A unilateral gift deed executed without consent of prior property owners is invalid, reinforcing the necessity for proper consent and title rights in property disputes.

JUDGMENT :

K.GOVINDARAJAN THILAKAVADI, J.

1. This Second Appeal is preferred against the judgment and decree dated 01.09.2022 passed in A.S. No.36 of 2018, on the file of the Sub Court, Arakkonam, confirming the Judgment and decree dated 31.07.2018 passed in O.S.No.77 of 2011, on the file of the District Munsif Court, Arakkonam.

2. The plaintiff has filed the suit in O.S. No.77/2011 for declaring the registered Gift Deed dated 28.12.2006 executed by the 4^th defendant in favour of the 6^th defendant as null and void and not binding on the plaintiff and to declare the common passage situate on the west of the suit property measures only 16 feet in width and for permanent injunction.

3. According to the plaintiff, he had purchased the suit property measuring an extent of 1298 sq. ft. in S.Nos.342/2B and 2C with specific boundaries morefully described in the suit schedule from the 4^th defendant under a sale deed dated 16.07.2003, who sold the same to the plaintiff as power agent of one Bakthan and others. Though the western boundary is mentioned as common passage, no specific measurement was given in the sale deed, but in the ground only 16 feet passage remains and the same is also admitted by the defendants. While so, the 4^th defendant has executed a sale deed in favour of the 6^th defendant on 28.12.2006 in respect of the suit property without any alienable right. The plaintiff has put up construction in the suit property after getting approval from the competent authority and also obtained electricity connection. The defendants 1 to 3, taking advantage of the Gift deed executed by the 4^th defendant, started to claim a 20 feet width passage and attempted to interfere with plaintiff's possession in the suit property. Hence, the suit.

4. The claim of the plaintiff was resisted by the defendants 1 to 4 stating that the plaintiff and his brother have purchased Plot Nos. 7 and 8 under a registered sale deed dated 16.07.2003. Thereafter, the 4^th defendant approached the 5^th defendant on 28.12.2006 to regularize the unapproved plots. At that time, the 5^th defendant directed the 4^th defendant to hand over the common passage through a registered Gift Deed. Hence, the 4^th defendant executed a Gift Deed for common passage measuring 20 feet width, though the 4^th defendant formed the plots with common passage of 16 feet width before approval. The 4^th defendant informed the above facts to all the purchasers. In this connection, the plot owners, except the plaintiff and his brother, have executed rectification deeds with the 4^th defendant and the same was registered. The 5^th defendant after receipt of the Gift Deed executed by the 4^th defendant approved all the plots vide letter dated 29.12.2006. Thereafter, the plot owners, except the plaintiff, got building approval after the rectification deed. While so, the plaintiff fraudulently obtained the building approval from the 5^th defendant successor and got electricity connection. The plaintiff demanded Rs.5,00,000/- for executing the rectification deed. Thereafter, the 16 feet common passage is shifted from the western side of the suit property to the eastern side. Hence prayed for dismissal of the suit.

5. The trial court dismissed the suit vide its judgment and decree dated 31.07.2018 against which appeal was preferred. The first appellate court also dismissed the appeal suit vide its judgment and decree dated 01.09.2022 confirming the decree of the trial court.

6. The present Second Appeal is preferred by the plaintiff challenging the judgment and decree passed by the court below.

7. The Second Appeal has been admitted on the following substantial questions of law:

“1. Whether the courts below were right in rejecting the prayer for declaration in prayer (b) of the plaint, having found that the common pathway exist is only 1