Second Appeal dismissed. The High Court stayed admission, ruling that concurrent findings on fraud regarding a gift deed and lack of possession were not erroneous, holding no substantial question of law arose under Section 100 CPC.
The regular second appeal is dismissed. I.A. if any disposed of.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
NC: 2024:KHC:26768 RSA No. 538 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.538 OF 2018 (DEC/INJ)
BETWEEN:
SRI JAYAPPA
SINCE DEAD BY HIS LRS
Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA
SL.NO.A1 AND A2 ARE R/AT KADIGANAHALLI VILLAGE, BETTAHALASOOR POST JALA HOBLI, BANGALORE NORTH TALUK BENGALURU-562 157
DEVANAHALLI TALUK BANGALORE RURAL DISTRICT-562110
A1 TO A5 ARE REPRESENTED BY THEIR SPA HOLDER SRI HANUMANTHAPPA S/O LATE CHIKKAVENKATAPPA AGED ABOUT 65 YEARS, R/AT OBADEVANAHALLI VILLAGE, SHIVAPURA POST, DODDABALLAPURA TALUK BANGALORE RURAL DISTRICT-561 203
…APPELLANTS
(BY SRI VIJAYA SHEKARA GOWDA V, ADVOCATE)
AND:
SRI. T RAMAIAH SINCE DEAD BY HIS LRS
SL.NO.R1 TO R4 AND R6 ARE, R/AT KADIGANAHALLI VILLAGE, BETTAHALASOOR POST, JALA HOBLI BANGALROE NORTH TALUK BENGALURU -562 110
…RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 11.12.2017 PASSED IN R.A.NO.15045/2016 ON THE FILE OF THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE, DEVANAHALLI AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T
This appeal is listed for admission. Heard the
learned counsel appearing for the appellant.
concurrent finding of both the Courts.
He had worldly knowledge having political affiliation, who used to induce the plaintiff to do necessary things for the development of his land and he has induced the plaintiff that he being the scheduled caste community, the plaintiff will get free borewell from the Government and asked the plaintiff to execute some papers to enable him to get sanction of borewell in the suit schedule property. In order to get the katha and pahani into his name, the defendant filed a false application before the Tahsildar claiming that he has purchased the suit schedule property under sale deed dated 20.03.1982 in the written argument in RRT. Dispute No.8/1994-95 before the Tahsildar, Bengaluru North Taluk (Addl.) on 10.04.1996, the defendant disclosed that he acquired the property through gift deed dated 20.03.1982 alleged to have been executed by the plaintiff in favour of the defendant. The Tahsildar without going to the merits of the case, has passed an order on 20.04.1996 allowing the application of the plaintiff to change the khata and pahani in his name. the plaintiff preferred an appeal before the Assistant
Commissioner in R.A.No.24/1996 which is now pending and the order of the Tahsildar has been stayed. It is further contend that the plaintiff at no point of time has executed any registered gift deed in favour of the defendant. The gift deed is a false, fabricated and concocted document to knock of the suit schedule property. The gift deed is never acted upon. The plaintiff is in possession and enjoyment of the suit schedule property and there was no need to execute the gift deed in favour of the defendant and the same has been obtained by playing fraud.
there being any force or fraud executed gift deed and hence, gift deed is a valid gift deed and revenue entries also changed in his favour hence, the defendant become the absolute owner of the suit schedule property. The plaintiff is in permissive possession of one gunta of land wherein he has constructed a house. The said one gunta of land is also covered under gift deed dated 20.03.1982 in favour of the defendant. The defendant has dug a borewell by spending huge amount not by the plaintiff and hence, the defendant is in possession of the property. During the pendency of the suit, both the plaintiff and the defendant reported to be dead and their legal representatives were brought on record.
and not binding on the plaintiffs. Being aggrieved by the judgment and decree of the Trial Court, an appeal was preferred by the legal representatives of deceased defendant No.1 in R.A.No.15045/2016. The First Appellate Court having considered the grounds urged in the appeal memo and also considering both oral and documentary evidence placed on record framed the points for consideration. The First Appellate Court having reassessed the material available on record answered Point No.1 as affirmative in coming to the conclusion that the plaintiff proves his title and possession of suit property and answered Point No.2 as negative in coming to the conclusion that the defendant has not proved that the plaintiff sold suit schedule property by way of gift deed to avoid fragmentation bar and dismissed the appeal and confirmed the judgment and decree of the Trial Court. Being aggrieved by the concurrent findings of both the Courts, the present second appeal is filed before this Court.
