1. Heard the learned counsel for the appellant and
also the learned counsel for the respondents.
2. This second appeal is filed against the divergent
finding. The Trial Court dismissed the suit and the same is
3. The factual matrix of case of plaintiff before the
Narasimhaiah. He gifted the suit property in favour of
plaintiff through gift deed dated 19.03.1992. After
of the suit property. The Katha and pahani of suit property
made out in her name. The plaintiff got converted the suit
property from agricultural to non-agricultural land. The
plaintiff formed sites in the suit property. The plaintiff is
residing at Madhugiri, after her marriage. Taking advantage
are part and parcel of 'A' schedule property. The plaintiff
the suit property through surveyor. The plaintiff requested
the defendants to vacate the encroached portion. They
the encroached portion. During the pendency of the suit,
towards 'A' schedule property. The defendants have no
right to do so and hence, filed the suit. In pursuance of the
respective counsel. The defendant No.2 filed his written
statement of defendant No. 2. The 3rd defendant filed her
separate written statement. The 2nd defendant denied the
of the plaintiff and the defendants namely Thimmaiah.
children of ancestor Thimmaiah. The sons of ancestor
Thimmaiah were enjoying the property roughly. The
immemorial. The said bund is situated towards the north of
the said Sy.No.11/1c1. It is pleaded in paragraph No.12 of
acre 13 guntas which was originally belongs to Thimmaiah.
and Kariyanna. During their lifetime, they have divided their
properties through Palupatti dated 29.04.1958. In the said
stock and cow dung. The said 6 guntas phoded and
and it was numbered as Sy.No.11/1B. Therefore, the donor
suit property in favour of the plaintiff. The gift deed relied
upon by the plaintiff is sham and bogus document. The said
Court to dismiss the suit. The 3rd defendant has denied the
property as claimed by the plaintiff. There is a bifurcating
property. The said bund is in existence from time
immemorial. The said fact is well known to the plaintiff and
her transferor. The plaintiff has filed the suit only to harass
4. The Trial Court having considered the pleadings
1. Whether the plaintiff proves that she is the
owner in possession of 'A' schedule property
as per gift deed executed by Narasimhaiah?
2. Whether the plaintiff proves that the
defendants have encroached 02 guntas of
land in the suit schedule property as shown
in the sketch?
3. Whether the suit is bad for non-joinder of
necessary parties?
4. Whether the defendants prove that the
boundaries of the suit schedule property is
not proper?
5. Whether the plaintiff is entitled for relief as
claimed in this suit?
6. What Order or Decree?
ADDITIONAL ISSUES
1. Whether the 2nd defendant proves that gift
deed dated 19-3-1992 in favour of plaintiff is
not binding on them?
5. In order to substantiate the case, the plaintiff
herself examined as P.W.1 and got marked Ex.P.1 to
Ex.P.32. The plaintiff also examined one witness as P.W.2.
The documents Ex.D.1 to Ex.D.5 were marked through
P.W.2 during the course of cross-examination. On the other
hand, the defendant No.2 has examined himself as D.W.1
and got marked document Ex.D.1 to Ex.D.10. The
defendants also examined two witnesses as D.W.2 and
D.W.3. The Court Commissioner was appointed and the
Taluk Surveyor is examined as D.W.1 and got marked 8
documents as Ex.C.1 to Ex.C.8. The Trial Court having
considered both oral and documentary evidence, answered
all the Issue No.1 to 5 as negative. However, answered the
Additional Issue No.1 as affirmative. The Trial Court while
dismissing the suit, considering the documents in paragraph
No.15 mainly relies upon the document Ex.D.5 and Ex.D.6
of the applications given by the father of the defendant
Nos.1 and 2 and the father of the plaintiff to the Tahasildar
stating that they were partitioned the family properties on
29.04.1958 and the property bearing Sy.No.11/1c
measuring 1 acre 13 guntas, equally divided between the
father of the plaintiff and the defendant Nos.1 and 2. The
document Ex.D.7 is the certified copy of the partition deed
dated 29.04.1958 executed amongst Narasimhaiah,
Thimmaiah and Kariyanna, who are the sons of Thimmaiah.
On perusal of the document Ex.D.7, the land bearing
Sy.No.11/1 equally divided between the plaintiff's father
and father of the defendant Nos.1 and 2. The Trial Court
considering the document Ex.D.7 comes to the conclusion
that there was no property in land bearing Sy.No.11/1
fallen to the share of Narasihmmaiah who is the senior
uncle of the plaintiff. It is also oral testimony of P.W.1 that
senior uncle of the plaintiff executed the gift deed in respect
of property which were fallen to the share of her father.
