Kotrayya and Others vs Fakeerayya and Others

B. Veerappa, J.—This is an unsuccessful plaintiffs'' RSA against the judgment and decree dated 5.11.2011 made in R.A. No. 75/2007 on the file of the Addl. Senior Civil Judge, Haven, confirming the judgment and decree dated 16.07.2007 made in O.S. No. 162/1995 on the file of the learned Principal Civil Judge (Jr. Dn), Haven, dismissing the suit for bare injunction.

The plaintiffs filed the suit for permanent injunction against the defendants for permanent injunction contending that the suit schedule property situated at Mardur village which is the house property situated at Fakkiraswamy Matada Oni bearing Panchayat No. 124. One Puttayya Fakkirayya was the original owner of the suit schedule property and the said Puttayya Fakkirayya is the uncle of plaintiff having no children. The plaintiff in his younger age grown up in the protection and care of the said Puttayya and thereafter he looked after the suit schedule property and the other properties of Puttayya. Therefore, on 22.1.1969 the said Puttayya and his wife executed a gift deed in respect of the suit schedule property and another landed property bearing No. 106 in favour of plaintiff and since then the plaintiff and his family members were residing in the suit schedule property. The wife of Puttayya, namely, Shantavva died on 22.5.1979 and Puttayya died on 22.8.94. On 31.3.1995 the mutation order made by canceling the name of Puttayya and since then plaintiff has become the owner of the suit schedule property. The defendant claiming that he is the adopted son of deceased Puttayya started interfering with the possession of the suit schedule property and he also threatened of using criminal force. Therefore, the plaintiff was constrained to file the suit.

The 3rd defendant filed his written statement, categorically denied the entire plaint averments and contended that the suit property number is wrongly mentioned and actually the plaintiff and his family members were resided at Guttal village permanently and the 3rd defendant who is the adopted son of Puttayya residing in the suit schedule property. The adoption deed executed was executed on 25.6.1984 and the alleged gift deed is obtained by deceiving the Puttayya and denied the cause of action and interference. The value of the suit property is more than Rs. 30,000/-, whereas the court fee has not been properly paid and the plaintiff fails to seek the relief of declaration. Hence, the suit for permanent injunction is not maintainable and sought for dismissal of the suit.

On the basis of the pleadings, the trial court framed the following issues and additional issues:

"ISSUES

Whether the plaintiff proves that he is the absolute owner of suit property and he was in lawful possession of suit property as on the date of the suit?

Whether the plaintiff further proves that the alleged interference by the defendants into his peaceful possession and enjoyment over suit property?

Whether the plaintiff is entitled for the reliefs as prayed?

What order.

Additional Issue

Whether the plaintiff proves that he is the absolute owner of suit property in pursuance of gift deed executed by puttayya on 22.1.1969?"

During the pendency of the suit plaintiff died and his LRs are brought on record. One of the plaintiffs, namely Chandrashekharayya is examined as PW.1 and witnesses as PWs.2 to 5 and marked documents as Ex. 1 TO P.17. The defendant No. 3 is examined as D.W.1 and witnesses as DWs.2 to 4 and got marked the documents as Ex. D.1 to D.16.

After considering both oral and documentary evidence on record, the trial court recorded a specific finding that the plaintiff failed to prove that he is the absolute owner in lawful possession of suit property as on the date of the suit and failed to prove the alleged interference by the defendants and therefore, he is not entitled to any relief sought for. Accordingly, the trial court dismissed the suit.

Aggrieved by the said judgment and decree, the plaintiff filed R.A. 75/2007 on the file of the Addl. Senior Civil Judge, Haven, who after hearing both the parties by his impugned judgment and decree dated 5.11.2011 dismissed the appeal and confirmed the judgment and decree of the trial court.

Against the said concurrent findings of facts recorded by the courts below did not deter the appellants from preferring the present Regular Second Appeal as the last ditch attempt against the defendants.

I have heard the learned Counsel for the parties to the lis.

Sri D.V. Pattar appearing for Sri. A.S. Patil, learned Counsel for appellants has contended that the courts below erred in not considering the material documents Ex. P.1 to P. 17 and evidence of PWs.1 to 3 which clearly depicts that the plaintiff has proved his possession as on the date of the suit. Therefore, he sought to set-aside the impugned judgment and decree of the courts below.

