Telangana High Court
Atherullah Khan Alias Razzak vs Abul Fatah Fazlur Rahman Khan And 2 ... on 23 February, 2024
* THE HONOURABLE SMT. JUSTICE M.G. PRIYADARSINI
+ A.S.No.307 OF 2022
% 22.01.2024
# Between:
Atherullah Khan @ Razzak and another Appellant
Vs.
Abdul Fatah Faziur Rahman Khan and 2 others
Respondents
! Counsel for Appellant : Sri Ravichettu Guru Prasad
^ Counsel for Respondents : B. Danunjaya
<GIST:
> HEAD NOTE:
? Cases referred :
1. (2011) 2 WLC 503
2. 2010 (1) ALD 805
3. AIR 1973 Gauhati 96
4. AIR 1932 Calcutta 497
5. (2009) 6 SCC 160
6. AIR 1971 SC 361
7. AIR 2001 GUJ 271
8. Civil Appeal Nos.4883-4884 of 2017 decided on 03.11.2020
9. 2018 (5) ALT 511 (S.B.)
2
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THE HONOURABLE SMT. JUSTICE M.G. PRIYADARSINI
A.S.No.307 OF 2022
JUDGMENT:
The present appeal is directed by the defendants against the
judgment and decree dated 18.10.2022 in O.S.No.88 of 2013
(hereinafter will be referred as 'impugned judgment') on the file of
learned IV Additional District Judge, Mahabubnagar (hereinafter will
be referred as 'trial Court'), whereby the suit of the plaintiff to declare
him as owner of the suit schedule property and recovery of
possession, was decreed.
2. For the sake of convenience, hereinafter, the parties will be
referred as per their array before the learned IV Additional District
Judge, Mahabubnagar.
3. The brief facts of the case, which necessitated the defendants
to file the present appeal are that the sole plaintiff filed suit for
declaration and recovery of possession in respect the suit schedule
property against defendant Nos.1 to 4. The brief averments of the
plaint are as under:
a) The father of the plaintiff and father of defendant No.1 are real
brothers. The father of plaintiff was a Government Teacher and
whereas the father of the defendant No.1 was a un-employee having
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no skill in any field. The father of the plaintiff purchased and extent
of 540 square yards under registered sale deed bearing document
No.585 of 1960 dated 16.09.1960 from the registered owner and
constructed a house along with mulgies with two shutters on the
said plot on the northern side abutting to Hyderabad Road. The
municipal authorities have assessed the said house to tax and
allotted house No.1-5-37. Since defendant No.1 had no employment,
the father of the plaintiff used to look after the family of defendant
No.1 also. The father of the plaintiff let out said mulgies to tenants,
who used to do grocery business for some period and other tenants
used to run hotel business. In the year 1972 the father of the
defendant No.1 passed away, as such the father of the plaintiff
permitted defendant No.1 and his mother, sisters to stay in the
portion of the house behind said muilgies with separate mess. The
said portion of the house and mulgies to an extent of 115.56 square
yards (suit schedule property) is in possession of defendant No.1. In
the year 1990 out of love and affection, the father of the plaintiff with
an intention to give some work to defendant No.1, who was without
work, permitted defendant No.1 to establish a hotel and flower
business and accordingly the defendant No.1 was doing the same in
the said mulgies.
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b) In the year 2009 the father of the plaintiff passed away and
thereafter defendant No.1 started acting adversely as such in the
month of January, 2010 and March, 2010 the plaintiff demanded
the defendant No.1 and his family members to vacate the suit
schedule property but the defendant No.1 dodged the matter on lame
excuses. In the meanwhile, defendant No.1 let out suit schedule
property on monthly rent without any authority and interest to
defendant Nos.3 and 4, who maintained a hotel in the name and
style of "Ganesh Tiffin Centre" and also constructed a big furnace in
Udipi style for said business due to which lot of heat is being
produced. The residence of the plaintiff is becoming hot and they
are unable to enjoy their property. Accordingly, the plaintiff
approached the municipal authorities to take action against
defendant Nos.1, 3 and 4 but of no use, as such the plaintiff
approached District Collector, who directed the municipal
authorities to take action. Defendant Nos.3 and 4 filed O.S.No.39 of
2013 and obtained interim orders against plaintiff and defendant
No.1 vide I.a.No.146 of 2013 and the said interim order was made
absolute on 20.08.2013.