This clearly reveals that donor namely Narasihmmaiah had
no title over the property to execute Ex.P.1 in favour of the
plaintiff. Hence, comes to the conclusion that the
Narasihmmaiah had no title to convey and plaintiff also fails
to prove the Issue No.1 and the Trial Court answered the
Issue Nos.1 to 5 as negative and comes to the conclusion
that Ex.P.1 no way binds on the defendants and accordingly
dismissed the suit.
6. Being aggrieved by the judgment and decree of
the Trial Court, an appeal is filed before the Appellate
Court. The Appellate Court having considered the grounds
urged in the appeal memo, formulated the following points:
1. Whether the Appellants proves the alleged
interference as set out in the appeal
memorandum?
2. Whether the judgment and decree passed by
the trial Court is capricious, perverse and
illegal?
3. Whether the judgment and decree of the trial
Court needs interference?
4. To what relief and decree the parties are
entitled for?
7. The First Appellate Court having re-assessed
both oral and documentary evidence, answered the point
Nos.1 tfo 3 as affirmative, particularly from paragraph
No.20 onwards comes to the conclusion that Trial Court
mainly relied upon the document Ex.D.1 is an unregistered
document and failed to consider the documents which have
been placed by the plaintiff before the Trial Court and not
discussed anything about the documents which have been
relied upon by the plaintiff. The First Appellate Court also
taken note of document Ex.D.5 and Ex.D.6 and also made
an observation that the Trial Court fails to take note of the
evidentiary value of Ex.D.6 and Ex.D.7 and particularly
Ex.D.7 is an unregistered partition deed and no effort made
by the defendants to prove the same by examining any of
the witnesses and Ex.D.5 and Ex.D.6 are self-declaratory
documents as the same have been produced before the
Land Reforms Tribunal and Ex.D.7 also produced before the
Land Reform Tribunal and based on the document Ex.D.7-
unregistered partition deed which was written on plain
paper which does not carry any evidentiary value in the eye
of law and comes to a conclusion that there was a partition
and donor was not having any right over the property.
8. The Trial Court utterly failed to appreciate the
evidentiary value by seeing that whether the said partition
deed acted upon or not since as already discussed with
regard to the documents Ex.P.13 to Ex.P.17 are the manual
RTC extracts for the year 1992 to 1998 which also reflects
that suit property stands in the name of Narasihmmaiah,
the uncle of the plaintiff which substantiated by the recitals
of Ex.P.1. The donor clearly mentioned that though there is
a zubani partition, but the Katha still stands in his name
with respect to all the properties. Therefore, the revenue
documents and mutation documents are standing in his
name and Ex.D.7 was not acted upon and fails to support
the contention of the defendant after effecting partition as
per Ex.D.7 and the document Ex.D.7 being self-declaratory
document based on the same neither Katha nor pahani
effected in the name of respective sharers as per Ex.D.7.
The Trial Court fails to take note of Ex.P.13 to Ex.P.17 and
also taken note of Ex.D.2 - conversion order which has
been passed by the competent authority also substantiate
the case of the plaintiff and the same being a public
document and there is no reason to disbelieve the same.
Even vital document Ex.D.19, has been unfortunately
ignored by the Trial Court, though it is self-declaratory
document made by the plaintiff before the revenue
authority where she has been stated that for the purpose of
conversion order with respect to Sy.No.11/1c that is suit
property, in order to construct the residential houses,
survey authorities have been served notice and conducted
the survey of the said property with respect to the 30
guntas of the land and she requested to conduct durasth
proceedings and the crucial point is both the respondent
Nos.1 and 2 are the signatories to the said document and
this important aspect has been lost sight of by the Trial
Court. The Trial Court also taken note of Commissioner
report which is marked as Ex.C.1 and also the document of
Ex.P.12 with regard to the encroachment is concerned and
even taken note of suggestions made to the P.W.1 by the
counsel appearing for the defendant Nos.1 and 2.
9. The First Appellate Court mainly taken note of
Ex.P.7 and Ex.P.8 RTC extracts for the year 2006-2007 also
supports the case of the plaintiff by evidencing that the
pahani was standing in the name of both plaintiff and
defendant Nos.1 and 2 to an extent as claimed by plaintiff
and the defendants were very well acquainting with the gift
deed, so also passing conversion order in favour of the
plaintiff and effecting of Katha and pahani with respect to
the suit property in the name of the plaintiff and inspite of
it, they kept quite and any point of them they have not
taken any pain to challenge the gift deed as well as
effecting of Katha and pahani in the name of the plaintiff.
