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2019 DIGILAW 1394 (KAR)

Rohidas @ Ravi v. Pramod

2019-06-24

P.G.M.PATIL

body2019
JUDGMENT : P.G.M. Patil, J. The defendants being aggrieved by the judgment and decree dated 6.6.2017, passed in O.S.No.111/2013, on the file of Prl. Civil Judge, Karwar, and the judgment and decree dated 16.3.2018, passed in R.A.No.32/2017, on the file of Addl. Senior Civil Judge, Karwar, have filed this regular second appeal. 2. The status of the parties is referred to as per their ranking before the trial Court. 3. The appellants herein are the defendants before the trial Court and appellants before the lower appellate Court. The respondent herein is the plaintiff No.1 before the trial Court and respondent before the lower appellate Court. 4. The plaintiffs No.1 and 2 filed a suit in O.S.No.111/2013 for the relief of declaration and possession to declare that plaintiff No.1 is the absolute owner of the suit schedule property by virtue of gift deed dated 3.10.2011 executed by plaintiff No.2 and for delivery of possession of the property from the defendants. It is the case of the plaintiff No.1 that the suit schedule property was self acquired property of plaintiff No.2 who is none other than the father of plaintiff No.1. Plaintiff No.2 purchased the said property from its erstwhile owner Sri Balachandra Laxman Shetty by way of registered sale deed dated 1.2.1980 for valuable consideration of Rs. 20,000/-. Thereafter the said land was converted into non agricultural land. Plaintiff No.2 was in service in police department and after his retirement he got repaired the suit house and was residing with his children, plaintiff No.1, Subhas and defendant No.1. During his old age plaintiff No.2 wanted to make arrangement and settlement of his self acquired property. Accordingly he executed a gift deed in favour of plaintiff No.1 which was duly registered on 3.10.2011. In pursuance of the gift deed, mutation was effected in the name of plaintiff No.1 in the records. Defendant No.1 is staying in the suit house. He pleaded with the plaintiffs to continue him in the suit house temporarily for some time. On the request of defendant No.1, plaintiff No.1 allowed him to stay in the suit house purely on permissible basis. Subsequently defendant No.1 went on seeking time to vacate and started showing his colour by refusing to vacate the suit house and also started ascertaining his ownership. Therefore plaintiff No.1 got issued legal notice to defendants on 10.5.2013. The defendants did not comply the said notice. Subsequently defendant No.1 went on seeking time to vacate and started showing his colour by refusing to vacate the suit house and also started ascertaining his ownership. Therefore plaintiff No.1 got issued legal notice to defendants on 10.5.2013. The defendants did not comply the said notice. Therefore the plaintiffs filed the said suit for the aforesaid reliefs. 5. In pursuance of suit summons, defendants No.1 and 2, the husband and wife appeared before the trial Court and filed the written statement contending that the suit is not maintainable. The defendants are staying in the suit house belonging to plaintiff No.2 who is father of defendant No.1. They have denied that plaintiff No.1 is the present owner of the suit house. Plaintiff No.1 might have played the role of fraud of gift deed as his father was aged 92 years and not in a fitness of mind. Defendant No.1 has got equal share in the property of plaintiff No.2. The alleged gift deed is created by the plaintiffs in order to deceive the defendants. Plaintiff No.1 is a retired person who served in Food Corporation and constructed a house at Hubballi. Defendant No.1 is working on daily wage basis and defendant No.2 is the housewife. The suit is frivolous and is liable to be dismissed. 6. On the basis of the pleadings of the parties, the trial Court framed the issues. In order to prove their respective contentions, plaintiff No.1 got examined himself as PW.1 and also got examined one witness as PW.2 and got marked 11 documents as Ex.P.1 to P.11. The defendants No.1 and 2 got examined themselves as DW.1 and 2 and no documents were produced. The Judge of the trial Court after hearing both the parties, decreed the suit. It was declared that plaintiff No.1 is the absolute owner of the suit schedule property by virtue of the gift deed dated 3.10.2011 executed by plaintiff No.2 and further the defendants were directed to vacate and hand over the possession of the suit property to plaintiff No.1 within two months from the date of order. 7. Being aggrieved by the impugned judgment and decree, defendants No.1 and 2 filed R.A.No.32/2017, on the file of Addl. Senior Civil Judge, Karwar. 7. Being aggrieved by the impugned judgment and decree, defendants No.1 and 2 filed R.A.No.32/2017, on the file of Addl. Senior Civil Judge, Karwar. The appellate Court secured the records and heard both the counsels appearing for the parties and dismissed the said appeal by judgment dated 16.3.2018 and confirmed the judgment and decree passed by the trial Court. The application filed by the appellants under section 27 read with section 151 of CPC was also dismissed. 