c) The defendant No.1 started tea stall under the name and
style of Savera Tea Point and closed the passage on the eastern
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side of the said premises and the said passage is the only
ingress and egress to the house of the plaintiff from the main
road. Thus, the plaintiff made a complaint to the Municipal
Authorities against defendant No.1, who filed O.S.No.40 of 2013
against Municipality and obtained interim order dated
06.04.2013 vide I.a.No.153 of 2013.
d) On enquiry, the plaintiff came to know that in the year
2012 the defendant No.1 created a registered gift deed alleging
that his mother gifted the suit schedule property to him on
16.05.2002 vide registered document bearing No. 1982 of 2002
and thereafter obtained a rectification deed bearing document
No.3759 of 2002 through his mother on 17.09.2022. The father
of the plaintiff never gifted any property to the mother of the
defendant No.1 so that she can gift the same to the defendant
No.1 under registered gift deed, as such, the said documents
are null and void and not binding on the plaintiff.
e) Defendant No.1 in collusion with defendant No.2 created
a sale deed dated 08.11.2012 to an extent of 57.77 square yards
in favour of defendant No.2. The father of the plaintiff is the
absolute owner of the premises as he has purchased property
and whereas defendants are in permissible possession, as such
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defendant No.1 or his mother has no right to execute any
document and even if they execute any document the same are
not binding on the plaintiff. By virtue of said documents, a
cloud is created over the title of the plaintiff. Hence, the suit.
4. The defendant No.1 filed written statement and the brief
averments of which are as under:
a) The plaintiff intentionally did not plead about the death of
their grandfather, who died in the year 1972. The father of the
plaintiff and father of defendant No.1 along with their father had
joint family properties at Thornai Village, Medak District and
they used to get agricultural income. In the year 1964, the
father of the defendant No.1 and father of plaintiff along with
their father sold said agricultural joint family properties and
acquired some other properties. Since the father of the plaintiff
was the elder member of the family, all the properties were
registered in the name of father of the plaintiff. Though the
father of the plaintiff has purchased open plot to an extent of
540 square yards on 16.09.1960 under registered sale deed
bearing document No.595 of 1960, the said property is not self
acquired property of father of the plaintiff and in fact, the father
of the defendant No.1 is also having share in it. The father of
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the defendant No.1 used to do hotel business and kirana
business in Mahabubnagar from 1962 onwards and had
sufficient income and he used to maintain his family, as such
the contention of the plaintiff that his father maintained the
family of defendant No.1 is not true.
b) The property purchased by the father of the plaintiff
during the life time of their grandfather is joint family property.
Initially the house was not constructed and only mulgies were
constructed with joint funds and subsequently house was
constructed on the backside of the said mulgies by using joint
family funds of father of the plaintiff and father of defendant
No.1.
c) From the date of construction, the father of the defendant
No.1 used to do business in the said mulgies and thereafter the
defendant no.1 joined with his father and continued the said
business. The defendant No.1 and his family members resided
in the said house portion in the capacity of co-owners. Initially
mess of both families were one and the same but in the year
1984 they have separate mess.
d) The brother of the defendant No.1 got employment in
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Karnataka RTC and they being absolute owners of the said
portion of the house made additional construction over the said
mulgies with their own funds and converted the same into
residential portion. The defendant No.1 used to stay in the
ground floor initially and after establishing the hotel business,
he constructed residential portion over the mulgies and they
started residing in the same. Though the plaintiff is having a
brother and three sisters, the plaintiff suppressed the same and
not made his sibilings as parties to the suit, as such the suit is
not maintainable.
e) The mother of the defendant No.1 being absolute owner
under love and affection gifted the suit premises to defendant
No.1 and as some mistake crept in the same, it was rectified
under rectification deed and thereby the defendant No.1 being
the absolute owner let out the premises to defendant Nos.3 and
4. Since the plaintiff made several complaints to municipal
authorities and obstructed defendant nos.3 and 4 from doing
business, the defendant Nos.3 and 4 obtained injunction
against the plaintiff.