Having considered all these materials, reversed the finding
of the Trial Court and granted the relief.
10. Being aggrieved by the judgment and decree of
the First Appellate Court, the present second appeal is filed
before this Court. The counsel for appellant mainly
contended that the Appellate Court committed an error
without considering the question of law and committed an
error in granting the relief based on the gift deed dated
17.03.1992 and First Appellate Court is not justified in not
upholding the gift deed even though he himself had no
proper right and title over the suit properties. The First
Appellate Court also committed an error in directing the
defendants to hand over the 'B' schedule properties of Item
No.1 and 2. This Court while considering the grounds urged
in the appeal memo, admitted the second appeal on
27.06.2024 and framed the following substantive question
of law:
1) Whether the First Appellate Court
committed an error in upholding the
registered gift deed dated 17.03.1992
executed by one Sri.Narasimhaiah and
whether he had right to execute the same
in favour of the plaintiff?
2) Whether the First Appellate Court
committed an error in declaring the plaintiff
as owner of the suit schedule property in
accepting the gift deed and directing him to
deliver the vacant possession?
3) Whether the First Appellate Court
committed an error in ignoring the material
evidence available on record and the said
reasoning that the plaintiff has made out
the case and proved the gift deed is against
the material on record and whether it
amounts to perversity?
11. The counsel appearing for the appellant in his
argument would vehemently contend that there was a
partition between the legal heirs of original propositus
Thimmaiah and partition was effected on 29.04.1958 in
terms of Ex.D.7 though Ex.D.7 is unregistered document
and particularly documents Ex.D.3, Ex.D.4, Ex.D.5 and
Ex.D.6 supports the document of Ex.D.7, it is contended
that suit property was divided between Thimmaiah and
Kariyanna and in the said partition Narasihmmaiah got
different property and when such being the case,
Narasihmmaiah had no title to execute the gift deed. The
counsel would vehemently contend that Ex.D.3 to Ex.D.7
discloses the description, it was divided 23½ guntas each
and remaining 6 guntas for common use was left out. The
gift deed in favour of daughter of Thimmaiah by
Narasihmmaiah and the same ought not to have been
considered by the First Appellate Court. The counsel would
vehemently contend that the Trial Court considering the
material on record, particularly in paragraph No.15 correctly
discussed the case of the parties and rightly comes to the
conclusion that plaintiff has not made out the case. The
counsel would vehemently contend that reversal made by
the First Appellate Court after paragraph No.20 onwards is
not correct. The very approach that Ex.D.7 is not proved is
erroneous and there is an admission by P.W.1 to that
effect.
12. Per contra, the counsel appearing for the
respondents would vehemently contend that the Trial Court
passed the cryptic order and not discussed anything about
the case of the plaintiff and only relies upon document
Ex.D.3 to Ex.D.7 and particularly no evidentiary value can
be attached to those documents and hence, Appellate Court
in detail discussed the same in paragraph Nos.16, 19, 20,
21, 22 to 25. The First Appellate Court not committed any
error in passing such an order and detailed discussion was
made in the judgment.
13. In reply to this argument, counsel appearing for
the appellant would submits that in terms of Ex.D.7,
property was allotted only in favour of Thimmaiah and
Kariyanna and not allotted in favour of Narasimhaiah and
though document gift deed relies upon there was a zubani
partition and the same ought not to have been relied upon
by the First Appellate Court and gift deed executed is not by
a person having right. The document Ex.P.17 clearly
discloses that jointly stands in the name of all the members
of the family and even loan was taken from the bank and all
these materials were not considered by the First Appellate
Court.
14. Having heard the appellant's counsel and also
the counsel appearing for the respondents, this Court has to
consider the material available on record including the
evidence since there is a divergent finding. No doubt, in
second appeal, the Court no need to touch upon the
evidence, but, when there is a divergent finding, matter
requires to be reconsidered by considering both oral and
documentary evidence available on record.
