Maktumsab vs Rudrappa Amrutappa Navalgund and Others

S.N. Satyanarayana, J.

The plaintiff in O.S. No. 32/2003 on the file of Civil Judge (Jr. Dn.), Navalgund, has come up in this second appeal impugning the finding of the lower appellate Court in dismissing his suit for declaration and consequently granting the relief of possession to the defendant by allowing his counter claim which was not considered by the trial Court.

The brief facts leading to this second appeal are that the appellant Maktumsab is plaintiff in O.S. No. 32/2003 which was filed for the relief of declaration and permanent injunction against one Rudrappa Amrutappa Navalgund on the basis that the suit schedule property is his absolute property which he has acquired under a gift deed from his maternal uncle as if he was his adopted son. According to plaintiff, the suit schedule property i.e., property bearing CTS No. 678/B measuring 68 sq. yards is situated in Annigeri village of Navalgund taluk and the same was belonging to his maternal uncle Noorsab Kondannavar.

According to plaintiff the suit property along with another property situated adjacent to it belonged to the father of Noorsab Kondannavar, which he had acquired under a registered sale deed. After the death of Noorsab''s father the property which was acquired by him was divided between his two sons, of which one portion came to the share of Noorsab Kondannavar who is maternal uncle of Maktumsab i.e., his mother''s elder sister''s husband.

It is also his case that his maternal aunt and uncle did not have any issues and they were taking care of him as their own son and they intended to take him in adoption and accordingly in expression of their love and affection towards him, Noorsab gifted the suit schedule property in his favour under a unregistered gift deed dated 3.2.1975 and that he was put in possession of the property on the very same day. Since then he has been in possession and enjoyment of the suit property. It is also his case that the original defendant Rudrappa Amrutappa Navalgund started disturbing his possession and enjoyment of the suit schedule property claiming that he has purchased the suit schedule property under a registered sale deed dated 27.4.1982 from a person who is said to have acquired the suit schedule property from Noorsab Kondannavar under registered sale deed dated 10.3.1975.

In the said suit the defendant Rudrappa Amrutappa Navalgund entered appearance, filed written statement denying alleged gift deed said to have executed on 3.2.1975 from Noorsab in favour of plaintiff Maktumsab and also his alleged possession pursuant to the said gift deed. In the defence it was stated that Maktumsab had a sister by name Davalbi, when she was pregnant, she came to the house of Maktumsab for confinement, hence at the request of his mother P.W. 3 in the trial Court, they were permitted to stay in the suit schedule property. Thereafter they refused to vacate the same and in the meanwhile they got the gift deed dated 3.2.1975 created and on the basis of the created document, tried to assert their title to suit property as beneficiary under the said gift.

In the said suit counter claim was also made by the defendant namely Rudrappa Amrutappa Navalgund that the trial Court should secure vacant possession of suit schedule property to him from the plaintiff. In the said suit the plaintiff adduced evidence in support of the issues framed in the said suit and also got two witnesses examined. One of them is his mother Mahaboobi and another person is one Ajimnaik Naikwadi who is one of the persons residing in the locality where the suit property is situated. On behalf of the defendant/counter claimant he got examined himself as D.W. 1 and also got examined two other witnesses namely Basappa Mallappa Haladotar and Pandappa Dyavanur who were witnesses to the sale deed of schedule property executed in favour of the defendant.

In the said proceedings the document of substance which was relied upon by the parties is the registered sale deed executed by Noorsab to the defendant''s predecessor in title and the sale deed executed by defendant''s predecessor in title to the defendant. In support of his title to the suit property, plaintiff relied upon the gift deed said to have executed on 3.2.1975 and also the registered adoption deed under which the plaintiff was adopted by the deceased Noorsab.

The trial Court while assessing the pleading and evidence has observed that the plaintiff was not able to demonstrate execution of gift deed of suit property in his favour and consequential delivery of possession of said property pursuant to alleged gift. It was also observed that the evidence adduced through P.Ws. 1 to 3 being tutored in as much as the witnesses 2 and 3 did not withstand the cross examination in supporting the title of plaintiff pursuant to the alleged gift deed dated 3.2.1975. In as much as they were not in a position to say the date of death of Noorsab and the date of document executed delivering possession to the plaintiff. Hence the suit of the plaintiff for declaration was rejected. However considering the fact that possession of plaintiff to suit property being established an order of injunction was granted. While doing so, the trial Court did not accept the theory of the defendant providing possession of suit schedule property to plaintiff''s family by way of permissive possession and the same was ignored resulting in dismissal of counter claim.