f) Originally the father of the plaintiff and father of the
defendant No.1 and their father jointly resided in Basappa
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Compound, later shifted near to Kousar Masjid, New Town
Mahaboob Nagar and with join family funds they have
purchased open plot and constructed mulgies. Therefore, the
father of the plaintiff intended to give share to father of
defendant No.1 but as he died in the year 1973 itself and since
his mother is alive, the father of the plaintiff orally gifted the
suit schedule property to his mother. Thereafter, they being the
absolute owners, made additional construction over the said
mulgies by investing huge funds and used the same for
residential purpose. The name of the mother of the defendant
No.1 was mutated in the municipal records in the year 1984
and thereafter the name of the defendant No.1 was mutated in
the municipal records.
g) Though the plaintiff and his family members are very
much aware of the recording his name as well as name of his
mother in the municipal records, they never raised any
objection. Even as per the pleadings of plaintiff, the defendant
No.1 is in possession of the suit schedule property from the year
1990, as such the present suit is barred by law.
h) Defendant No.1 being an absolute owner of the suit
schedule property, sold part of the suit schedule property to
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defendant No.2 under registered sale deed for valuable
consideration. Finally the defendant No.1 prayed to dismiss the
suit as the same is barred by limitation.
5. Defendant No.2 filed written statement, which is in
similar lines to that of the written statement filed by defendant
No.1. As per the information of defendant No.2, defendant No.1
enjoyed the said premises as an absolute owner and prior to
him, mother of the defendant No.1 enjoyed the same. The
defendant No.2 purchased portion of the suit schedule property
under registered sale deed and enjoying the same. The plaintiff
never objected defendant No.1 from enjoying the said property
as an absolute owner. The plaintiff is having brother and
sisters, whereas the present suit is filed without impelading
them and without obtaining any permission from them, as such
the suit is bad for non joinder of necessary parties. Defendant
No.1 offered to sell part of the suit schedule property for his
family necessities, as such he purchased the part of the suit
schedule property to an extent of 57.77 square yards consisting
of ground floor + first floor situated at new Town Road,
Mahabubnagar for total consideration of Rs.7,36,000/- through
registered sale deed bearing document No.10102 of 2012 dated
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08.11.2012 and since then he is in possession enjoyment of the
same and his name was also mutated in the revenue records.
The defendant No.2 is a bona fide purchaser and he is not
connected with the disputes between plaintiff and defendant
No.1 and thus, prayed to dismiss the suit.
6. Defendant No.3 filed written statement by contending that
the suit of the plaintiff is not maintainable as the plaintiff has
no title over the suit schedule property. Defendant Nos.3 and 4
obtained premises from defendant No.1 on lease for a period of
two years and thereafter defendant no.1 informed him that he
sold the property to defendant No.2. Therefore, the defendant
No.3 obtained fresh lease from defendant no.2 and started hotel
business. The plaintiff made several complaints, as such he
was compelled to file a suit against plaintiff and defendant No.1
and obtained the interim order. The defendant No.3 continued
in the said premises for certain period and recently defendant
No.4 left the hotel business, as such he alone is continuing the
said business.
7. Defendant No.4 did not appear before the Court despite
receive of summons, as such he was set ex parte.
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8. Based on the pleadings, the learned trial Court has
framed the following issues:
I) Whether the plaintiff is entitled for declaration of
title of the suit property?
II) Whether the plaintiff is entitled for recovery of
possession of the suit property?
III) Whether the plaintiff is entitled for mesne profits?
IV) Whether the suit is bad for non joinder of necessary
parties?
V) To what relief?
9. On 22.01.2018 the following additional issues were
framed by the learned trial Court":
I) Whether defendant No.2 is a bona fide purchaser of
the part of the suit schedule property under
document No.10102 of 2012 dated 08.11.2012?
II) Whether the suit is barred by limitation?
10. Before the trial Court, the plaintiff got examined himself
as PW1 and got marked Exs.A1 to A19 and on behalf of
defendants, DWs 1 and 2 were examined but no documentary
evidence was adduced. On hearing the rival contentions, the
learned trial Court decreed the suit with costs. Aggrieved by the
same, the defendant Nos.1 and 2 preferred the present appeal to
set aside the impugned judgment.
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11. Heard both sides and perused the record including the
grounds of appeal.