15. The P.W.1 who is the plaintiff reiterates the
plaint averments in the suit. No dispute with regard to the
relationship between the parties. No doubt P.W.1 also
admits in the cross-examination that there was a partition
on 24.09.1958 and also admits that all the revenue records
stands in the name of Narasimhaiah during his lifetime and
in terms of the earlier partition, kathas are continued in his
name only, but, she claims that in Sy.No.11, Kariyappa got
11 guntas and her father got 40 guntas of land and she
came to know the same through her father and also she
admits that she had seen the partition document between
her father and Kariyappa, but, again says that not seen. It
is elicited that after phodi of the Sy.No.11, in the
cultivator's column, name of Narasimhaiah was shown and
in column No.12, name of Thimmaiah and Kariyappa were
found and after the phodi, 1 acre 7 guntas was remaining
and in Ex.P.13, it is mentioned that half in favour of
Thimmaiah and remaining half in favour of the Kariyappa.
When the suggestion was made that both of them are
cultivating equally and the same was denied. It is also her
admission that her father's property stands in the name of
her senior uncle.
16. The P.W.2 speaks about the existence of
properties bearing Sy.No.11/1 and Sy.No.12/9 and in the
cross-examination, P.W.2 admits that other than hay-stock
area towards the south, the total extent of property is 1
acre 7 guntas and in 1 acre 7 guntas of land, on the
northern area, northern portion was given to Thimmaiah
and southern portion was given to the defendants. After the
division between the plaintiff's father and defendant's father
and they are cultivating the same by putting the bund and
on the northern side after the bund, plaintiffs are cultivating
and on the southern side defendants are cultivating the
same, but admits that they have divided the same equally
and he cannot tell when the phodi work was done and also
cannot tell when alienation was made.
17. On the other hand D.W.1 in his evidence he
reiterates the evidence in terms of the written statement.
D.W.1 categorically says that all the documents stands in
the name of Narasimhaiah and categorically admits that in
Ex.P.16, name of the plaintiff was found and also admits
that in terms of Ex.P.4, Sy.No.11/1c to the extent of 30
guntas stands in the name of the plaintiff. When the
question was put whether it was challenged, witness says
that plaintiff approached the Court and hence, not
challenged the same. He admits that Katha was made in
terms of M.R.No.9/2003-04 in the name of his brother and
also his senior uncle and the same was not challenged and
whether he is not aware of the same was challenged or not.
Even after filing of the suit also they have not challenged
the M.R and also he did not enquire how many phod was
made. He admits that Court Commissioner was inspected
the property and given the report. He admits that in terms
of Ex.D.1 to Ex.D.8, pahani was not effected and even in
terms of cultivation, property was not changed in the
revenue records.
18. The D.W.2 speaks about construction of the
house by Kariyanna and enjoying the property. In the
cross-examination admits that he was not participated
when the partition was taken place and also admits that he
was not present at the time of measurement. He admits
that there was an agreement and 2nd defendant was
witness to the said document and witness says that not 2nd
defendant, but, 1st defendant. He also admits that 1st
defendant given evidence in favour of him in connection
with the said agreement and also he is getting water from
the land of defendant No.2.
19. The D.W.3 also gives evidence in correlation to
the evidence of D.W.2. He also admits in the cross
examination that he was not present at the time of partition
and even at the time of survey. The Commissioner was also
examined before the Trial Court and Commissioner in his
evidence says that he had visited the spot and conducted
the survey and prepared the report and documents Exhibit
C- series are marked through him. He was subjected to
cross-examination and in the cross-examination, when the
document Ex.P.12 was confronted to him, he says with
regard to the encroachment is concerned and mentioned
the same. He cannot tell who is in occupation on southern
portion of Sy.No.12 of Sy.No.11/1c1 and he cannot tell
when it was phoded as Sy.No.11/1A, Sy.No.11/1B and
Sy.No.11/1C, but he admits that there was an existence of
bund, but, he cannot tell how many bunds are there.
20. Having re-assessed both documentary and oral
evidence available on record, particularly the evidence of
P.W.1, he categorically admits that there was a partition
among the members of the family on 24.09.1958 and
witness volunteers that it was only a oral partition and
categorical admission was given that Narasimhaiah, who is
the senior member of the family, all the records standing in
his name and in terms of the said earlier partition, kathas
were not transferred. Hence, it is clear that property stands
in the name of Narasimhaiah even after the partition. The
P.W.1 categorically admits that he came to know about the
earlier partition, but claims that in Sy.No.11, measuring 40
guntas was allotted in favour of his father, but though
earlier admitted that he had seen the document of partition,
but immediately says not seen the same and categorical
admission was given that property stands in the name of
Narasimhaiah and her father property also stands in the
name of senior uncle and hence, father had executed the
gift deed including the property of the plaintiff's father.
