnagiri Nagar Parishad v.
Gangaram Narayan Ambekar and Others reported in
(2020) 7 SCC 275 and in the case of Punjab Urban
Planning & Development Authority v. Shiv Saraswati Iron
& Steel Re-Rolling Mills reported in AIR 1998 SC 2352,
I do not find any merit in the appeal and accordingly, the
judgment and decree passed by the trial Court is
confirmed since the appellant has not made out a case for
interference in this appeal, the Regular Second Appeal is
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dismissed at the stage of admission itself as the appellant
has not made out a case for formulation of the substantial
question of law as required under Section 100 of CPC.
SD/-
(E.S.INDIRESH)
JUDGE
PSJ
