THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT NO.1744 OF 2001 Date: 07-02-2011 Between: Papudippu Malleswara Reddy and others .. Appellants And Kuppala Chennamma and others .. Respondents THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT NO.1744 OF 2001 JUDGMENT: The appeal is filed by the plaintiffs in O.S.No. 45 of 1998 on the file of the Senior Civil Judge, Kadapa dismissing the suit of the plaintiffs for declaration of title to the property and for injunction. 2. The allegations in the plaint go to show that the suit schedule properties were gifted by the mother of the plaintiffs 1 to 4 on 11.07.1984. The properties exclusively belonged to her. The plaintiffs 1 to 4 have been in possession and enjoyment of the said properties. The defendants, having no manner of right, were threatening to interfere with the possession and enjoyment of the plaintiffs 1 to 4. 3. Defendants 1 to 3 remained ex parte and defendants 4 to 7 came on record. The defendants 4 to 6 filed written statement contending that the suit is a collusive one between the plaintiffs and defendants 1 to 3. The allegation that the plaint schedule properties belonged to the mother of the plaintiffs 1 to 4 is not admitted, that according to the defendants, the suit lands were comprised in the Inam Village of Putlampalli, and originally belonged to Inamdar Kasim Khan alias Chinna Kareem Khan, who died leaving his son, Nadhad Khan alias Yousuf Jai, who inherited the estate after the death of Piram Khan; that the Inam Village was taken over during the lifetime of Nadhad Khan alias Yousuf Jai and he had been in possession and enjoyment of the same without any let or hindrance or obstruction from others; that Nadhad Khan alias Yousuf Jai died leaving a daughter, Mariam Bi, the 4th defendant’s son, Ibrahim Khan Yousuf Jai, upon whom the suit lands were devolved after the death the Nadhad Khan; Ibrahim Khan Yousuf Jai had sold his 2/3rd share in the suit property to his sister, Karim Bi namely, the 4th defendant and she having procured title to the entire property, has been in actual possession and enjoyment of the same paying circar cist for the lands and continues to be the true owner of the suit lands, that the 4th defendant has executed an agreement of sale in favour of defendant Nos.5 and 6 and all of them sold the land to 7th defendant; that the plaintiffs are aware of the above fact and the suit is, therefore, not maintainable and the valuation is also not proper. The 7th defendant also claimed rights in the property by virtue of the sale. 4. Pending the suit, the 5th plaintiff came on record as legal representative of the 4th plaintiff. 5. On the basis of the above pleadings, the following issues were framed for trial: 1. Whether the plaintiffs are entitled for declaration of title for the plaint schedule property as prayed for? 2. Whether the plaintiffs are entitled for permanent injunction as prayed for? 3. To what relief? The following additional issues were also framed on 20.04.1992: 1. Whether this Court has jurisdiction to try the suit? 2. To what relief. 6. On behalf of the plaintiffs, P.Ws.1 to 3 were examined and marked Exs.A-1 to A-28 and on behalf of the defendants, D.Ws.1 and 2 were examined and marked Exs.B-1 to B-14. 7. After considering the material and the evidence on record, the trial court came to the conclusion that the plaintiffs having come to the Court basing on the tile acquired by virtue of the gift deed said to have been executed by their mother, who is the 5th plaintiff, did not prove the document and, therefore, the suit was dismissed. The learned Senior Civil Judge, Kadapa did not decide the question as to whether mother of the plaintiffs 1 to 4, is the real owner or the contesting defendants are the owners of the property. Aggrieved by the dismissal of the suit, the present appeal is filed. 8. The points that arise for consideration are: 1. Whether the dismissal of the suit on the ground that the gift deed was not proved by the plaintiffs is valid and sustainable? 2. Whether the judgment and decree passed by the learned Senior Civil Judge, Kadapa is legal? 3. To what relief? POINTS 1 to 3: 9. According to the counsel for the appellants, the whole approach of the lower Court is not correct and the non-examination of any of the plaintiffs is not fatal and on that ground the suit should not have been dismissed. According to him, P.W.1, who is the father of the plaintiffs 1 to 4, was examined and accordingly he is the elder member of the family and managing the properties and, therefore, his evidence can be taken into consideration to prove the case of the plaintiffs. Therefore, the non-examination of plaintiffs 1 to 4 cannot be a ground to discard the claim of the plaintiffs. 