Per contra, Sri N.P. Vivek Mehta, learned Counsel for respondent No. 2 has sought to justify the impugned judgment and decree of the courts below.

I have given my anxious consideration to the arguments advanced by the learned Counsel for the parties to the lis and perused the entire material on record.

The substance of the case of the plaintiff is that, according to him one Puttayya executed a registered gift deed on 22.1.1969 in his favour and he is in possession of the property and his name was entered in the revenue records on 31.3.1995, which reflects that he is in possession and enjoyment of the same. Defendant No. 3 has filed written statement and denied the alleged gift deed executed by Puttayya and specifically contended that Puttayya has not executed any gift deed whereas the defendant is the adopted son of Puttayya and adoption deed is executed on 25.6.1984 and he is in possession and enjoyment of the suit schedule property as on the date of the suit. The trial court considering the entire material on record has recorded a finding that the crucial fact is that the plaintiff is claiming son and the donee. He has not given proper evidence on the gift deed dated 22.01.1969 and stated that he is not known about the gift deed and his father knows about it and the original gift deed is lost in ram water and he also admitted that the gift deed does not mention about the possession given to the plaintiff and he does not remember that the deceased Puttayya and Shantavva grown up the plaintiff According to the witnesses mutation was made in the year 1969 whereas in the plaint suggest that after death of Puttayya mutation was made in the documents. The contents of Ex. D.1 specifically stated as under:

The said recitals clearly shows that till the death of Puttayya and Shantawa the plaintiff has not accrued any right over the suit schedule property. Even though the plaintiff has pleaded in the plaint that he has become absolute owner in possession of the suit schedule property after the death of Puttayya. Therefore, it requires that the plaintiff has to prove the gift deed.

PW.1, the plaintiffs son deposed that his father enjoyed the property as an owner since 23.2.1983 and whereas the same is not corroborated through the document. PW.2 who is Sub-Registrar, Haven, has deposed about the registration of gift deed and he was not present during the execution of Ex. P.1. So the document Ex. P.1 is not registered in his presence. The validity of registration is also not corroborated through this witness and admittedly the plaintiff has not examined any other witness to prove the factom of registration of gift deed.

It is worthwhile to mention that Section 122 of the Transfer of Property Act wherein the ''gift'' is defined as under:

"Gift" is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee.

Acceptance when to be made-Such acceptance must be made during the lifetime of the donor and while he is still capable of giving.

If the donee dies before acceptance, the gift is void."

A plain reading of the definition of ''Gift'' clearly indicate that the gift should be voluntarily and without consideration and is to be accepted by and on behalf of donee and acceptance must be made during the life time of donor while he is still capable of giving and if donee dies before acceptance the gift is void. The acceptance is essential and acceptance must be before the death of donor and the onus of proving acceptance is on the plaintiff Considering the Ex. P.1 and Ex. P.2 which clearly indicates that there is no consideration. However, there is joint possession by the donor and donee, which reads as under:

It shows during the life time of Puttayya the possession of Kotrayya cannot be considered as acceptance because till the lifetime of Puttayya and his wife, are the owners and also possessors of the suit schedule property and the possession of Kotrayya is on condition that it will executes only after the death of both Puttayya and his wife. So it is in the nature/character of Will where the act of acceptance is silenced. Whereas the word specified the right, title and interest in the document but both should be vested in the donee, whereas in the present case not only the possession the right also vested with the deceased Puttayya/donor till his death. Ex. P.3 corroborates this mutation order dated 31.3.95 made only after the death of Puttayya and not during his life time. Therefore, Ex. P.1 and P.2 does not have the nature of gift deed. Its condition gives a colour of Will and admittedly the plaintiff has produced the secondary document contending that the original document was lost. Where and how it was lost, there is no proof and the gift deed must be a voluntary transfer of property without any consideration. The recitals of the document shows that it is without consideration and it is voluntary. Whereas it was accepted by the donee or in regard of the same there is no specific evidence. The recitals of Ex. P.1 and P.2 specifies the transfer of possession will be executed only after the death. So the condition says the gifted property was enjoyed by the donor. During the life time of donor, the title, interest retained by the donor. The transfer of the same was conditional and acceptance was silent as already stated above. Ex. P.4 is dated 20.4.1994 prior to the death of Puttayya. Ex. P.5 is dated 30.5.1995. It refers to the prior to the death of the donor. However, the contention of the plaintiff is the gift deed executed on 22.1.1969 and since then itself plaintiff is in possession of the property. But there is no single document to corroborate the said contention. Plaintiff died on 26.1.2002 (Ex. P.7). Exhibits P.14 and 15 are the death extracts of the witness to the gift deed. Both the Counsel rely upon the voters'' list to prove the possession. Ex. P.12 is the voters'' list for the period of 2004. It shows the plaintiffs were resided in the House No. 124 at Maradur. Ex. P.13 is the voter''s list of Maradur for the year 1993. It shows the plaintiff and his family members resided at Maradur Kanavallimath Puttayya deceased donor. The defendant No. 3 examined as D.W.1 has stated on oath that deceased Kotrayya also called as Channayya Math. Ex. P.13(a) truly shows they are not resided at the suit property, but he specifies it refers to prior to the adoption but after execution of the adoption deed he has not given the application for including his name in the suit property.

