N.B. Shivkumar v. G.M. Parasuram

HON'BLE SRI JUSTICE A. SHANKAR NARAYANA SECOND APPEAL No.539 OF 2011 JUDGMENT:

The plaintiffs, who are son and father, having been unsuccessful before trial Court and first appellate Court, preferred the present second appeal challenging the judgment and decree, dated 18.01.2011, passed by the learned IV Additional District Judge, Ranga Reddy District in A.S. No.19 of 2007.

2. The appellants herein are plaintiffs in O.S. No.1305 of 2003 on the file of I Additional Senior Civil Judge, Ranga Reddy District at L.B. Nagar, while respondents are defendants.

3. For the sake of convenience, the parties herein are referred to as they were arrayed in the aforesaid suit.

4. The plaintiffs filed suit in O.S. No.1305 of 2003 on the file of the learned I Additional Senior Civil Judge, Ranga Reddy District at L.B. Nagar, for declaration of title of plaintiff No.1 over the house bearing No.27-36/1 raised in plot No.28 of Survey No.357 in an extent of 150 square yards, situated at Subhashnagar, Dhanajiguda, Alwal; for recovery of possession of the same and for mesne profits at the rate of Rs.1,000/- per month from the date of suit till the date of delivery of possession by the defendants.

5. A few facts, which are required for disposal of the present second appeal, are necessary, hence, adverted to.

i) According to the case of the plaintiffs, plaintiff No.2 was allotted plot No.28 by Shivaji Yuvajana Sangam in the year 1998 and he was inducted into possession and, thereafter, he executed a gift settlement, dated 17.11.2003, in favour of his son - plaintiff No.1. On 15.10.2003, when the defendants along with unsocial elements tried to encroach the suit property, plaintiff No.1 alleged to have lodged a complaint with Municipality for taking action. But, due to inaction on the part of the Municipality, they approached the Court seeking the aforesaid reliefs.

6. Defendant No.1 filed his written statement denying the claim of the plaintiffs. The stand taken by defendant No.1 is that the said plot was owned by him originally and he executed a registered sale deed in favour of one Prem Kumar, who has been in possession and enjoyment and, therefore, the suit is bad for non-joinder of necessary parties.

7. Subsequently, defendant Nos.2 and 3 have been impleaded and they adopted the written statement filed by defendant No.1.

8. The trial Court framed the following four issues for trial. "

1) Whether the plaintiffs are the owners of the suit schedule land?

2) Whether plaintiffs are entitled for declaration as prayed for?

3) Whether plaintiffs are entitled for recovery of possession as prayed for?

4) To what relief? "

9. Before the trial Court, plaintiff No.1 besides examining himself as PW.1, has examined plaintiff No.2 (his father) as PW.2, one M.C. Maisaiah as PW.3 and Yadagiri as PW.4, but the trial Court eschewed the evidence of PW.3 for his failure to face crossexamination, and marked Exs.A-1 to A-4, which are gift settlement deed, valuation certificate, office copy of legal notice and certificate. On behalf of the defendants, no evidence, either oral or documentary, was adduced. However, chief-examination of DW.1 is filed, but the same was eschewed from record as he did not make himself available for cross-examination.

10. The learned trial Court having heard the arguments on behalf of both sides dismissed the suit without costs. The trial Court while holding issue No.1 against the plaintiffs found that no boundaries have been mentioned in Ex.A-4 - Certificate said to have been issued by Shivaji Yuvajana Sangam, basing on which, gift settlement deed was executed by plaintiff No.2 in favour of plaintiff No.1 under Ex.A-1. Besides the same, the trial Court noticed that Ex.A-4 does not contain the extent of plot and registered sale deed was not obtained by plaintiff No.2 concerning the suit property and, therefore, when the source of title is not traced out and just basing on the gift settlement under Ex.A-1 executed by plaintiff No.2 in favour of plaintiff No.1, it cannot be said that valid title was vested with plaintiff No.2 and conveyed the same to plaintiff No.1. The trial Court also found that PW.4 also admitted in his cross-examination

that the defendants constructed a house over the property 17 years ago and thereby held that the plaintiffs failed to prove their case over the suit property and, therefore, recorded such finding and, consequently, held other issues also against the plaintiff and dismissed the suit, by judgment, dated 24.10.2006.

11. Aggrieved by the same, the plaintiffs preferred Appeal Suit No.19 of 2007 before the IV Additional District Judge, Ranga Reddy District at L.B. Nagar. The learned appellate Court has formulated the following points as required under Order XLI Rule 31 of the Code of Civil Procedure, 1908.

"

I. Whether the first plaintiff is entitled to declaration that he is the owner of the suit property?

II. Whether the plaintiffs are entitled to recover the suit property?

III. To what relief? "

12. The appellate Court mainly observing that a certificate, like Ex.A-4 does not create title to the property and without there-being a valid title deed in favour of plaintiff No.2, no valid title would have conveyed under gift deed in faovur of his son (plaintiff No.1) under Ex.A-1, refused to agree with the submission of the learned counsel for the plaintiffs to draw an adverse inference under Section 114 of the Indian Evidence Act, holding that the ruling in Vidhyadhar v. Manik Rao and another1 on the ground that the ratio is inapplicable in view of the fact that entire burden rests on plaintiff No.2 to prove

his case and they failed to prove the same and, thus, dismissed the appeal by the judgment, dated 18.01.2011.

13. Heard Sri K.S. Murthy, learned counsel for the appellants - plaintiffs, and Sri V. Ramchander Goud, learned counsel for the respondents.

14. Perused the evidence on record, both, oral and documentary and other material. In fact, when concurrent findings have been recorded by the Courts below, certainly, no interference is warranted unless the findings recorded by the Courts below are patently perverse. In that direction when examined the case of the plaintiffs and the arguments advanced by the learned counsel for the appellants, certainly, it has to be held that the Courts below have not committed any illegality in appreciating the evidence on record and recording the findings. While recording the findings the Courts below resorted to process of appreciation of evidence available on record that when no title at all was conveyed to plaintiff No.2, certainly, nothing flows under Ex.A-1 - gift deed made by plaintiff No.2 in favour of plaintiff No.1, and it appears only to create a claim over the suit property.

15. Further, the answers given by PW.4 would certainly condemn the case of the plaintiffs for the reason that 17 years even prior to his examination or prior to filing the suit itself, the defendants have constructed a house over the suit property. It is no doubt true, no

1. (1999) 3 SCC 573

evidence was let in by the defendants and even DW.1's chiefexamination was eschewed, but just basing on that ground, certainly, it cannot be said that the plaintiffs can succeed in discharging the entire burden resting on them to substantiate their case for declaration of title and for recovery of possession, in which direction, there is absolutely nothing on their side. Therefore, no substantial questions of law worth the name would arise for formulation in the present second appeal.

16. The present Second Appeal is, accordingly, dismissed at the admission stage confirming the judgment and decree passed by the learned appellant Court. There is no order as to costs. As a sequel thereto, miscellaneous applications, if any pending in the second appeal, stand closed.

___________________________ A. SHANKAR NARAYANA, J June 22, 2017.

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