Research › Search › Judgment

Karnataka High Court · body

2014 DIGILAW 1058 (KAR)

Thimmajamma v. Jayamma

2014-12-09

H.G.RAMESH

body2014
JUDGMENT HULUVADI G. RAMESH, J. 1. This is a plaintiffs appeal aggrieved by the order of the lower Appellate Court reversing the findings of the trial Court. 2. Heard the learned counsel for the respective parties. 3. The substantial question of law framed on 22.7.2010 is as under:- “Whether the lower appellate court was justified in reversing the judgment of the trial court and in the process, did not take in to consideration the gift deed as well as there venue records produced by the plaintiffs to show that the plaintiffs are in possession of the suit property?” 4. The two substantial questions of law that would also arise for consideration in the appeal are with respect to proof of gift deed under Section 68 of the Evidence Act and whether the suit filed for permanent injunction and declaration should have been in the form of suit for possession. The suit is filed for possession claiming that the respondents are in possession and as such, the suit for permanent injunction and declaration is not maintainable. 5. It appears that there are gift deeds both in favour of the plaintiffs as well as defendants by their ancestor one Anjinappa who had two sisters in whose favour the gift deeds are executed. One of the defendant has got northern portion and the plaintiffs has got southern portion of the property. The suit was filed for declaration and permanent injunction by the plaintiffs before the trial Court which came to be decreed. Being aggrieved by the same, the defendants filed R.A. No. 72 of 2008 on the ground that as per Section 68 of the Evidence Act the gift deed has not been proved and the Appellate Court has reversed the finding of the trial Court. Hence, appellants/plaintiffs filed this second appeal. 6. Being aggrieved by the same, the defendants filed R.A. No. 72 of 2008 on the ground that as per Section 68 of the Evidence Act the gift deed has not been proved and the Appellate Court has reversed the finding of the trial Court. Hence, appellants/plaintiffs filed this second appeal. 6. So far as the maintainability of the application under Section 68 is concerned, the appellants/plaintiffs relied open the decision of the Apex Court in the case of Surendra Kumar vs. Nathulal, AIR 2001 SC 2040 with regard to Section 123 of the transfer of property Act and Section 68 of the Evidence Act wherein it is held that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. 7. In the case on hand, there is no dispute with regard to execution of gift deed in favour of the plaintiffs by the executant. There is a gift deed in favour of the plaintiffs as admitted in their cross-examination. The ground raised by the defendants is that the suit filed seeking for declaration and injunction is not maintainable as they have not sought for possession. However, the same has been denied by the plaintiffs contending that the property has been partitioned during the year 1934 by way of gift deed. However, the Revenue Authority have entered the names of the defendants in the revenue records. The Revenue Authority having entered the names of the defendants, if there is any clarification, application has to be filed before the Tahsildar who has to take note of the same. Accordingly, it is contended that the plaintiffs are in possession and enjoyment of the property in question. So far as the gift deed is concerned, as per the ratio laid down by the Apex Court in Surendra Kumar vs. Nathulal, AIR 2001 SC 2040 case the defendants denied the execution of the gift deed in favour of the plaintiffs and also contended that non-examination of witnesses would be of no consequence. 8. So far as the gift deed is concerned, as per the ratio laid down by the Apex Court in Surendra Kumar vs. Nathulal, AIR 2001 SC 2040 case the defendants denied the execution of the gift deed in favour of the plaintiffs and also contended that non-examination of witnesses would be of no consequence. 8. So far as possession and enjoyment is concerned, according to the learned counsel for the respondents, the suit is not maintainable and the defendants are in possession, for which the answer of the plaintiffs is that the gift deed has been executed during the year 1934 and that the revenue authorities have not entered their names in the revenue records, instead, the 7th defendant colluding with others has entered their names. Hence, the question of seeking possession does not arise. It appears as submitted by the learned counsel for the appellants, they are only seeking for rectification of the revenue entries made in favour of the defendants as the property in question belong to the plaintiffs as per the gift deed executed in the year 1934. 9. The learned counsel for the respondents/defendants relied upon the decision of the Apex Court in the case of Ram Saran and Another vs. Smt. Ganga Devi, AIR 1972 SC 2685 where it is held that when the defendants are in possession of some of the properties and that the plaintiffs in his suit does not seek possession of those properties, but merely claims a declaration, such suit is not maintainable. The learned counsel also relied upon the decision of the Apex Court in the case of Kumud Ranjan Banerjee vs. Manabendra Banerjee, AIR 1974 Calcutta 342 (V 61 C 80) with regard to seeking declaration and injunction and not possession. 10. While allowing the appeal by setting aside the order of the lower Appellate Court, it is hereby ordered to the 7th respondent Tahsildar to consider the case of the plaintiffs/ appellants based on the gift deed executed during the year 1934 in their favour as well as under Section 90 of the Evidence Act and to make necessary entries in the revenue records in the name of the plaintiffs as the gift deed having originated and registered way back in the year 1934 and the certified copy issued from the custody of the revenue authority is necessarily an authentic document, being an old document. 11. 11. Hence, it is for the 7th respondent Tahsildar to make necessary entries in favour of the plaintiffs. Ordered accordingly. Parties to bear their own costs in this appeal.