A gift deed is ineffective if the donor lacks title to the property, as established by evidence indicating a prior family partition.

JUDGMENT :

H.P.SANDESH, J.

1. Heard the learned counsel for the appellant and also the learned counsel for the respondents.

2. This second appeal is filed against the divergent finding. The Trial Court dismissed the suit and the same is reversed by the First Appellate Court granting the relief as sought in the suit and also directed to the defendants to hand over the encroached portions i.e., ‘B’ schedule property to the plaintiffs within 3 months from the date of the order.

3. The factual matrix of case of plaintiff before the Trial Court while seeking the relief of declaration, recovery of possession and mandatory injunction, it is contended that suit schedule property originally belongs to one Narasimhaiah. He gifted the suit property in favour of plaintiff through gift deed dated 19.03.1992. After execution of the gift deed, the plaintiff has taken possession of the suit property. The Katha and pahani of suit property made out in her name. The plaintiff got converted the suit property from agricultural to non-agricultural land. The plaintiff formed sites in the suit property. The plaintiff is residing at Madhugiri, after her marriage. Taking advantage of the absence of the plaintiff near the suit property, defendant Nos.1 and 2 encroached Item No.1 in ‘B’ schedule property and the 3^rd defendant encroached Item No.2 in ‘B’ schedule property and ‘B’ schedule properties are part and parcel of ‘A’ schedule property. The plaintiff came to know about encroachment of ‘B’ schedule property by the defendants in the year 2006, when she measured the suit property through surveyor. The plaintiff requested the defendants to vacate the encroached portion. They agreed to remove, but subsequently, refused to hand over the encroached portion. During the pendency of the suit, the defendant Nos.1 and 2 who had opened door on eastern side of their house, they closed the said door and opened the door towards northern side of their house, that is towards ‘A’ schedule property. The defendants have no right to do so and hence, filed the suit. In pursuance of the suit summons, defendants have appeared through their respective counsel. The defendant No.2 filed his written statement, defendant No.1 has adopted the written statement of defendant No. 2. The 3^rd defendant filed her separate written statement. The 2^nd defendant denied the entire case of plaintiff and particularly in paragraph No.8 pleaded that suit property belongs to one common ancestor of the plaintiff and the defendants namely Thimmaiah. There was no partition by metes and bounds among the children of ancestor Thimmaiah. The sons of ancestor Thimmaiah were enjoying the property roughly. The defendant Nos.1 and 2 have been enjoying the land bearing Sy.No.11/1c1 and there is a bund put in East-West direction and the said bund has been there since from time immemorial. The said bund is situated towards the north of the said Sy.No.11/1c1. It is pleaded in paragraph No.12 of the written statement that Sy.No.11/1 totally measuring 1 acre 13 guntas which was originally belongs to Thimmaiah. He has got three sons, namely Narasimhaiah, Thimmaiah and Kariyanna. During their lifetime, they have divided their properties through Palupatti dated 29.04.1958. In the said partition, 6 guntas in Sy.No.11/1 reserved to put up hay- stock and cow dung. The said 6 guntas phoded and numbered as Sy.No.11/1A, and the remaining 1 acre 7 guntas, northern half portion fallen to the share of Thimmaiah and southern half portion fallen to the share of Kariyanna and 4 guntas of Thimmaiah share was alienated and it was numbered as Sy.No.11/1B. T