10. On the other hand, learned counsel for the respondents relying on a decision in the case of Vidhyadhar v. Manikrao[1], contends that where a party to the suit does not appear into the witness box and subjects himself to cross-examination, a presumption would arise that the case set up by him is not correct. The said inference, evidently, cannot be drawn in all cases. It is to be mentioned that a fact can be proved by any evidence by a party to the suit. In this connection, the father of the plaintiffs 1 to 4 was examined and it cannot be said that he had no knowledge of the rights of the plaintiffs 1 to 4 and the rights of his wife in the property and the nature of enjoyment, merely because, P.W.1 is not a party to the suit. It cannot be said that his evidence has no value. There can be no inference to be drawn since the title to the property is based on Ex.A-1 and several documents were filed by the father of P.Ws.1 to 4 to prove the right and enjoyment of the property. It is ultimately for the Court to decide whether his evidence is to be believed or not. There cannot be any better person to be cross- examined about the rights of the plaintiffs 1 to 4 in the properties rather than their father. 11. The lower Court has dismissed the suit on the ground that none of the persons associated with the document, which is the gift deed, were examined and the gift deed is not proved as required under Section 68 of the Indian Evidence Act, 1872 (for brevity “the Act”) and as such, the plaintiffs are non-suited. According to the learned counsel for the appellants, the finding of the lower Court on this aspect is not correct. According to him, as per Section 68 of the Act, there should be a specific denial of the execution of the gift deed by the executant and in this case the mother, who has executed the gift deed, has come on record as 5th plaintiff as a legal representative and she never denied the execution of the gift deed and in view of the above circumstances, the finding of the lower Court that the gift deed is not proved, is not legal and sustainable. 12. In this connection, reliance is placed on a decision rendered by a Division Bench of this Court in Dr.K.I.Askari v. Nawab Mir Barkat Ali Khan etc.[2] wherein it was held that when the executant of a gift deed did not dispute the execution, then the mandate of calling one attesting witness in proof of its execution under Section 68 of the Act, does not arise. In this connection, the judgment reported in R.Issetheenammal Fernandez (dead) by L.Rs. v. Joosa Mariyan Fernandez[3] also is relevant to be noted. Further more, in P.Lakshminarayana (deceased) by his L.Rs. v. P.Venkata Subbarao[4], it was held, when the executant of a gift deed admits its execution, it is not open to a third party to deny its execution except on the ground of lack of power to convey the property. 13. Therefore, from the decisions relied on by the counsel for the appellants, it is quite clear that there is no specific denial of the execution by the executant, who is the 5th plaintiff, when she was brought on record. Therefore, the very executant is a party to the suit and in such circumstances, the suit should not have been dismissed on the ground of not proving the gift deed. 14. It is a different matter, as to whether the 5th plaintiff has title to the property, and as to whether it can be conveyed by her or not. Evidently, it requires a finding from the Court after assessing the documentary evidence produced by both parties. In fact, the lower Court has not decided the title of the parties from the documents available on record. The claim of the defendants about their rights in the property is also not determined. Therefore, in view of the above circumstances, the dismissal of the suit by the lower Court, on the ground that the gift deed is not proved, is not proper when the executant has not specifically denied, who came on record as a plaintiff in the suit. 15. Accordingly, the judgment and decree of the lower Court are set aside and the matter is remanded to the lower Court to determine the rights of the parties, specifically with regard to the title of the plaintiffs and the defendants and dispose of the suit. Accordingly, the points are answered. 16. In the result, the appeal is allowed by setting aside the judgment and decree dated 04.06.2001 passed by the learned Senior Civil Judge, Kadapa and the matter is remanded to the lower Court to determine the rights of the parties, specifically with regard to the title of the plaintiffs and the defendants and dispose of the suit. Each party to bear their own costs. ________________________ N.R.L.NAGESWARA RAO, J 7th February, 2011 MR THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT NO.1744 OF 2001 Date: 07-02-2011 MR [1] 1999 (3) Supreme Court Cases 573 [2] 2010 (4) ALD 244 (DB) [3] 2000 (5) ALD 84 (SC) [4] 2000 (6) ALD 157