Faisal Shahid & Anr. vs Khalil-Ur-Rehman & Ors.
2018 Latest Caselaw 3708 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No. 182/2015

%                                                   5th July, 2018

FAISAL SHAHID & ANR.                                ..... Appellants
                  Through:               Mr.     Nitish      Chaudhary,
                                         Advocate for Mr. Chetan
                                         Lokur, Advocate.
                          versus

KHALIL-UR-REHMAN & ORS.                              ..... Respondents

                 Through:                Mr. Rajiv Saxena, Mr. Manish
                                         Khurana, Mr. Rachit Sahney
                                         and Ms. Namrata Chauhan,
                                         Advocates for R-1.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)

1. This Regular First Appeal under Section 96 of the Code

of Civil Procedure, 1908 (CPC) is filed by the plaintiffs in the suit

impugning the judgment of the trial court dated 27.11.2014 by which

the trial court has dismissed the suit for declaration filed by the

appellants/plaintiffs. By the suit, appellants/plaintiffs sought

declaration that they were the owners of the two properties which

were said to be gifted in their favour by the respondent no.1/defendant

no.1/Mohd. Khalil-Ur-Rehman/plaintiffs' grandfather. The two

properties in question which are subject matter of the suit are

H.No.1082, Mohalla Kanungo, Kasba & Pargana Zamania, District

Ghazipur, U.P and House No.3950-54, Gali Khankhana, Urdu Bazaar,

Jama Masjid, Delhi. The gift is said to be Oral/Hiba as the parties are

governed by the Mohammedan Law.

2. The facts of the case are that the appellants/plaintiffs

pleaded that the suit properties were owned by their grandfather-

respondent no.1/defendant no.1. It was pleaded that the respondent

no.1/defendant no.1 gifted the suit properties to the

appellants/plaintiffs by an oral gift on 5.6.1991. It was pleaded that

the factum of the oral gift was to be on record in writing by the

respondent no.1/defendant no.1 executing a document dated

21.9.1991. Appellants/plaintiffs pleaded that the respondent

no.1/defendant no.1 promised to get the mutation done in the name of

the appellants/plaintiffs but this was not done. The further case of the

appellants/plaintiffs is that though their father Shahid Khalil (and who

was the son of respondent no.1/defendant no.1), had bad relations with

his father viz the respondent no.1/defendant no.1, and there were

various litigations between the appellants/plaintiffs' father Shahid

Khalil and the respondent no.1/defendant no.1/grandfather of the

appellants/plaintiffs, but the respondent no.1/defendant no.1 continued

to have good relations with the appellants/plaintiffs and was visiting

the appellants/plaintiffs. It was accordingly pleaded that the

respondent no.1/defendant no.1 had executed the oral gift/

Hiba in favour of the appellants/plaintiffs of the suit properties and

therefore they be declared the owners of the suit properties.

3. The suit was contested by the respondent no.1/defendant

no.1 only. Rest of the respondents/defendants did not appear in the

suit. Obviously the suit was contested by the respondent

no.1/defendant no.1 only because it was his ownership of the suit

properties which was questioned by the appellants/plaintiffs.

Respondent no.1/defendant no.1 denied that he ever made an oral gift

of the suit properties in favour of the appellants/plaintiffs on 5.6.1991.

Respondent no.1/defendant no.1 also pleaded that he did not execute

any document on 21.9.1991 as claimed by the appellants/plaintiffs. It

was the case of the respondent no.1/defendant no.1 that he was not

even present at Mohalla Zamania in UP on 5.6.1991 when the alleged

oral gift was said to be made by him in favour of the

appellants/plaintiffs. The suit was therefore prayed to be dismissed.

4. After pleadings were complete, the trial court framed the

following issues:-

"1. Whether the plaintiffs are entitled for decree of declaration as prayed for that they are owner on the basis of oral Hiba (gift) dated 5.6.1991? OPP

2. Whether the oral Hiba was later on reduced into writing on 21.09.1991? OPP

3. Whether the document dated 21.09.1991 is forged or fabricated? OPD

4. Whether the suit is time barred U/s 34 of Specific Relief Act? OPD

5. Whether the suit has not been properly valued? OPD

6. Relief."

5. Trial court has dismissed the suit by holding that the

appellants/plaintiffs failed to prove any oral gift in their favour of the

suit properties. Trial court has also held that appellants/plaintiffs

failed to prove that the respondent no.1/defendant no.1 had executed

the document dated 21.9.1991 in favour of the appellants/plaintiffs.

6. A reading of the trial court record, including the

documents filed as also the oral evidence led by the parties, the

following aspects have clearly emerged:-

(i) Except the self-serving statements made by the

appellants/plaintiffs and their two witnesses Sh. Dharamraj Khuswa

and Sh. Mukhtar Ahmed, there is nothing on record to show that an

oral gift/Hiba was executed by the respondent no.1/defendant no.1 in

favour of the appellants/plaintiffs. Therefore, in my opinion, by self-

serving oral averments ownership of an immovable property cannot be

got divested from respondent no.1/defendant no.1.