PWs.3 and 4 have deposed that the plaintiff was residing in the suit schedule property. However, in the cross-examination PW.3 has stated that after the death of Puttayya his wife Shantavva died and as per the contention of the plaintiff and defendant Shantawa died much prior to the death of Puttayya. PW.4 has deposed about the gift deed and possession of the suit property. In the cross-examination he has admitted that he is not aware of the execution of the adoption deed. The 3rd defendant examined as DW.1 and deposed as his written statement disputing the gift deed and possession of the plaintiff in the suit schedule property, contending that the plaintiff filed O.S. No. 246/95 questioning the adoption deed wherein the suit decreed in his favour declaring that he is the adopted son of deceased Puttayya. Since from the execution of the adoption deed he is residing with the deceased Puttayya i.e. from 22.6.1984 and produced the document Ex. D.2-the tax register extract which shows it is in respect of other property of deceased Puttayya. The properties changed in the name of Kotrayya. Ex. D.3 is the order copy for mutation. Ex. D.4 is tax paid receipt which is dated 28.2.1995. Ex. D.5 tax receipt dated 2.1.96. Both Ex. D.4 and D.5 refers to after the death of Puttayya. Ex. D.6 is an endorsement showing the suit filed in regard of Door No. 2087. so it corroborates the plaintiff has not given the identify of the suit property specifically. Exhibits D.7, D.8 are the Voter''s list. Ex. D.7 is the Voter''s list dated 16.6.94 and it shows the plaintiff and his family members were resided at Guttal and it corroborates after the death of Puttayya plaintiffs were not resided at Maradur. Ex. D.8 is for the period 16.9.1995 showing the defendants resided at Maradur corroborating that after the death of Puttayya the defendants were in possession of the suit property. Exhibits D.9 to Ex. D.14 also corroborate that the plaintiff resided at Guttal village and hiving his own properties. Ex. D.12 shows the wife of deceased Puttayya died on 22.5.1979. Ex. D.16 is the judgment and decree of O.S. No. 246/95.

It is also not in disputed that in O.S. No. 246/95 filed by the present plaintiff for declaration and injunction on the basis of the will for declaration and consequential injunction in respect of the agricultural lands and in the said suit there was issue No. 2 to the effect that whether the defendant No. 3 Rudrayya is adopted son of Puttayya and ultimately the trial court dismissed the suit and recorded a finding that the present defendant No. 3 was adopted son of Puttayya. The said judgment and decree made in O.S.246/95 is final and conclusive. Therefore, on the basis of the said material the trial court dismissed the suit.

On re-appreciation of the entire material on record, the lower appellate court concurred with the finding of the fact recorded by the trial court and recorded a finding that in Ex. P.2 gift deed dated 22.01.1969 the recitals are as follows:

In view of the said averments it is clear that the plaintiff was not in actual possession of suit property on the basis of Ex. P.2. As per the pleadings plaintiff was residing with Puttayya. Puttayya adopted defendant No. 3 on 22.6.1984 and the said Rudrayya was in possession of the suit property along with Puttayya. Therefore, the story set-up by the plaintiff pertaining to the fact that he was residing along with Puttayya during his life time does not arise.