12. There is no dispute with regard to the relationship between
the parties and there is also no dispute with regard to the identity of
the suit schedule property and as to who is in possession of the
same. Though the plaintiff alleged to have purchased 540 square
yards, the dispute is with regard to 115.57 square yards i.e., the suit
schedule property. The defendant Nos.3 and 4 are the tenants in
respect of part of suit schedule property having obtained lease of the
property from defendant No.1 and they are not claiming any rights
over the part of suit schedule property, however, since, the plaintiff
is seeking eviction of defendant Nos.3 and 4 from part of suit
schedule property, they were made as parties to the suit. Moreover,
even as per the version of defendant No.1 in his evidence, his
tenants i.e., defendant Nos.3 and 4 have vacated the part of suit
schedule property. The defendant No.1 sold part of suit schedule
property to an extent of 57.77 square yards to defendant No.2. Since
the defendant No.2 is claiming rights in respect of part of suit
schedule property from defendant No.1, the title and bona fide
ownership of defendant No.2 is subject to the adjudication of dispute
between the plaintiff and defendant No.1. Once, defendant No.1 is
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able to establish that he is the absolute owner of the suit schedule
property, then certainly, defendant No.2 is entitled to claim
ownership over the part of the suit schedule property. Thus, it is
just and appropriate to resolve the dispute between plaintiff and
defendant No.1 initially and then to resolve the other ancillary
disputes connected to the suit.
13. The contention of the plaintiff is that the suit schedule
property is self acquired property of his father and on the other hand
the contention of the defendant No.1 is that the suit schedule
property is purchased jointly by the grandfather, father of the
plaintiff and father of defendant No.1 out of the joint family funds, as
such the father of the plaintiff is not the absolute owner of the
property. Admittedly the land of 540 square yards was registered in
the name of father of PW1 vide document No.585 of 1960. If at all
the said property was purchased out of joint family funds, then
certainly the property ought to have been shared equally among the
two brothers i.e., father of PW1 and father of DW1. Defendant No.1,
who was examined as DW1 admitted in his cross examination that
father of PW1 orally gifted the mulgies in favour of his mother in
1984. If really the property of 540 square yards was purchased out
of the joint family funds, there was necessity for the father of PW1 to
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orally gift the part of the said property in the name of mother of DW1
after 24 years of the purchase of 540 square yards of land, more
particularly, the suit schedule property i.e., 115.56 square yards
which is not the half share of 540 square years. There is no
explanation on the part of defendant No.1 as to why the landed
property of 540 square yards was not divided into equal shares
between father of PW1 and father of DW1, more particularly when it
is contended by the defendant No.1 that the said property was
purchased by selling the joint ancestral family properties.
Furthermore, it is the contention of the defendant No.1 that since
the father of PW1 was elder member of the family, the said property
of 540 square yards was registered in his name. But as per the
version of DW1, the said property was purchased by grandfather of
DW1, father of PW1 and father of DW1. Thus, the elder member of
the family is none other than grandfather of PW1 and DW1 but not
father of PW1. In such circumstances, as per the contention of the
defendant No.1, the property ought to have registered in the name of
elder member of the family i.e., the grandfather of PW1 and DW1 but
in the name of father of PW1. Since the landed property of 540
square yards was self acquired property of father of PW1, the same
was registered in the name of father of PW1.
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14. It is the contention of the appellant/defendant No.1 that the
suit schedule property was orally gifted by father of PW1 in favour of
mother of defendant No.1/DW1 and that the said gift is valid
because it satisfied all the requirements that are required to be
considered as a valid "hiba". In Hafeeza Bibi and others v.
Shaikh Farid (dead) by LRs and others 1, wherein the Honourable
Supreme Court observed as under:
"34. Now, as regards the facts of the present case, the gift
was made by Shaik Dawood by a written deed dated February 5,
1968 in favour of his son Mohammed Yakub in respect of the
properties `A' schedule and `B' schedule appended thereto. The
gift - as is recited in the deed - was based on love and affection
for Mohammed Yakub as after the death of donor's wife, he has
been looking after and helping him. Can it be said that because a
declaration is reduced to writing, it must have been registered?
