N.V.LAKSHMI v. RENN Y D' LIMA

Appellant is the plaintiff in O.S.No.5030/2005. Being aggrieved by the judgment and decree dated 9-4-2007 passed by the V Additional City Civil Judge, at Bangalore wherein the suit filed by the plaintiff was dismissed, the plaintiff has preferred this appeal.

2. The plaintiff had filed a suit seeking for permanent injunction restraining the defendant, her agents or anybody claiming under her from encroaching upon the suit schedule property or putting up any construction therein. The case of the plaintiff is that the land bearing No.40/1-8, Katha No.76, Ward No.29, situated at Hennur village measuring 45” East to West and 222” North to South consisting of two houses each measuring 500 sq.ft. was gifted by her husband as per the registered Gift Deed dated 10-3-2005. Since the date of gift, she has been in possession and enjoyment of the said property by paying tax to the local authorities. Originally, the suit schedule 3 property belonged to the joint family of her husband. In the family partition in the year 1997, the schedule property was allotted to her husband and the said property was gifted to her as per the registered gift deed dated 10-03-2005. However, the defendant tried to interfere with the said property and put up construction though she has no right whatsoever over the said property. Though the defendant purchased a portion of the property in site No.805, House List No.205/A, situated at Hennur village from one Narayanamma, she has no right to interfere with the suit schedule property. Though she lodged a police complaint against the defendant, the police have not taken any action against the defendant. In view of that, she had filed the suit for the above reliefs.

3. In pursuance to the notice issued by the Trial Court, the defendant entered appearance and filed written statement denying the entire averments made in the plaint and she denied the gift deed as well as the partition deed referred to in the plaint, which are concocted documents. It is the specific case of the defendant that she has purchased a portion of the site bearing Katha No.805 and House List No.205/A situated at Hennur village from Narayanamma on 20th August 1997. The husband of the plaintiff has also singed the 4 said sale deed as an attesting witness. Narayanamma is none other than the plaintiff's mother-in-law. On the basis of the said sale deed, the defendant became the absolute owner and Nagawara Panchayat also changed the katha in her name. The defendant further contended that the suit schedule property and other properties originally belonged to one Muniswamappa who was the husband of Narayanamma. As per the Palupatti dated 21-12-1993, the suit schedule property fell to the share of Muniswamappa and his wife Narayanamma and the said property was sold by Narayanamma to the defendant. Narayanamma's son i.e. Jayaram who is the husband of the plaintiff and another son Krishnamurthy and daughter Chandramma had no objections to execute the sale deed in favour of the defendant. The plaintiff has no right whatsoever in respect of the property purchased by the defendant and sought for dismissal of the suit.

4. On the basis of the pleadings of the parties, the Trial Court framed the following issues: (i) Does the plaintiff proves her lawful possession over the suit schedule property, as on the date of suit? 5 (ii)Does the plaintiff proves interference by the defendant? (iii)What order or decree?

5. The plaintiff in order to prove her case has examined herself as P.W.1 and got marked the documents as Ex.P1 to Ex.P7. On behalf of the defendant, her GPA holder was examined as D.W.1 and he got marked the documents as Ex.D1 to Ex.D14.

6. The Trial Court after considering the arguments addressed by the parties and after considering the oral and documentary evidence let in by the parties held issue No.1 in the negative and issue No.2 does not arise for consideration. Accordingly, by its judgment and decree dated 9-4-2007 dismissed the suit holding that the plaintiff has failed to establish that she is in possession of the suit schedule property. The plaintiff being aggrieved by the judgment and decree dated 9-4-2007 has preferred this appeal.

7. Sri.A.S.Mahesha, learned counsel appearing for the appellant contended that the judgment and decree passed by the Trial Court is contrary to law and the reasoning assigned by the Trial Court to dismiss the suit is also erroneous in law. The gift deed dated 6 10-3-2005 relied upon by the plaintiff is a registered document and only for non-production of the same, the Trial Court has drawn adverse inference and dismissed the suit which is contrary to law. The Trial Court has not critically examined the evidence adduced by the parties and sought for setting aside the same by allowing this appeal.

8. On the other hand, learned counsel appearing for the respondent argued in support of the judgment and decree passed by the Trial Court and also contended that there is no infirmity or irregularity in the said order and sought for dismissal of the same.

9. I have carefully considered the arguments addressed by the learned counsel for the parties.

10. Having heard the learned counsel for the parties, the only point that arise for consideration in this appeal is as to whether the appellant has made out a case to interfere with the judgment and decree passed by the Trial Court?

11. The case of the plaintiff is that as per the registered gift deed 7 dated 10-3-2005 executed by her husband, the plaintiff has become the absolute owner of the suit schedule property. However, the defendant tried to interfere with the same and tried to put up construction. In view of that, she filed a suit. In the examination-in- chief, the plaintiff has reiterated the plaint averments. However she failed to produce either the original gift deed dated 10-3-2005 or the alleged partition deed deed of the year 1997 entered into between the family members of her husband. In the cross-examination she has denied the suggestion made by the defendant and stated that she is not aware of execution of the sale deed by her mother-in-law in favour of the defendant. She was also not aware whether her husband had signed the sale deed as one of the attesting witnesses to the said sale deed or not. On the basis of the said gift deed, some entry has been made and the same has been marked as Ex.P2 to Ex.P6. The Power of Attorney was examined on behalf of the defendant as D.W.1. The GPA Holder in his evidence deposed that the defendant has purchased the property as per the registered sale deed dated 20th August 1997 from Narayanamma who is the mother- in-law of the plaintiff. On the basis of the registered sale deed, mutation entry has been effected by the revenue authorities. In the evidence, he got marked the documents at Ex.D1 to Ex.D14. 8 However, the defendant was not cross-examined by the plaintiff, though an opportunity was given. The Trial Court on the basis of the oral and documentary evidence held that pursuant to the sale deed dated 20th August 1997, the defendant became the absolute owner and the husband of the plaintiff is not the owner of the property, accordingly, he has no right to gift the property in favour of the plaintiff. The mother-in-law of the plaintiff Narayanamma is the absolute owner. Hence, on the basis of the said gift deed, the plaintiff will not get any right. Apart from that though she has claimed right over the suit schedule property on the basis of the gift deed as well as the partition effected in the family of her husband, no document has been produced. On the other hand, the defendant has produced the original sale deed which was attested by the husband of the plaintiff. The sale deed was executed by Narayanamma who is the mother-in-law of the plaintiff. The husband of the plaintiff has no right to execute the Gift deed in favour of the plaintiff in respect of the suit schedule property since he is not the owner of the property. Hence, the plaintiff has not made out a case for grant of decree in her favour. Accordingly, the Trial Court has dismissed the suit.

12. I find that that there is no infirmity or irregularity in the said 9 judgment and decree passed by the court below and the appellant has not made out a case to interfere with the judgment and decree passed by the Trial Court. Accordingly, the appeal is dismissed. Sd/- JUDGE mpk/-*