8. The defendants being aggrieved by both the impugned judgment and decrees, have filed the present regular second appeal. 9. Heard the learned counsel for the appellants and respondent, on admission. 10. The learned counsel for the appellants submitted that the suit schedule property is the self acquired property of plaintiff No.2, father of plaintiff No.1 and defendants No.1. Defendants No.1 and 2 have been residing in the middle portion of the house since 1980 and plaintiff No.1 without the knowledge of defendants has got executed a gift deed from plaintiff No.2. It is further contended that defendant No.1 being the son is having share in the suit property and that the gift deed executed by plaintiff No.2 is not a valid document. Further the learned counsel for the appellants submitted that the findings recorded by the trial Court and the lower appellate Court are not proper and has resulted in miscarriage of justice. Therefore there is a substantial question of law which arises for consideration in this appeal. 11. Per contra, the learned counsel for the respondent submitted that absolutely there is no question of law which arises in the present appeal. Plaintiff No.2 who has executed the gift deed in favour of plaintiff No.1 was party to the suit and he has supported the case of the plaintiff No.1 and admitted execution of the gift deed dated 3.10.2011 which was produced before the trial Court and marked as Ex.P.1. Therefore the contention of the defendants that plaintiff No.1 has created the gift deed without the knowledge of defendants and that plaintiff No.2 is an old aged person and not in a fitness of mind cannot be accepted and therefore the appeal is liable to be dismissed. 12. The relationship between the parties is not disputed. It is also not disputed that the defendants are residing in the suit house. 12. The relationship between the parties is not disputed. It is also not disputed that the defendants are residing in the suit house. The defendants have also clearly admitted that the suit schedule property was purchased by plaintiff No.2 from its erstwhile owner one Balachandra Laxman Shetty on 1.2.1980 and therefore the said property is self acquired and absolute property of plaintiff No.2. When this is an admitted fact, defendants cannot contend that defendant No.1 is having a share in the suit property which is absolute property of his father. Defendant No.1 would claim share in the said property only after the death of plaintiff No.2 dying intestate. 13. On the other hand, plaintiff No.2 has executed a registered gift deed in favour of plaintiff No.1 on 3.10.2011 and consequently mutation has been effected in the name of plaintiff No.1. Defendant No.1 has not challenged the said gift deed before the competent Court and the said gift deed is not declared by any competent Court as null and void on any of the grounds. Moreover, plaintiff No.2 joined plaintiff No.1 in the suit in which the relief of declaration was sought to declare plaintiff No.1 as the absolute owner of the suit schedule property by virtue of the said gift deed. Therefore all along plaintiff No.2 admitted the execution of the gift deed in favour of plaintiff No.1. 14. The trial Court considering the evidence of the parties and the documents produced including the original gift deed at Ex.P.1, declared that plaintiff No.1 is the absolute owner of the suit schedule property by virtue of the said gift deed and therefore the defendants were directed to vacate and deliver possession of the suit schedule property to plaintiff No.1. 15. The lower appellate Court has also considered the material on record in this regard and has held that the contention of the defendants cannot be accepted. The lower appellate Court has referred the evidence of DW.1 namely defendant No.1 who has admitted before the trial Court that plaintiff No.2 has executed the gift deed in favour of plaintiff No.1 in respect of the suit schedule property. It is also admitted that the suit schedule property is the absolute property of plaintiff No.2. 16. The lower appellate Court has referred the evidence of DW.1 namely defendant No.1 who has admitted before the trial Court that plaintiff No.2 has executed the gift deed in favour of plaintiff No.1 in respect of the suit schedule property. It is also admitted that the suit schedule property is the absolute property of plaintiff No.2. 16. Under these circumstances, this Court holds that the appellants/defendants No.1 and 2 have not at all made out any substantial question of law which arises for consideration in the present appeal. Therefore the appeal being devoid of merit is liable to be dismissed. Accordingly the appeal is dismissed. 17. The parties are directed to bear their own costs.