We think not. The acceptance of the gift by Mohammed Yakub is
also evidenced as he signed the deed. Mohammed Yakub was
residing in the `B' schedule property consisting of a house and a
kitchen room appurtenant thereto and, thus, was in physical
possession of residential house with the donor. The trial court on
consideration of the entire evidence on record has recorded a
categorical finding that Shaik Dawood (donor), executed the gift
deed dated February 5, 1968 in favour of donee (Mohammed
Yakub), the donee accepted the gift and the donor handed over
the properties covered by the gift deed to the donee. The trial court
further held that all the three essentials of a valid gift under the
Mohammadan Law were satisfied. The view of the trial court is in
accord with the legal position stated by us above. The gift deed
dated February 5, 1968 is a form of declaration by the donor and
not an instrument of gift as contemplated under Section 17 of the
Registration Act. As all the three essential requisites are satisfied
by the gift deed dated February 5, 1968, the gift in favour of
defendant 2 became complete and irrevocable."
15. In Katwal Abdul Hakeem Sab (died) by LRs v. Nasyam
Sufiya and others 2 the High Court for the Andhra Pradesh
1 (2011) 2 WLC 503
2 2010 (1) ALD 805
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observed as under:
"14. Oral gift is a typical facility which is available exclusively to Muslims
. In the ordinary course, a gift is required to be made through a registered
document as provided for under Section 123 of the Transfer of Property
Act. When such a vital requirement as to registration is relaxed, the proof
in the form of oral evidence must be unequivocal and clinching. The
benefit of any doubt or contraction has to be given in favour of the person
, who is adversely affected in the event of the plea or oral gift being
accepted. Any relapse in this regard is likely to provide handle to an
individual to trample the rights of other persons to succeed in accordance
with law. Therefore, the plea raised by the 1st defendant , as regards
oral gift was rightly repelled by the trial Court and lower appellate
Court."
16. In Sitesh Chandra Choudhury V. Poziruddin ahmed and
others 3 the High Court of Gauhati held as under:
"The alleged donor and the donees admittedly were
Mahomedans and governed by the Mahomedan personal law. In
order to prove a valid gift under the Mahomedan Law, the plaintiff
must prove the three essentials of a gift namely, (i) a declaration
of gift by the donor, (ii) an acceptance of the gift, express or
implied, by or on behalf of the donee, and (iii) delivery of
possession of the subject of the gift by the donor to the donee."
17. In Sultan Miya V. Ajibakhatoon Bibi and others 4 the
High Court of Calcutta observed that the three requirements
under the Mahomedan law for the validity of gift are (1) there
must be clear and unambiguous intention of the donor to make
a gift; (2) there must be acceptance of the gift express or implied
on the part of the donee and (3) there must be delivery of
possession of the property which is the subject-matter of the
gift. It was further observed that if any one of the three
formalities is not gone through although there may be a written
3 AIR 1973 Gauhati 96
4 AIR 1932 Calcutta 497
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instrument of gift, it is nevertheless invalid under the
Mahomedan law.
18. In Abdul Rahim and others v. SK. Abdul Zabar and
others 5 the Honourable Supreme Court observed as under:
"12. In Maqbool Alam Khan vs. Mst. Khodaija & ors. [(1966)
3 SCR 479], it was held:
"The Prophet has said: "A gift is not valid without
seisin". The Rule of law is:
"Gifts are rendered valid by tender,
acceptance and seisin.--Tender and acceptance are
necessary because a gift is a contract, and tender
and acceptance are requisite in the formation of all
contracts; and seisin is necessary in order to
establish a right of property in the gift, because a
right of property, according to our doctors, is not
established in the thing given merely by means of the
contract, without seisin." [See Hamilton's Hedaya
(Grady's Edn.), p. 482] Previously, the Rule of law
was thought to be so strict that it was said that land
in the possession of a usurper (or wrongdoer) or of a
lessee or a mortgagee cannot be given away, see
Dorrul Mokhtar, Book on Gift, p. 635 cited in Mullic
Abdool Guffoor v. Muleka. But the view now prevails
that there can be a valid gift of property in the
possession of a lessee or a mortgagee and a gift may
be sufficiently made by delivering constructive
possession of the property to the donee. Some
authorities still take the view that a property in the
possession of a usurper cannot be given away, but
this view appears to us to be too rigid. The donor may
lawfully make a gift of a property in the possession of
a trespasser. Such a gift is valid, provided the donor
either obtains and gives possession of the property to
the donee or does all that he can to put it within the
power of the donee to obtain possession."
19. There is absolutely no doubt with regard to the principle
laid down in the above said decisions. But in order to prove the
oral gift, it is settled law that in terms of declaration of oral gift,
5 (2009) 6 SCC 160
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it must be demonstrated that the donor made a public
statement in the "presence of witnesses" or otherwise that he
gifted the property to the donee and that he divested himself of
ownership of the property by handing possession to the donee.