21. It is also important to note that when the
plaintiff examined one more witness as P.W.2, the witness
P.W.2 categorically admits that division between the
plaintiff's father and defendants and remaining land of 1
acre 7 guntas southern portion was allotted in favour of the
defendants and northern portion was allotted in favour of
the plaintiff's father and both of them have put bund and
cultivating the same in the respective portions. This
admissions takes away the case of the plaintiff. Hence, it is
clear that both plaintiff and defendants were cultivating the
property to the extent of half of the area on the northern
side and southern side and the same is in terms of the
document of Ex.D.7 and there is a clear admission with
regard to the document of Ex.D.7 that there was a partition
in the year 1958 and Sy.No.11 was equally divided among
the family of the plaintiff and defendant. Hence, rightly the
Trial Court taken note of those materials on record though
the partition of the year 1958 is not registered document
there is a clear admission on the part of P.W.1 and also the
P.W.2. Hence, it is clear that the earlier partition was acted
upon and though revenue records are not changed, but
categorical admission goes against the plaintiff. When such
being the case and though the judgment of the Trial Court
is very cryptic and discussion was made in paragraph No.15
and the Trial Court not discussed the documents of plaintiff
which have been relied upon, but it is very clear that
document stands in the name of Narasimhaiha who being
the senior member of the family and even half of the
partition in the year 1958 continued in the name of the
Narasimhaiah and the Trial Court rightly comes to the
conclusion that the said Narasimhaiah was not having
absolute right to execute the gift deed in favour of the
plaintiff. There is a clear admission with regard to the
earlier partition of the year 1958 by the P.W.1 and also the
P.W.2 clear admission was given, both of them are
cultivating southern portion and northern portion equally
that is 1 acre 7 guntas of land excluding the 6 guntas which
has been used for common usage. The First Appellate Court
committed an error in reversing the finding of Trial Court
and no doubt in detail discussed the same, but fails to take
note of admission on the part of P.W.1 and P.W.2 that there
was a division in respect of Sy.No.11 and the same was
allotted equally to the plaintiff's father and defendant's
father and both of them are cultivating the southern portion
and also the northern portion and even they have put up
bund to demarcating the property and merely because no
revenue documents are changed in the name of the
respective parties in terms of the partition, First Appellate
Court committed an error in discussing the same in
paragraph Nos.20 to 25. Though elaborate discussion was
made, but lost sight of the admission on the part of P.Ws.1
and 2. The P.W.1 also categorically admits even the
property which was allotted in the said partition was also
gifted in favour of the plaintiff since all the property stands
in the name of Narasimhaiah who being the elder member
of the family including the father's property and these are
the admissions were taken note of by Trial Court. But, First
Appellate Court failed to take note of the same and the
admission of P.W.2 takes away the case of the plaintiff. He
categorically deposes that there was a division and in terms
of the division, both of them cultivating equally and even
document was not registered that is Ex.D.7. The Trial Court
taken note of the exhibit D-series documents Ex.D.4,
Ex.D.5 and Ex.D.6. No doubt gift deed was executed in
favour of the plaintiff in terms of Ex.P.1, but the said
Narasimhaiah was not having any exclusive right over the
property and First Appellate Court only comes to the
conclusion that before executing the gift deed, property was
stands in the name of the donor and hence, donor has got
right and the said reasoning is erroneous. Hence, the
judgment of the First Appellate Court is against the material
on record particularly the admission on the part of P.W.1
and P.W.2 and there was a division in the year 1958 and
subsequent to the division, parties are enjoying the
property and not changed the Katha in the revenue records
in terms of the earlier partition and that cannot give any
right to the Narasimhaiah to execute the gift deed and
hence, the Trial Court rightly comes to the conclusion in
answering Additional Issue No.1 as affirmative in coming to
the conclusion that the same is not binding on the
defendants. Hence, I answer the substantive question of
law accordingly that First Appellate Court committed an
error in reversing the finding of the Trial Court and hence,
the appellant succeeds in the appeal.
22. In view of the discussions made above, I pass
the following:
ORDER
i) The Second Appeal is allowed.
ii) The impugned judgment and decree passed
by the First Appellate Court in R.A.No.4/2015
dated 21.03.2023 on the file of Senior Civil
Judge and JMFC, at Sira is set-aside and the
judgment and decree passed by the Trial
Court in O.S.No.37/2008 dated 28.11.2014 on
the file of Prl. Civil Judge and JMFC, at Sira is
restored.
Sd/-
(H.P. SANDESH)
JUDGE
RHS
