G.Gyneshwar vs G.Maheshwar And Another

This appeal is directed against judgment and decree dated 12.11.2021 passed by the learned IX Additional Chief Judge, City Civil Court, Hyderabad, in A.S.No.69 of 2017 confirming the judgment and decree dated 30.12.2016 passed by the learned I Senior Civil Judge, City Civil Court, Hyderabad, in O.S.No.1005 of 2011.

The appellant herein is the defendant and the respondents herein are the plaintiffs in the suit. O.S.No.1005 of 2011 was filed by the plaintiffs against the defendant seeking for eviction and also for mesne profits of Rs.6,000/- per month from the date of suit. The case of the plaintiffs in brief is that the second plaintiff purchased the suit schedule house bearing No.11-4-502 situated at Bazarghat, Hyderabad, admeasuring 31 square yards. As she is issueless, she adopted the first plaintiff and gifted the schedule property to him vide Gift Deed bearing Document No.655 of 2009 dated 21.02.2009. The schedule property consists of ground and first floors. The defendant is no other than the real brother of the first plaintiff and that on the request of defendant’s father, the first plaintiff gave permissive possession to him to reside in the first floor portion of the schedule property on the assurance that he would vacate the premises as and when demanded by the plaintiffs. As the second plaintiff gifted the schedule property to the first plaintiff, the defendant bore grudge against the latter and started picking up quarrels with them. The defendant and his wife created much inconvenience to the plaintiffs and as such the plaintiffs requested them to vacate the premises for which the defendant sought two months time to vacate. Even after two months the defendant is postponing the matter on one or other pretext and on 12.05.2011 the defendant and his wife threatened the plaintiffs and created nuisance and finally refused to vacate the premises and thus, the first plaintiff got issued a legal notice to the defendant on 13.05.2011. The defendant gave reply notice and thereafter the plaintiff filed the suit for eviction.

The defendant in his written statement while admitting the relationship stated that he is the absolute owner and possessor of the undivided share in schedule house bearing No.11-4-502 with exclusive rights over the first floor and terrace. The second plaintiff executed gift deed in his favour on 11.08.2008 out of love and affection as she is issueless and from the childhood the second plaintiff was taking care of him and he has been residing with her and it is known to the relatives and neighbours. The first plaintiff was never adopted by the second plaintiff. The father of the first plaintiff has not given him in adoption to the second plaintiff. He came to know about the registered gift settlement deed only when he received legal notice on 13.05.2011. The second plaintiff is a retired Government employee and is in old age suffering from health ailments and her physical and mental condition was not fit and taking undue advantage of the same, the first plaintiff brought up the gift settlement deed and adoption deed with an intention to grab the property.

In support of their respective contentions, the first and second plaintiffs were examined as P.Ws.1 and 2 and got marked Exs.A1 to A4 i.e. Original registered gift deed, registered adoption deed, office copy of the legal notice and the legal notice. The defendant was examined himself as D.Ws.1 and no document was marked on his behalf.

Considering the oral and documentary evidence adduced by both the parties, the trial Court decreed the suit in favour of the plaintiffs and directed the defendant to vacate and hand over vacant physical possession of first floor of schedule property within two months, failing which the plaintiffs are entitled to recover possession by due process of law. So also the plaintiffs are at liberty to file separate application for mesne profits. Aggrieved by the said findings, the appellant-defendant preferred an appeal in A.S.No.69 of 2017 but the appellate Court also confirmed the judgment of the trial Court. Therefore, the appellant herein preferred this second appeal.

For the sake of convenience, the parties hereinafter are referred to as arrayed in the suit.

Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondents.

Learned counsel for the appellant would contend that basing on the fabricated document under Ex.A1 the plaintiff filed false suit against him. He would further contend that the first plaintiff failed to prove adoption taken by the second plaintiff and that the first plaintiff was aged 18 years at the time of adoption but as per the Hindu Law the adoption is to be taken below 15 years. He would also assert that when an unregistered gift settlement deed dated 11.08.2008 was executed by the second plaintiff, the appellant filed a petition under Section 33 of Indian Stamp Act, 1933 for payment of deficit stamp duty and it was allowed by the trial Court on 18.03.2016. Accordingly, the said document was sent for impounding and that the document was returned by the District Registrar stating that there is no entry in the Register of stamp vendor regarding sale of stamp paper and as such the right of the defendant over the suit schedule property cannot be defeated as the document is not marked for want of stamp duty and registration. He would also argue that even though the said document is inadmissible in evidence and unregistered document, the Court can look into the document to decide the rights of the parties over the suit schedule property. As he is having half share in the suit schedule property, he also filed O.S.No.4657 of 2021 and it is still pending before the learned XX Junior Civil Judge, City Civil Court, Hyderabad. He would also argue that the appellate Court failed to appreciate that the defendant is having right and title over the property as per the gift settlement deed dated 11.08.2008, but confirmed the judgment of the trial Court, and thus, the same is liable to be set aside.