The offer to make a gift must be clearly consensual and
conveyed purposefully, with no ambiguity. One of the most
important parts is that this declaration, from the donor's
perspective, must not be tainted by a mala fide intent to
defraud, but must be genuine and bona fide. The declaration
requires witnesses or testimonies stating the donor's gifting of
the property to the donee, and it cannot be made in segregation
without them.
20. In Mohammad Mustafa v. Abu Bakr and others 6 the
Honourable Supreme Court observed that any gift given under
duress, undue persuasion, or deception cannot be considered a
declaration and the gift was void. The delivery of possession, on
the other hand, is an important part of a gift under Muslim law.
According to section 123 of the Transfer of Property Act, an
unregistered gift of immoveable property is void in law and
cannot convey title to the donee. Because of the provisions of
AIR 1971 SC 361
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section 123, no spoken gift of immovable property can be made.
Without a formal instrument, just delivering possession does
not confer any title. However, an oral gift is acceptable under
Muslim law. But in order to consider a gift to be lawful, the
giver must relinquish full ownership and jurisdiction over the
subject of the gift. The basics of a gift, according to
Mohammedan law, are the donor's statement of gift, the donee's
acceptance of the present, and the conveyance of possession of
everything the subject of the gift is capable of. The provisions of
section 123 of the Transfer of Property Act have no bearing on
this rule of Mohammedan law, and hence a registered
instrument is not required to verify a gift of immovable property.
Possession may not always imply actual physical possession,
but rather possession of the property's ability to be given. In
terms of declaration, it must be demonstrated that the donor
made a public statement in the "presence of witnesses" or
otherwise that he gifted the property to the donee and that he
divested himself of ownership of the property by handing
possession to the donee. Under these conditions, a
Mohammedan can make an oral gift of his immovable gift.
Because possession is required for the validity of a gift, it
follows that if possession is not delivered, the gift is invalid. A
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legitimate gift can be influenced by delivery of possession under
Mohammedan law, and if delivery of possession occurs, the
presence of an unregistered document of gift does not render
the gift void. A gift might be given orally or in writing. If the
declaration, valid acceptance followed by the prompt delivery of
possessions, fulfilled all the fundamental requirements of a
valid donation, i.e. there was no reduction of any of the aspects
to writing, it shall remain entirely valid.
21. In the event of a dispute over the gift's legitimacy the High
Court of Gujarat in Fatmabibi v. Abdul Rehman Abdul Karim 7
observed that the gift met just one criteria, namely, a
statement, and that the gift was invalid because the other two
conditions, namely, acceptance and delivery of ownership, were
not met. An oral gift must be conclusively established explicitly
in the event of a disagreement. Here, the three essential
components of a lawful gift, namely declaration, acceptance,
and delivery of ownership, as well as other criteria, must be
proven. It must be shown that the donee does not own the
donated property at the time of the dispute, but that the donee
must immediately return it.
7 AIR 2001 GUJ 271
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22. Thus, from the above discussion, it is clear that when
there is a dispute with regard to the legitimacy of an oral gift
('hiba'), the donee need to establish that all the three conditions
for a valid 'hiba' are satisfied. In the case on hand, there is no
dispute with regard to the delivery of possession because
admittedly the defendant No.1 is in possession of the alleged
gifted property but whether it is for permissive possession or
actual possession will be adjudicated in the upcoming
paragraphs. There is also no dispute with regard to the
acceptance of the property by the donee as it is the specific case
of the defendant No.1 that his mother has accepted the gift and
been in possession of the said property since 1984. But one of
the most crucial conditions of valid "hiba" is declaration.
Whether the donor has made a declaration in the presence of
any witness is a crucial aspect that needs to be adjudicated.
DW1 admitted that his elder brother told him about the oral
gift. But his elder brother was not examined before this Court
and moreover, for the first time, the defendant No.1 has stated
about his brother informing about the oral gift to his mother
and this aspect was not pleaded either in the written statement
or in the chief examination affidavit. Admittedly, none of the
eyewitnesses were examined to establish that the donor has
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made a declaration in respect of oral gift made by him in favour
of mother of DW1. When the donee failed to establish any one
of the conditions required for considering a gift as valid "hiba"
as per the decision of Sultan Miya case, the said gift cannot be
considered as valid 'hiba'.
