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Judgment
S.N. Satyanarayana, J.—Plaintiff in O.S. No. 297/1992 on the file of the Civil Judge (Jr. Dn.) Raibag has come up in this second appeal impugning the concurrent findings of both the Courts below in dismissing his suit for declaration and permanent injunction. The case of the plaintiff is that, he is adopted son of one Basappa Dhor and that the suit schedule properties are the properties of his father Basappa which was given to defendant No. 1 by one Smt. Tayawwa claiming herself to be the wife of deceased Basappa Dhor. According to the plaintiff, Tayawwa is a stranger and she was not the wife of plaintiff''s adopted father Basappa and therefore, the gift deed which she has executed on 22.02.1943 in favour of defendant No. 1 is not valid and the same is required to be declared as null and void, consequently an order of permanent injunction is required to be granted to protect his alleged possession and cultivation of the suit schedule properties which are totally three items of landed properties and one residential property with two anna share and as well as right to draw water from the well.
In the said suit, on service of summons defendant No. 1 who is the beneficiary under the registered gift deed dated 22.02.1943 filed written statement and contested the suit. Though defendant Nos. 2 and 3 were arraigned as parties, they did not contest the suit. In the written statement, defendant No. 1 took up a defence that the original owner of the suit land Basappa Dhor had two wives by name Rayawwa and Tayawwa. Sofar as Tayawwa is concerned, she was taken care by defendant No. 1 and his father. Hence, she has bequeathed suit schedule land in favour of defendant No. 1 under registered gift deed dated 22.02.1943 and as such he has been in possession and cultivation of the said land since 1943 as the sole owner thereof. In the said suit based on the aforesaid pleadings, following issues were framed.
i) Whether the plaintiff proves that Basappa Dhor and Rayawwa had no issues and plaintiff is taken in adoption by Smt. Rayawwa Basappa Dhor in the year 1943?
ii) Whether plaintiff proves that he is in lawful possession and enjoyment of the suit property as on the date of filing of this suit?
iii) Whether plaintiff proves that Tayawwa was not the wife of deceased Basappa and gift deed executed by her on 22.02.1943 is bogus?
iv) Whether plaintiff proves that the gift deed dated 22.02.1943 in favour of defendant is bogus, null and void so not binding on the plaintiff?
v) Whether defendant No. 1 proves that suit of the plaintiff is barred by limitation as alleged in his W.S. in para No. 2?
vi) Whether defendant No. 1 proves that the suit of the plaintiff in the present form is not maintainable as alleged in the beginning of para 2 of his W.S.?
vii) Whether this Court has got pecuniary jurisdiction to try this suti?
viii) Whether defendant No. 1 proves that the suit property were under the ownership of Smt. Tayawwa W/o. Basappa Dhor and she executed gift deed in his favour of suit properties?
ix) Whether defendant No. 1 proves that the deceased Basappa had two wives namely Tayawwa and Rayawwa?
x) Whether defendant No. 1 proves that there is no cause of action for this suit?
xi) Whether defendant No. 1 proves that plaintiff is stopped from denying the title of this defendant over the suit properties?
xii) What decree or order?
In support of the case of plaintiff, he examined himself as P.W. 1 and owner of adjacent land namely, Revappa Ghulappa Pujari of the same village as P.W. 2. In all he produced 12 documents which are marked as Exs. P1 to P12. In the said proceedings, defendant No. 1 examined himself as D.W. 1 and an independent witness was examined as D.W. 2 by name Vishne Shivrudra Mawalkar to substantiate his defence. In the said proceedings, defendant produced in all 20 documents, which are marked as Exs. D1 to D20. Based on this, the trial Court proceeded to answer issue No. 1 regarding adoption of the plaintiff by the widow of Basappa namely Rayawwa was accepted by answering point No. 1 in the affirmative. Sofar as contention of the plaintiff that he was in lawful possession of the suit property prior to the filing of the suit and that Tayawwa was not the wife of deceased Basappa and gift deed dated 22.02.1943 is bogus document and the same is not binding on defendants were held in the negative. Sofar as defence raised by defendant No. 1 regarding suit being barred by limitation and the suit is not maintainable for the reason that the Court has no jurisdiction, were held in the affirmative, so also the issue which was raised regarding ownership of Tayawwa over the suit schedule property and execution of the gift deed bequeathing the suit property in favour of defendant No. 1 was held in the affirmative. Similarly, Basappa having two wives by name, Tayawwa and Rayawwa was also held in the affirmative. With this, it is seen that plaintiff''s suit is dismissed holding that there was no cause of action for filing of the suit by the plaintiff and that he has no right to deny the title of defendant No. 1 to suit schedule property. With this it is clearly seen that, all the issues which are framed placing burden on the plaintiff to establish his suit claim are held against him and the defence raised by defendant No. 1 in claiming that the suit schedule property was the property of Tayawwa, which she has bequeathed in favour of defendant No. 1 by gift deed dated 22.02.1943 is held to be proved.