(ii) The appellants/plaintiffs pleaded that the respondent

no.1/defendant no.1 had executed Ex.PW1/A/document dated

21.9.1991, but admittedly, none of the two attesting witnesses to this

document dated 21.9.1991 were examined. Affidavit by way of

evidence was filed by one attesting witness Sh. Ali Azhar Khan but he

could not be cross-examined as he died before cross-examination.

Appellants/plaintiffs did not bring into evidence the second attesting

witness Sh. Atiqullah Siddiqui as he had already expired.

(iii) More importantly, it is relevant to note that the signatures of the

respondent no.1/defendant no.1 on the alleged document dated

21.9.1991 were not proved to be of the respondent no.1/defendant no.1

because these signatures were not compared with any admitted

signatures of the respondent no.1/defendant no.1 on any admitted

document including of public record or bank accounts or any other

government document. Therefore, the signatures of the respondent

no.1/defendant no.1 allegedly appearing, on Ex.PW1/A are only said

to be of respondent no.1/defendant no.1 only on the basis of self-

serving averments of the appellants/plaintiffs, and therefore the

appellants/plaintiffs, cannot be believed. It goes without saying that

the appellants/plaintiffs did not examine any handwriting expert to

prove the signatures of the respondent no.1/defendant no.1 on the

document dated 21.9.1991 with cross-reference to the admitted

signatures of the respondent no.1/defendant no.1 during the relevant

time of June to September,1991.

(iv) No doubt, as per the case of the appellants/plaintiffs two

witnesses namely Sh.Dharamraj Khuswa and Sh. Mukhtar Ahmed

were present on 5.6.1991 when the Hiba was executed as per the case

of the appellants/plaintiffs, but the issue is not of the presence of these

two persons at Mohalla Zamania Gazipur in UP on 5.6.1991 but the

issue is of the presence of the respondent no.1/defendant no.1

inasmuch as the respondent no.1/defendant no.1 denied that he was at

all present on 5.6.1991 at Mohalla Zamania Gazipur in UP. This has

been deposed to by the respondent no.1/defendant no.1 in his evidence

and no credible evidence whatsoever has been led by the

appellants/plaintiffs to show that respondent no.1/defendant no.1 was

ever present at Mohalla Zamania Gazipur in UP on 5.6.1991 for

allegedly making Hiba/Oral Gift of the suit properties in favour of the

appellants/plaintiffs.

7. I may note that there are quite a few contradictions in the

judgment of the trial court, and a trial court should be careful while

writing the judgment so that factual narration is not against the record

of the court, however be that as it may, the aforesaid conclusions

which have been drawn by this Court indubitably can be drawn from

the trial court.

8. It is therefore seen that the appellant/plaintiffs are

harassing the respondent no.1/defendant no.1 by falsely claiming the

ownership of the suit property and of which they are in possession.

The love and affection of the respondent no.1/defendant no.1 towards

the plaintiffs have been reciprocated by the appellants/plaintiffs falsely

claiming ownership of the suit properties only because the

appellants/plaintiffs want to perpetuate their illegal possession. This

type of dishonesty of the appellants/plaintiffs is completely

unacceptable.

9. After the case was argued, counsel for the appellant

no.2/plaintiff no.2 took instructions from the appellant no.2/plaintiff

no.2 who is present in Court as to whether appellant no.2/plaintiff no.2

wants to vacate the suit premises after taking time to vacate, however,

the appellant no.2/plaintiff no.2 has instructed his counsel to invite a

judgment on merits. I may note that appellant no.1/plaintiff no.1 is not

represented through counsel today but the fact of the matter is that

appellant no.1/plaintiff no.1 had appeared through Advocate and

whose Vakalatnama has not been discharged and therefore cannot be

said that there is no representation on behalf of the appellant

no.1/plaintiff no.1. There is no application for discharge filed by the

counsel for the appellant no.1/plaintiff no.1 for being discharged from

the case.

10. In view of the above discussion, this appeal is a complete

abuse of the process of law and the , appellants/plaintiffs are harassing

an old man being the respondent no.1/defendant no.1, and who today

is around 95 years of age.

11. This appeal is therefore dismissed with costs of

Rs.2,00,000/-. Out of the costs of Rs.2,00,000/-, Rs.1,00,000/- will be

deposited by the appellants/plaintiffs with the Prime Minister Relief

Fund within six weeks from today and an amount of Rs.1,00,000/-

shall be paid by the appellants/plaintiffs to the respondent

no.1/defendant no.1 within six weeks.

JULY 05, 2018/ib                            VALMIKI J. MEHTA, J