THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Second Appeal No.1123 of 2011 Date:18th November, 2011 Between: S.Kishore Basha S/o.S.Ramthumeah …Appellant/Appellant/3rd Defendant and 1.Shaik Asia Begum W/o.late Shaik Gouse Peer …Respondent/Respondent/Plaintiff 2.Shaik Khasim Bee W/o.Late Ahemd Basha 3.Shaik Noorjahan W/o.Shaik sulthan ….Respondents/Respondents/Defendants 1 & 2 *** THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Second Appeal No.1123 of 2011 JUDGMENT: This Second Appeal is directed against the judgment and decree, dated 15.04.2011, passed in A.S.No.5 of 2008 on the file of the Judge, Family Court-cum-VI Additional District Judge, Kadapa, whereby and whereunder the learned Additional District Judge dismissed the appeal, confirming the judgment and decree, dated 22.09.2007, passed in O.S.No.332 of 2004 on the file of the Principal Junior Civil Judge, Kadapa. 2. a) The appellant is the 3rd defendant and whereas the 1st respondent is the plaintiff and the respondents 2 and 3 are the defendants 1 and 2 in O.S.No.332 of 2004 on the file of the Principal Junior Civil Judge, Kadapa. The plaintiff filed the suit for declaration of her title and for perpetual injunction against the defendants 1 to 3. It is the case of the plaintiff that the 1st defendant executed a registered gift deed, dated 24.04.2004, in her favour in respect of the suit schedule property and put her in possession of the same. She has been in possession and enjoyment of the suit schedule property since the date of the gift deed, which has been exhibited as Ex.A1. According to the plaintiff, 1st defendant, after the death of her husband, executed a revocation deed, dated 24.05.2004, and thereafter executed a registered gift deed, dated 25.05.2004, in favour of the 2nd defendant. It is the plea of the plaintiff that the cancellation/revocation deed, dated 24.05.2004, and the gift deed, dated 25.05.2004, are not valid in the eye of law. Since a cloud has been created because of the execution of the revocation deed and the gift deed by the 1st respondent, the plaintiff filed the suit for declaration of title and perpetual injunction. b) The 3rd defendant S.Kishore Basha claims to have purchased the property from 2nd defendant under a registered sale deed, dated 23.07.2004, which has been exhibited as Ex.B5. The defendants 1 and 2 filed common written statement and whereas, the 3rd defendant filed separate written statement. It is the plea of the defendants 1 and 2 that the gift deed executed by the 1st defendant in favour of the plaintiff came to be revoked under a document, dated 24.05.2004, and thereafter, the plaintiff has no title to the suit schedule property. They also took the plea that the 2nd defendant acquired the property under registered gift deed executed by the 1st defendant on 25.05.2004 and in turn, the 2nd defendant sold the property in favour of the 3rd defendant under registered sale deed, dated 23.07.2004. The 3rd defendant filed written statement claiming the property under a registered sale deed executed by the 2nd defendant in his favour on 23.07.2004. c) Basing on the above pleadings, the trial Court settled the following issues and additional issues for trial: 1) Whether the Deed, dated 24.05.2005 executed by the 1st defendant canceling the gift deed in favour of the plaintiff is true, valid and binding? 2) Whether plaintiff is in possession and enjoyment of the schedule House? 3) Whether the plaintiff is entitled to permanent injunction? 4) To what relief? Additional Issues: 1) Whether the 3rd defendant is in possession of the suit schedule property by virtue of registered sale deed, dated 23.07.2004 for consideration of Rs.1,45,000? 2) Whether the plaintiff is entitled for a decree against the 3rd defendant? 3) Whether the plaintiff is entitled for a declaration of right, title and interest with respect to the plaint schedule property? d) On behalf of the plaintiff, 4 witnesses were examined as P.W.1 to PW.4 and 7 documents were marked as Exs.A1 to A7. On behalf of the defendants, 5 witnesses were examined as DW.1 to DW.5 and 5 documents were marked as Exs.B1 to B5. e) The trial Court, on appreciation of the evidence brought on record and on hearing the counsel appearing for the parties, came to the conclusion that the 1st defendant executed Ex.A1 registered gift deed in favour of the plaintiff and delivered possession of the property to the plaintiff on the date of registered gift deed. The trial Court further observed that revocation deed, dated 24.05.2004 and registered sale deed, dated 23.07.2004 cannot be acted upon. With