It is seen that the plaintiff who lost his suit for declaration did not challenge the same by filing an appeal and he accepted it. However the defendant who lost his prayer for counter claim i.e., the right to seek possession of suit property from the plaintiff proceeded to file an appeal in R.A. No. 14/2006 on the file of I Addl. Civil Judge (Sr. Dn.), Dharwad, sitting at Navalgund. In the said appeal, on re-appreciation of pleadings, oral and documentary evidence available on record the lower appellate Court set aside the judgment and decree passed by the trial Court so far as it pertains to rejection of defendant''s prayer for possession in his counter claim. Consequently the appeal was allowed and counter claim of defendant was allowed.

It is necessary to place on record that the original defendant Rudrappa had died during the pendency of the original suit itself. It is seen that the defendant who was alive till disposal of the appeal in the lower appellate Court had died subsequently. The appellant herein who is plaintiff in the original suit having lost his right to continue in possession of the suit property has preferred this second appeal.

This second appeal has come up for admission in the presence of learned counsel Sri Suresh P. Hudedagaddi as counsel appearing for appellant and Sri S.K. Kayakamath, counsel appearing for respondents who are the legal heirs of original defendant.

Heard the learned counsels, perused the judgment of both the Courts below and also pleadings, oral and documentary evidence available on record. On going through the same it is seen that the appellant herein who is the plaintiff in the original suit has lost his prayer for declaration of his alleged title to the suit property in the original suit itself. Thereafter he has not pursued the same by filing an appeal, therefore the said judgment and decree declining to accept the gift deed said to have executed by Noorsab in favour of plaintiff on 3.2.1975 has reached finality in the trial Court itself. Therefore what was lost by him in the lower appellate Court is only right to continue in the suit property on the basis of permanent injunction which was granted to him in the trial Court.

The learned counsel for the appellant tried to substantiate that the lower appellate Court has committed an error in allowing the appeal filed by the defendant in setting aside the judgment and decree passed by the trial Court on the counter claim, in as much as the said relief could not have been granted in the absence of his mother Mahaboobi not being a party to the proceedings no order of eviction can be passed against her. According to him the defence of the original defendant Rudrappa being that plaintiff''s mother Mahaboobi was permitted to continue in possession of the suit property during the period when her daughter had come to her house for confinement. Therefore in the absence of said lady, the prayer for possession could not have been considered.

However when this Court went through the judgment of both the Courts below, it is clearly seen that in the proceedings before the trial Court Mahaboobi has tendered evidence as P.W. 3 in support of the case of the plaintiff and in the said proceedings she has denied that she was put in possession of the suit property by original defendant. It is her case that she has been continuing in the suit property by virtue of the gift deed that was executed by her brother-in-law Noorsab in favour of her son Maktumsab, the plaintiff in the original suit.

In that view of the matter it is seen that the lower appellate Court has rightly allowed the appeal in R.A. No. 14/2006 holding that the plaintiff in the original suit is not entitled to continue in possession of the suit property. So far as non arraigning plaintiff''s mother as a party is not of any consequence, for the reason that the said lady while adducing evidence as P.W. 3 in support of her son plaintiff and P.W. 1 in the said suit she has categorically denied as being put in possession of the property by the defendant.

In that view of the matter when the title of the defendant to suit property is accepted under registered sale deed vide Exs. D.1 and D.2, what follows is the owner securing possession of the suit property pursuant to the title deed under which he has purchased the property. Admittedly in the suit both the plaintiff who was P.W. 1 in the trial Court and his mother who is P.W. 3 have consistently stated that it is only the plaintiff who is in possession of the suit property pursuant to the gift deed. In that view of the matter question of holding that the appeal filed by the defendant in the original suit in R.A. No. 14/2006 is not maintainable in the absence of Mahaboobi as party to the said proceedings cannot be accepted and the same does not find favour with this Court.

In that view of the matter when title of the defendant to suit property is accepted, it is natural for the lower appellate Court to order for delivery of possession of suit property to him pursuant to acceptance of his title to the suit property.

In that view of the matter this Court find no justifiable grounds are made out to admit this second appeal to consider the correctness or otherwise of the finding rendered by the lower appellate Court on reversing the finding of the trial Court with reference to counter claim of the defendant. Therefore this Court find no grounds are made out to admit this second appeal in as much no substantial question of law also arises for consideration in this second appeal. Accordingly the same is dismissed.