While discussing the said issue and giving a finding thereon, the trial Court has also relied upon the documents which were produced by defendant No. 1 in a suit which was earlier filed by him in O.S. No. 598/1989 against the plaintiff herein for the relief of permanent injunction in respect of very same properties, which is said to be decreed in his favour. At this juncture, it is also necessary to mention that the suit which was filed by defendant No. 1 in O.S. No. 598/1989 was decreed and the appeal which was filed by defendant in the said suit who is plaintiff in regular appeal was also dismissed. As against which, an appeal was filed by him in RSA No. 5683/2010, which was also filed against the concurrent findings of both the Courts below came to be dismissed by judgment dated 12.01.2015. While decreeing the suit in O.S. No. 598/1989, the Court below held that the gift deed which was executed by Tayawwa in favour of defendant No. 1 on 22.02.1943 was produced and marked as Ex. P35 in the said proceedings, wherein, it is observed that the plaintiff in O.S. No. 598/1989, who is defendant No. 1 in this proceeding has established not only his title to the suit property but also his possession and cultivation and enjoyment of the property from the year 1943. With this it is clearly seen that the plaintiff has miserably failed to establish that Tayawwa was not the wife and she was not the owner of the suit schedule property and that the suit schedule property continued to be in his possession till the date of filing of the present suit and that he is entitled for the relief of seeking declaration that the gift deed dated 22.02.1943 is bogus document and he is entitled to the relief of permanent injunction. Consequently, suit filed by the plaintiff is dismissed which was taken up in appeal in R.A. No. 243/2008. In R.A. No. 243/2008, the lower appellate Court has framed following points for consideration.
i) Whether plaintiff had proved his possession over the suit properties?
ii) Whether plaintiff has proved that Tayawwa was not the wife of deceased Basappa and gift deed executed by Tayawwa dated 22.02.1943 in favour of defendant is bogus?
iii) Whether suit of the plaintiff is barred by limitation?
iv) Whether defendant has proved that deceased Tayawwa has executed gift deed in his favour and by virtue of the same he is having title over the suit properties and he has been in possession of the same?
v) Whether trial court is justified in dismissing the suit?
vi) Whether the interference is required by this court in the impugned judgment and decree?
vii) What order?
The lower appellate Court by securing the records of the trial Court and on re-appreciation of the pleadings, oral and documentary evidence available on record, point Nos. 1 and 2 and 6 which were framed to decide whether he was in possession of the suit property, whether he has proved that Tayawwa was not the wife of deceased Basappa and the gift deed dated 22.02.1943 is bogus document and with reference to the need for interference of the lower appellate Court in the judgment impugned were answered in the negative. While doing so, the finding of the trial Court regarding suit is barred by limitation and the defendant No. 1 proving the execution of the gift deed by Tayawwa in his favour and he being in possession, cultivation and enjoyment of the same and also whether the trial Court judgment requires justification were answered in the affirmative and consequently appeal filed by the plaintiff before the lower appellate Court was dismissed. As against the concurrent findings of both the Courts below, this second appeal is filed by the plaintiff.
Heard the learned counsel for the appellants, perused the judgments of both the Courts below and also the finding rendered by the trial Court on issue Nos. 1 to 11 and the findings of the lower appellate Court on point Nos. 1 to 6. On going through the same, it is clearly seen that both the Courts below have taken proper care to appreciate the pleadings, oral and documentary evidence available on record, not only in O.S. No. 297/1992 filed by the appellant herein as plaintiff, but also the documents pertaining to O.S. No. 598/1989, which was filed by defendant No. 1 against the plaintiff for the relief of permanent injunction, which is decreed in his favour and also the finding of the lower appellate Court on the said judgment. In that view of the matter, this Court find no grounds are made out to admit this second appeal, inasmuch as no substantial question of law arises for consideration in this second appeal. Accordingly, this second appeal filed by the plaintiff in O.S. No. 297/1992 does not merit admission and the same is dismissed.