NC: 2024:KHC:26768 RSA No. 538 of 2018
appearing for the appellants that both the Courts have committed an error in coming to the conclusion that gift deed was obtained fraudulently. The counsel would vehemently contend that the appellants have been totally deprived and deceived and as well as respondent No.2 herein is a bona fide purchaser of the suit schedule property from these appellants under a sale deed dated 07.11.2007 and she was not given opportunity to contest the matter on merits of the case and the reasoning given by the Trial Court that sale deed is hit by principles of law
of lis pendence is erroneous. Hence, this Court has to frame the substantial questions of law and admit the appeal. The counsel would vehemently contend that both the Courts have lost sight on the issue of limitation since gift deed was executed in the year 1982 and suit was filed in the year 1998 and without applying mind comes to the conclusion that the suit is within time. Hence, it requires interference of this Court.
the appellants and also on perusal of the material available on record it discloses that in the plaint the original plaintiff has pleaded that gift deed is obtained playing fraud and misrepresentation and signatures were taken mentioning that he would get benefit. The Trial Court having considered both oral and documentary evidence placed on record, decreed the suit of the plaintiff in part and declared that gift deed dated 20.03.1982 is null and void and not binding on the plaintiffs. The First Appellate Court, in paragraph 18 of the judgment, an observation is made that one of the legal representative of the deceased plaintiff has been examined as PW1 whereas the legal representatives of deceased defendant has not entered into witness box, on the contrary, PA holder is examined as DW1. The First Appellate Court taking into note of material available on record comes to the conclusion that DW1 is son-in-law of deceased defendant and DW1, in the year 1993, married the daughter of late defendant – Jayappa and he has clearly deposed that he does not know
what are the transactions entered between the original plaintiff and defendant but only he contend that there is a recital about the receipt of sum of Rs.1,000/- by the plaintiff from the defendant. By going through the recital of Ex.P1, nowhere find such details. Even Trial Court also considering the material available on record and comes to the conclusion that none of the attesting witnesses have examined to prove the fact that gift deed was voluntarily executed by the executant. If really the plaintiff had executed the gift deed, possession would have been delivered to the defendant. Except getting change the documents of revenue records into the name of the defendant, nothing is placed on record to show that defendant is in possession.
execute the gift deed in respect of the ancestral property. The First Appellate Court also having taken note of both oral and documentary evidence placed on record comes to the conclusion that children of deceased defendant were not stepped into the witness box and only examined sonin-law of deceased defendant and he was not having any personal knowledge about the alleged transaction. The First Appellate Court also taken note of the fact that DW1 got married in the year 1993, but alleged gift deed is of the year 1982 and even attesting witnesses have not been examined. Even First Appellate Court also in detail discussed the material available on record and comes to the conclusion that by playing fraud and misrepresentation only, document of gift deed came into existence and also comes to the conclusion that defendant also failed to establish that on the basis of Ex.P1-Gift Deed, the original defendant came in possession of the suit schedule property. On the other hand, the legal representatives deceased plaintiff have produced the documents to establish the fact that they are in possession and
enjoyment of the disputed property. Even with regard to the possession is concerned, definite finding is given holding that possession is continued. When such being the case, when the defendant pleaded that there was a gift deed, he has not established the possession as well as the circumstances under which the gift deed came into
existence and same is also has not been proved by examining attesting witnesses. Both the Courts having considered both oral and documentary evidence placed on record given fact finding that the defendants have failed to prove that the gift deed was voluntarily executed document. On the other hand, the plaintiffs have proved that gift deed came into existence by playing fraud and misrepresentation. When said fact finding is given by both the Courts, the very contention of the counsel for the appellants that both the Courts have misread the pleadings and not applied the mind while passing the order cannot be accepted. Hence, I do not find any grounds to admit the second appeal and frame substantial questions of law invoking Section 100 of CPC.
NC: 2024:KHC:26768 RSA No. 538 of 2018
the following:
ORDER
The regular second appeal is dismissed.
In view of dismissal of the main appeal, I.A. if any,
does not survive for consideration and the same stands
disposed of.
Sd/JUDGE
SN
3 issues framed by the court
Whether the Second Appellate Court committed an error in finding that the gift deed was obtained through fraud and misrepresentation.
Whether the Second Appellate Court erred in concluding that the appellants failed to establish possession under the gift deed.
Whether the findings of both lower courts regarding the nullity of the gift deed are justified under Section 100 CPC.
Smt. Akkayamma
Smt. Venkatamma
Smt. Padmavathi
Smt. Shanthamma
Smt. Nelamma
Smt. Narayanamma
H.P. Sandesh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