these observations, the trial Court decreed the suit of the plaintiff, by judgment and decree, dated 22.09.2007. f) Assailing the judgment and decree, dated 22.09.2007, the 3rd defendant filed A.S.No.5 of 2008 on the file of the Judge, Family Court- cum-VI Additional District Judge, Kadapa. The lower appellate Court, on considering the contentions of the parties, formulated the following points for consideration: i) Whether deed dt. 24.05.05 executed by the 1st defendant canceling the gift deed in favour of the plaintiff is true, valid and binding? ii) Whether the plaintiff is in possession and enjoyment of the schedule house? iii) Whether the plaintiff is entitled to permanent injunction? iv) To what relief? g) The lower appellate Court, on re-appreciation of the evidence brought on record and on hearing the counsel appearing for the parties, came to the conclusion that Ex.A1 gift deed is valid and therefore, revocation deed executed by the 1st defendant on 24.05.2004 is not a valid document and thus, the 2nd defendant has no right and title to execute Ex.B5 registered sale deed in favour of the 3rd defendant/appellant and thereby, the lower appellate Court came to the conclusion that the 3rd defendant/appellant failed to make out any valid ground to interfere with the judgment and decree passed by the trial Court. Accordingly, dismissed the appeal by judgment, dated 15.04.2011. Hence, this Second Appeal. 3. Heard learned counsel appearing for the appellant and perused the judgments of the trial Court as well as the lower appellate Court. 4. Learned counsel appearing for the appellant submits that the trial Court as well as the lower appellate Court failed to appreciate the evidence brought on record in right perspective and thereby erred in decreeing the suit of the plaintiff. 5. I have gone through the judgments of the trial Court as well as the lower appellate Court. DW.1 is the 1st defendant, who executed Ex.A1 registered gift deed in favour of the plaintiff. She admits of her executing a registered gift deed in favour of the plaintiff and also delivery of possession to the plaintiff. This factual aspect has been pointed out by the lower appellate Court in para.15 of the judgment, which reads as hereunder: “15. As the main defence of the 3rd defendant appellant is that 1st defendant did not execute Ex.A.1 voluntarily and her thumb impression was obtained by the plaintiff because of her old age and illiterate. So it is necessary to refer the evidence of the 1st defendant who came to the witness box as a 4th witness as DW.4, in her cross- examination she admitted Ex.A1 gift deed contains her photograph as executant and she further admitted that her thumb impressions are seen in Ex.A.1. PW.2 is her brother. She further admitted that at the time of Ex.A.1 PW.2 and G.Rasool were present and attested, she was asked about the contents of Ex.A.1 by the sub-registrar at the time of registration and the contents of Ex.A.1 are true and correct. She further admitted ever since on the date of Ex.A.1 the schedule property is in possession of the plaintiff. So such is the evidence of 1st defendant the executant of Ex.A.1 supporting the entire claim of the plaintiff that 1st defendant executed Ex.A.1 gift deed voluntarily and delivered possession. Further Ex.A1 title deed i.e., gift deed is filed in court by the plaintiff so no further evidence is required for the proof of Ex.A1 that Ex.A.1 is voluntarily executed by the 1st defendant and there is no misrepresentation and fraud on the part of the plaintiff for execution Ex.A.1.” 6. The plaintiff besides examining herself as PW.1, examined attestors of Ex.A1 gift deed as PWs.2 and 3 and scribe as PW.4. All the witnesses consistently stated that the 1st defendant executed the registered gift deed in favour of the plaintiff on 24.04.2004 and delivered possession of the property to the plaintiff. Even the 1st defendant while being examined as DW.4 admits of her executing registered gift deed and parting the property in favour of the plaintiff. The trial Court as well as the lower appellate Court considered the evidence brought on record in right perspective and recorded a finding that the plaintiff proved her title over the property and also possession. There is no substantial question of law involved in this Second Appeal warranting admission. 7. Accordingly, the Second Appeal is dismissed at the admission stage. No costs. ______________________ B.SESHASAYANA REDDY, J. Date:18th November, 2011. cs THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Second Appeal No.1123 of 2011 Date:18th November, 2011