IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH
AT HYDERABAD
THE HON’BLE SRI JUSTICE K.C. BHANU
SECOND APPEAL No. 19 OF 2010
JUDGMENT:
This Second Appeal, under Section 100 of the Code of Civil Procedure, 1908 (for short, ‘CPC’) is directed against the judgment and decree, dated 17.06.2002 in A.S.No. 47 of 1999 on the file of the IV Additional District & Sessions Judge (Fast Track Court), Karimnagar, whereunder and whereby the judgment and decree, dated 12.07.1999 made in O.S.No. 143 of 1992 on the file of the Principal Junior Civil Judge, Karimnagar, were confirmed.
2. For better appreciation, the parties are referred to as they are arrayed in the trial Court.
3. The brief facts that are necessary for disposal of the present Appeal may be stated as follows:
The plaintiff filed the suit for declaration of title and grant of perpetual injunction in respect of the house bearing No.7-1-97 at Mankammathota, Karimnagar District. It is stated that the defendant gifted the above said house property to the plaintiff out of love and affection and delivered its vacant possession and since then, the plaintiff has been in possession and enjoyment of the same. It is also stated that the plaintiff has perfected his title by way of adverse possession. The defendant has no right, title or interest over the property. When the plaintiff approached the defendant to get his name mutated in the records, the defendant refused to do so. Hence, the suit.
4. The defendant filed the written statement denying the averments of the plaint. She denied the factum of gifting the property in question and delivery of its vacant possession to the plaintiff. According to her, the plaintiff has not acquired the title by way of adverse possession and hence, she prayed to dismiss the suit.
5. On the basis of the above pleadings, the following issues were settled for trial:
1) Whether the plaintiff is entitled to declaration of title over the suit schedule property?
2) Whether the plaintiff is entitled to permanent injunction as prayed for?
3) To what relief?
6. To substantiate his case, the plaintiff examined four witnesses and got marked seven documents. On behalf of the defendant, one witness was examined and five documents were marked. Exs.C1 to C3 were marked through Court.
7. The trial Court, upon appreciation of the evidence on record, came to the conclusion that the plaintiff has failed to produce any material in proof of oral gift and claim of adverse possession and accordingly, dismissed the suit, by the judgment dated 12.07.1999. On appeal, the 1st appellate Court, by its judgment dated 17.06.2002, confirmed the judgment and decree passed by the trial Court. Challenging the same, the present Second Appeal is filed.
8. Heard both sides.
9. The substantial question of law in the Second Appeal as formulated by the appellant herein is, whether the lower appellate Court is correct in not framing proper issue and whether the Courts below are justified in refusing to grant the relief of perpetual injunction.
10. There cannot be any dispute that the Second Appeal under Section 100 CPC, is not a matter of course. Even if a question of law is involved, it cannot be a ground to admit the appeal. The appellant must show that there is a substantial question of law involved in the appeal. Then only, the question of admission would arise.
11. The suit is based upon the oral gift allegedly made by the defendant in favour of the plaintiff.
12. The learned counsel for the respondent-defendant contended that the oral gift is not admissible and that the gift deed must be a written one. In support of his contention, he relied upon a judgment of the Supreme Court in Smt. Gomtibai v. Mattulal[1], wherein it has been held as under:
“ Thus, it is seen that the gift of immovable property should be made only for transferring the right title and interest by the donor to the donee by a registered instrument signed by or on behalf of the donor and must be attested by at least two witnesses. The pre-existing right, title and interest of donor thereby stand divested in the donee by operation of Section 17 of the Registration Act only when the gift deed is duly registered and thereafter the donor would lose title to the property. It must also be proved that the donee had accepted the property gifted over under the instrument. In this case, though the transfer of gift was acted upon by Kasturibai as per the correspondence and evidence on record, but, admittedly, there is no written instrument executed by donor, namely, the plaintiff and the defendant in favour of their cousin sister Kasturibai and it was got attested by at least two witnesses and registered in accordance with the provisions of the Stamp Act and the Registration Act. In the absence of compliance of these formalities, at best what could be seen from the partition deed is that the original plaintiff and the defendant have expressed their intention to gift over the land to their cousin sister Kasturibai. As held earlier, in the absence of any registered instrument of gift and acceptance thereof by the donee, the said property could not be said to have been legally transferred in favour of their cousin sister, in other words, gift is not complete in the eye of law.”
13. From the above judgment, it is clear that in the absence of any registered instrument of gift executed by the donor and the acceptance thereof by the donee, the property could not have been legally transferred in favour of the proposed donee. The record is silent as to the date on which the alleged oral gift was made by the defendant in favour of the plaintiff and when the plaintiff was put in possession of the plaint schedule property. In the absence of any evidence, the oral gift cannot be accepted. Perhaps, that is the reason why the trial Court as well as the 1st lower appellate Court has disbelieved the evidence of the plaintiff with regard to the oral gift of the property to him. That finding is based upon proper appreciation of the evidence on record.
14. It is contended by the learned counsel for the appellant that the 1st appellate Court has not formulated the points for determination. Only one point was formulated by the 1stappellate Court i.e. whether the appeal could be allowed and the judgment and decree passed by the trial Court could be set aside. On this aspect, the learned counsel for the respondent relied upon a decision reported in Kunju Kesavan v. M.M. Philip[2] , wherein it has been held as follows:
“ …………The parties went to trial, fully understanding the central fact whether the succession as laid down in the Ezhava Act applied to Bhagavathi Valli or not. The absence of an issue, therefore, did not lead to a mis-trial sufficient to vitiate the decision.”
15. Though points have not been formulated for consideration, the 1st appellate Court has elaborately discussed and considered the entire evidence on record, including the judgment of the trial Court. The 1st appellate Court has also taken into consideration the fact that there was no document executed in favour of the plaintiff, gifting the house by the defendant and unless there is a document executed by the donor gifting the property to the donee, it cannot be said that the property was gifted. Therefore, on proper appreciation of the evidence on record, the trial Court as well as the 1st appellate Court rightly decided the issue involved in the matter. In view of the fact that the plaintiff has failed to establish his title in respect of the plaint schedule property, the question of declaration of title with regard to the said property, does not arise.
16. No doubt, the plaintiff is not entitled to plead adverse possession, by virtue of an oral gift. Adverse possession cannot be pleaded when a person is claiming title to the property, but it can only be claimed against the property of others. Even assuming that the plaintiff is in possession of the property and perfected his title by adverse possession, still he is under an obligation to establish that, to the knowledge of the defendant, he had been in continuous and uninterrupted possession of the property for over 12 years. Except Exs.A5 to A7, tax receipts for the years 1995 to 1998, the plaintiff has not filed any single document to show that he perfected his title in respect of the property by adverse possession.
17. Therefore, there are absolutely no grounds to interfere with the judgments under challenge, in view of the fact that there is no question of law, much less substantial question of law involved in this Second Appeal.
18. The Second Appeal is devoid of merit and accordingly, it is dismissed at the stage of admission. No costs.
----------------------
(K. C. BHANU, J)
1st February 2010
ksld
No comments:
Post a Comment