The second plaintiff was working as Sweeper in the Police Department and she adopted the first plaintiff on 18.06.1994 under Ex.A2 when he was 18 years old. She does not know reading and writing and she is a thumb marker. P.W.1 in his evidence admitted that he purchased a house at Uppuguda with the retirement benefits of the second plaintiff. P.W.2 stated that she purchased the house after getting the employment in the Police Department. It was suggested to her that her younger brother Veeraiah purchased the property even before she got the employment, but she denied the same. P.W.2 deposed that she is the owner and possessor of the suit property and she gifted the same to the first plaintiff under Ex.A1. She also deposed that the defendant was given permissive possession to reside in the first floor of the schedule property on his assurance that he would vacate the premises as and when demanded by the first plaintiff. She also deposed that the defendant is not related to her and he is not the brother of the first plaintiff and Veeraiah is not her younger brother. One Srinivas Rao and Nageshwar Rao are the witnesses to the adoption of the first plaintiff by the second plaintiff. It was brought in evidence that the first plaintiff is paying taxes and also paying electricity bills.

The trial Court held that the second plaintiff is the owner of the property and she executed gift deed to her adopted son-the first plaintiff and handed over possession of the property and as such the possession of the defendant over the suit schedule property after the expiry of the time given for vacating is illegal and unauthorized and thus the plaintiff is entitled for mesne profits and accordingly decreed the suit in favour of the plaintiff.

The appellate Court also held that the suit schedule property belongs to his paternal aunt G.Laxmamma and the plaintiff is nephew of her younger brother. As she had no issues, she adopted the first plaintiff through registered adoption deed dated 18.05.1994 under Ex.A2. P.W.1 stated that he has four brothers and the second plaintiff is elder sister of his father and she is unmarried. She was working as Sweeper in Police Department and took voluntary retirement and adopted the first plaintiff on 18.06.1994 under Ex.A2 when he was 18 years old. Considering the said evidence on record, the appellate Court dismissed the appeal by confirming the judgment of the trial Court. Aggrieved by the same, the defendant preferred this second appeal by contending that he filed unregistered gift settlement deed dated 11.08.2008 and it was referred for impounding in payment of deficit stamp duty on 18.03.2016 by the trial Court, but the District Registrar returned the same informing that there is no entry in the Register of stamp vendor in respect of sale of stamp paper. As the document is not marked, the trial Court observed that no document is filed on his behalf and he also filed O.S.No.4657 of 2021 for partition claiming that he is having half share in the suit schedule property. His main contention is that both the Courts below without considering the aspects that the unregistered gift deed filed by him and also the fact that the age of the first plaintiff is 18 years at the time of adoption, decreed the suit in favour of the plaintiff erroneously.

Admittedly, the suit is filed for eviction and for mesne profits. The second plaintiff clearly stated that she adopted the first plaintiff and also filed adoption deed. She further stated that she executed gift deed in favour of the first plaintiff and filed the same to substantiate her version. As on the date of filing of the suit, the second plaintiff is aged 52 years and the age of the first plaintiff was 30 years. If any women intend to adopt a male child the age difference between them should be more than 21 years. Admittedly, the first plaintiff is aged more than 22 years of age. Therefore, the objection raised by the appellant herein is not tenable. The next point raised by the appellant is that though he filed registered gift settlement deed, the trial Court did not consider it as it was an unregistered and cannot be impounded, and therefore, he filed a suit for partition and his rights over the property will be decided in the said suit. Till then he was evicted from the suit schedule premises rightly by both the Courts, and as such, the second appeal has no merits.

Accordingly, the Second Appeal is dismissed confirming the Judgment and Decree dated 12.11.2021 passed by the learned IX Additional Chief Judge, City Civil Court, Hyderabad, in A.S.No.69 of 2017.

Pending miscellaneous petitions, if any, shall also stand closed in the light of this final judgment.