V. Rudrappa vs V. Nagaraja

H.P. Sandesh, J

This matter is listed for admission. Heard the learned counsel for the appellant and the learned counsel for the respondent.

The main contention of the learned counsel for the appellant is that both the Courts failed to consider the documents of Ex.P.1 and Ex.D.11. The learned counsel contend that Ex.D.11 is very clear that the building which was given to the appellant/defendant is 20 x 25 feet on the northern portion of the property and above the same, first floor entire building was allotted in favour of the appellant. Both the Courts failed to take note of that though 20 x 25 feet was given in respect of ground floor, but entire building which is in existence on the first floor was given to the appellant. The learned counsel also brought to the notice of this Court the recitals of Ex.P.1 and Ex.D.11, under which he claims right in respect of the property. The learned counsel contend that both the Courts have committed an error in directing the appellant to handover the possession of the premises to the respondent/plaintiff in coming to the conclusion that he was under permissive possession and the very observation is erroneous and directing to pay the damages of Rs.500/- per month from the date of suit till handing over the vacant possession of the suit property is also not correct.

Per contra, the learned counsel for the respondent would contend that the Court has to take note of the documents of Ex.P.1 and Ex.D.11. It is not in dispute that both the documents are executed by the mother of the appellant and the respondent. Ex.P.1 gift deed is in favour of the plaintiff and the same was executed in 2007. The learned counsel contend that Ex.D.11 registered gift deed was executed in the year 2003. The learned counsel brought to the notice of this Court the recitals made in Ex.D.11 and the same is specific that the gift deed was executed in respect of 20 x 25 feet of the southern portion of the property and the recitals is clear with regard to the very same measurement the building which was in the first floor was given to the appellant and not the entire extent of the building, which is in existence on the first floor as contended by the appellant. The learned counsel contend that both the Courts have taken note of the same. The learned counsel brought to the notice of this Court the discussion made in paragraph No.17 of the Trial Court judgment as well as the discussion made in paragraph No.21 of the Appellate Court. The learned counsel referring these two paragraphs would contend that both the Courts have not committed any error and given the reasoning and also given the fact finding in respect of the very claim made by the appellant and hence the question of framing any substantial question of law does not arise.

Having heard the learned counsel for the appellant and the learned counsel for the respondent, it is not in dispute that the entire property belongs to the mother of the appellant and the respondent and the same is emerged during the course of evidence also. It is important to note that it is the case of the respondent/plaintiff before the Trial Court that permissive possession was given in respect of portion of first floor of the premises, which was allotted in favour of the plaintiff. The learned counsel for the respondent also brought to the notice of this Court the averments made in the written statement, particularly in paragraph Nos.10 and 11, wherein specific pleading was made by the appellant that the extent of property which was gifted to him was 20 x 25 feet both in the ground floor and first floor with all rights attached to it. In paragraph No.11, it is also pleaded with regard to the execution of the gift deed in favour of the plaintiff to an extent of east to west 20 feet and north to south 15 feet. The suggestion made to P.W.1 is also brought to the notice of this Court as well as the admission given by the appellant that his claim is title in respect of 20 x 25 feet in respect of both ground floor and first floor. When the pleading is very clear and admission is also very clear, the submission of the learned counsel for the appellant that the entire first floor was given cannot be accepted. The Court has to look into the document of Ex.D.11, under which the appellant claims, wherein it is specifically mentioned as 20 x 25 feet in ground floor as well as in first floor. Both the Courts have taken note of the documentary evidence available on record, particularly Ex.P.1 and Ex.D.11 and also the evidence available on record.

It is rightly pointed out by the learned counsel for the respondent that fact finding was given by both the Courts considering both oral and documentary evidence placed on record and the very contention of the learned counsel for the appellant that entire first floor building was given to the appellant cannot be accepted and both oral and documentary evidence placed on record not supports the claim of the appellant. The Trial Court in paragraph No.17 discussed with regard to the claim made by the appellant herein and the Appellate Court in paragraph No.21 also discussed in detail and considering the material available on record, particularly taken note of the recitals made in Ex.P.1 i.e., sakala kattada that means, the building in respect of ground floor and first floor in respect of the portion of the property is allotted in favour of the respondent/plaintiff. The recitals in Ex.D.11 is very clear that 20 x 25 feet in respect of ground and first floor building, the gift was made in favour of the appellant. Hence, I do not find any error committed by both the Courts in considering the material available on record and the finding also given on both oral and documentary evidence placed on record and no dispute to that aspect.

At this stage, the learned counsel for the appellant submits that the respondent cannot claim any right in respect of northern staircase. The question of claiming northern staircase from the respondent/plaintiff does not arise, since the northern portion was allotted in favour of the appellant and the southern portion of the property 15 x 20 feet is the subject matter of this appeal and hence the question of clarifying the same also does not arise since the plaintiff is also not claiming the same and only the appellant has to handover the possession as directed by the Trial Court.

In view of the discussions made above, I pass the following:

ORDER

The appeal is dismissed.