MUNIRATHNAMMA Vs. PUTTAMMA

JUDGEMENT

(1.) This matter is listed for admission. Heard the learned counsel appearing for the appellants. This appeal is filed against the concurrent finding of the Trial Court as well as the First Appellate Court.

(2.) The factual matrix of the case of the plaintiffs before the Trial Court that when the suit is filed for the relief of partition and separate possession before the Trial Court, defendant No.8 appeared and filed an application under Order VII Rule 11(d) of CPC for rejection of the plaint on the ground that already there was a gift deed executed on 24/2/1964. Subsequently, the said gift deed was cancelled on 4/11/1969 which is not valid hence, there cannot be in continuation of proceedings. The Trial Court having considered the judgment of this Court reported in 2002 (3) KLJ 512 comes to the conclusion that donor has no capacity to revoke gift duly registered, remedy is to file a suit for cancellation of gift and by way of unilateral, cancellation of gift deed is not valid. Hence, allowed the application filed under Order VII Rule 11(d) of CPC and rejected the plaint. The said order has been challenged in R.A.No.5039/2015. The First Appellate Court having considered the grounds urged in the appeal, formulated the points and also in detail discussed the scope of Order VII Rule 11(d) of CPC as well as the cause of action shown in the suit and also taken note of several judgments of the Apex Court and judgments of this Court and comes to the conclusion that no grounds are made out to reverse the finding of the Trial Court holding that well reasoned order has been passed by the Trial Court while invoking Order VII Rule 11(d) of CPC and confirmed the order of the Trial Court. Being aggrieved by the said judgment of the First Appellate Court, the present second appeal is filed before this Court.

(3.) The counsel for the appellants would vehemently contend that both the Courts have committed an error in coming to the conclusion that there cannot be any cancellation of gift deed unilaterally when already gift deed was executed in the year 1964 and competent Court only has to cancell the same. The counsel would vehemently contend that this Court has to interfere with the finding of both the Courts by framing the substantial questions of law invoking Sec. 100 of CPC and admit the appeal.