Case Note & Summary
The appellant, Smt. Padmavati Bai (since deceased through LRs), filed a regular second appeal under Section 100 of the Code of Civil Procedure, 1908, challenging the judgment and decree dated 03.11.2008 passed by the Civil Judge (Senior Division), Shorapur in R.A.No.34/2008, which confirmed the judgment and decree dated 19.04.2008 passed by the Civil Judge (Junior Division), Shorapur in O.S.No.17/1997. The original suit was filed by the appellant for cancellation of a gift deed, declaration, rectification of Record of Rights (ROR), and injunction in respect of suit schedule properties bearing Sy.No.115(a) measuring 11 acres 2 guntas situated at M.Bommanahalli, Shorapur Taluk, Yadagiri District. The plaintiff claimed to be the owner of the suit properties and alleged that the defendant, Ushabai, had obtained a gift deed fraudulently without delivery of possession. The trial court dismissed the suit, and the first appellate court confirmed the dismissal. In the second appeal, the High Court examined whether any substantial question of law arose. The court noted that both courts below had concurrently found that the plaintiff failed to prove that the gift deed was not acted upon or that she remained in possession. The High Court held that there was no perversity in the findings and that no substantial question of law was involved. Consequently, the appeal was dismissed, and the judgment and decree of the courts below were confirmed.
Headnote
A) Civil Procedure - Second Appeal - Section 100 CPC - Concurrent Findings of Fact - The High Court in a second appeal cannot interfere with concurrent findings of fact unless they are perverse or based on no evidence. The court found no substantial question of law arising in the appeal. (Paras 1-6)
B) Property Law - Gift Deed - Validity - Delivery of Possession - The plaintiff failed to prove that the gift deed was not acted upon or that she remained in possession. The courts below concurrently held that the gift deed was valid and possession was delivered to the donee. (Paras 2-5)
Issue of Consideration
Whether the judgment and decree of the courts below dismissing the suit for cancellation of gift deed, declaration, rectification of ROR and injunction are perverse and require interference in a second appeal under Section 100 CPC.
Final Decision
The High Court dismissed the second appeal, confirming the judgment and decree of the courts below. No order as to costs.
Law Points
- Second appeal under Section 100 CPC
- concurrent findings of fact
- substantial question of law
- gift deed validity
- delivery of possession
- burden of proof
Case Details
2018 LawText (KAR) (04) 27
Sri Sandeep Vijayakumar (for appellants)
Smt. Padmavati Bai (since deceased through LRs: Vanamala Bai @ Laxmi Bai, Suryakant, Tunga Bai, Geetabai, Seetabai)
Ushabai W/o Raghvendra Rao Nadigar
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Nature of Litigation
Civil suit for cancellation of gift deed, declaration, rectification of ROR and injunction.
Remedy Sought
Appellant sought to set aside the judgment and decree of the lower appellate court and trial court and to allow the suit for cancellation of gift deed, declaration, rectification of ROR and injunction.
Filing Reason
Appellant claimed that the gift deed was obtained fraudulently and that possession was not delivered.
Previous Decisions
Trial court dismissed the suit; first appellate court confirmed the dismissal.
Issues
Whether the courts below erred in dismissing the suit for cancellation of gift deed?
Whether there is any substantial question of law arising in the second appeal?
Submissions/Arguments
Appellant argued that the gift deed was not acted upon and that she remained in possession.
Respondent supported the concurrent findings of the courts below.
Ratio Decidendi
In a second appeal under Section 100 CPC, the High Court cannot interfere with concurrent findings of fact unless they are perverse or based on no evidence. The plaintiff failed to prove that the gift deed was not acted upon or that she remained in possession.
Judgment Excerpts
The unsuccessful plaintiff filed the present regular second appeal against the judgment and decree 03.11.2008 made in R.A.No.34/2008... dismissing the appeal filed by the plaintiff confirming the judgment and decree dated 19.04.2008 made in O.S.No.17/1997... dismissing the suit of the plaintiff for cancellation of gift deed, declaration, rectification of ROR and injunction...
It is the case of the plaintiff that she is the owner of the suit properties...
Both the courts below have concurrently held that the plaintiff has failed to prove that the gift deed was not acted upon and that she remained in possession of the suit properties.
In view of the above, no substantial question of law arises for consideration in this appeal.
Procedural History
The plaintiff filed O.S.No.17/1997 before the Civil Judge (Jr.Dn.), Shorapur for cancellation of gift deed, declaration, rectification of ROR and injunction. The suit was dismissed on 19.04.2008. The plaintiff appealed to the Civil Judge (Sr.Dn.), Shorapur in R.A.No.34/2008, which was dismissed on 03.11.2008. The plaintiff then filed the present regular second appeal under Section 100 CPC before the High Court of Karnataka, Kalaburagi Bench.
Acts & Sections
- Code of Civil Procedure, 1908: Section 100