The appellate Court also recorded a finding that PW.1 in the cross-examination has admitted that, he does not know the gift deed was executed in the name of his father on 22.1.1969 and the said fact is known by his father and he was not present at the time of execution of Ex. P.2 and he was acquired the knowledge through his father in respect of facts that the gift deed was damaged and he was not born in the year 1962 and also admitted that, the gift deed does not disclose in respect of delivery of possession and further admitted that, his father has paid tax since from gift deed. He also admitted that, O.S. No. 246/1995 is pending and the market value of suit property is Rs. 60,000/- as on the date of the suit. Therefore, PW.1 has no knowledge in respect of alleged gift deed and plaintiff claims his title on the basis of gift deed. PW.1 categorically admitted that a gift deed does not disclose in respect of delivery of possession. PWs. 3 and 4 have specifically admitted in the cross-examination that they have no knowledge in respect of family background and Puttayya died on 22.8.1994 and Shantavva died on 22.5.1979 and they have not stated anything about the possession of the plaintiff. PW.4 has admitted in the cross examination that he does not know Puttayya has taken defendant No. 3 in adoption and further admitted that defendant NO.3 Rudrayya was cultivating the land along with Puttayya and also admitted that mutation of land of Puttayya was effected in the name of Rudrayya in the RTC. Therefore, defendant No. 3 Rudrayya has got effected mutation of landed property in his name and continued in possession of the landed properties. Therefore, defendant No. 3 is in actual possession of the suit property after death of Puttayya.

The lower appellate court also recorded a finding that, Ex. D.16 is the certified copy of judgment and decree passed in O.S. No. 246/1995 wherein the present plaintiff has filed the suit in O.S. No. 245/1995 against the present defendant No. 3 and one Sangayya. In the said suit plaintiff claimed that deceased Puttayya has executed a will deed on 23.2.1983 in respect of RS. No. 7/1 measuring 35 guntas and RS. No. 8/3 measuring 1 acre 38 guntas situated at Maradur village of Haven Taluk and in the said suit present defendant No. 3 took a defence that he is the adopted son of Puttayya and adoption was taken place on 22.6.1984 and the learned Judge held the issue No. 2 in the affirmative holding that defendant No. 3 was the adopted son of Puttayya. But the said finding has reached finality since no appeal was filed. Therefore, the case of defendant No. 3 probablises that he is the adopted son of deceased Puttayya and he was residing with deceased Puttayya as adoptive son, Therefore, the lower appellate court dismissed the appeal and confirmed the judgment and decree of the trial court.

When the plaintiff filed suit for injunction he has to produce material documents to prove his lawful possession as on the date of the suit. The plaintiff mainly relied upon Ex. P.2 Gift Deed dated 22.1.1969, which is not proved as held by the courts below concurrently and PW.1 has not given proper evidence on the said document, he has stated on oath that he is not known about the gift deed and his father knows about it and the original gift deed was lost in ram water and suit filed for permanent injunction, and both the courts below recorded a finding that the plaintiff has not established the identity of the suit property in question. Admittedly the said gift deed was not acted upon till the death of executant Puttayya and recitals of the document clearly indicates that possession was not delivered and mutation was made only on 3.13.1995. The plaintiff has not produced any material documents as to when he took possession of the suit property and the earlier suit filed by the very plaintiff against defendant No. 3 in O.S.246/1995 as per Ex. D.16. The trial court after enquiry has recorded a finding that defendant No. 3 Rudrayya who was the adopted son of Puttayya and he was in possession and enjoyment of the suit property along with the adoptive parents. The said finding recorded by the trial court under Ex. D.16 was final and conclusive. No material is produced by the plaintiff before court to prove his possession as on the date of the suit, since the suit was filed only for permanent injunction without claiming title and the very possession and title is also disputed by defendant No. 3 by filing written statement stating that he is the adopted son of deceased Puttayya and he is in possession of the suit property.

Both the courts below concurrently held that the plaintiff failed to prove that he is the absolute owner in possession and enjoyment of the suit property as on the date of the suit and failed to prove the alleged interference by the defendants and dismissed the suit filed by the plaintiff The said findings of facts recorded by the courts below are based on the cogent legal evidence on record, that too in respect of the suit for permanent injunction, cannot be interfered with by this Court by exercising power under Section 100 of Code of Civil Procedure. No substantial question of law is involved in the present appeal.

Accordingly, the regular second appeal is dismissed at the stage of admission.