23. When the alleged oral gift by father of PW1 in favour of mother
of DW1 was not proved, the subsequent gift deed by mother of DW1
in favour of DW1 in respect of suit schedule property cannot be
considered as valid gift and thereby the defendant No.1 cannot be
held as owner of the suit schedule property.
24. The following are some of the grounds raised by
appellant/defendant No.1 in this appeal:
"6. The lower court has failed to consider that the
defendant's (ought to be plaintiff's) father who was the
Govt.employee did not purchase the plot admeasuring 540
square yards vide sale deed doc no.585/ 1960 out of his salary
has (ought to be "as') his salary was meagre.
7. The lower court has failed to consider that in the year
1964 when the appellant's and respondent's grandfather sold
away the ancestral agricultural land, the said amount was used
to clear the debts taken for the purpose of disputed property.
The appellant's father was subsequently in full time at hotel and
kirana business in the said common property.
8. The lower court has failed to consider that the house that
was constructed on the said property and development of the
property was done at later stage with the balance money that
was received from sale consideration of the agricultural land.
9. The lower court has failed to consider that in the
narration of the sale deed of the doc.no.585/1960 the sale
consideration of the plot which was Rs.1500/- was received in
instalments that is Rs.1,210/- was received in net cash and the
remaining amount of Rs:290/- will be received before the sub
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registrar Mahabubnagar. which clearly shows that the plaintiff
in the OS 88/2013 did not have complete amount to purchase
the said plot and it goes to prove that they had to generate the
money and hence sell the common agriculture land to clear the
debt that was created for the purchase of the disputed plot."
25. In Biraji @ Brijraji and another v. Surya Pratap and
others 8 the Apex Court observed that in the absence of
pleadings submitted at the appropriate stage within the
stipulated time, any amount of evidence submitted later on, will
not be taken into consideration by the Court. The above
grounds were not pleaded by the defendant No.1 in the written
statement, as such, the appellant is not entitled to plead the
above grounds at this appellate stage. Even otherwise, as per
ground No.9, the plaintiff has no complete amount to purchase
the said plot and had to generate the money. If the said plea is
considered to be true and correct, an inference can be drawn
that out of Rs.1500/-, Rs.1210/- was contributed from plaintiff
side and there is no contribution at all from the side of the
defendants.
26. It is the contention of the appellant/defendant No.1 that his
family along with their grandfather stayed in the suit schedule
property as co-owners and not as tenants though the said property
was registered in the name of father of plaintiff. On the other hand,
8 Civil Appeal Nos.4883-4884 of 2017 decided on 03.11.2020
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it is the contention of the plaintiff that since the father of the
defendant No.1 had no source of income, the father of plaintiff has
permitted the family of defendants stay in the suit schedule
property. As seen from the record, the defendant Nos.3 and 4, who
were alleged to be tenants of mulgies forming part of suit schedule
property, filed suit for injunction against plaintiff and defendant
No.1. If at all the defendant No.1 alone is the exclusive owner of the
suit schedule property, there is no necessity for the tenants to file
suit against plaintiff as well as defendant No.1 and they could have
filed suit only against the defendant No.1. If at all the father of the
defendant No.1 was the exclusive owner of the suit schedule
property, there could have been some document to establish that
father of defendant No.1 is the owner of the suit schedule property
but no documentary evidence was adduced on behalf of the
defendants. Even if we presume that father of defendant No.1 was
the absolute owner of the suit schedule property, there was no
necessity for the father of the plaintiff to offer the suit schedule
property to the mother of defendant No.1 in the form of alleged oral
"hiba".
27. The learned counsel for the appellant by referring to Section
41 of the Transfer of Property Act contended that as the former
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owner has expressly indicated transferee to be the owner of the
property in question and the said transferee transfers the same for
consideration, in my opinion such a matter would be one where the
property has marketable title vesting in the donee with valid rights
passing to any transferee from him. It is pertinent to note that as
stated supra, the defendant No.1 failed to establish the prime
conditions to consider a valid 'hiba' i.e., the declaration as to when,
where and in whose presence the declaration was made by father of
the plaintiff in favour of mother of defendant No.1, the question of
expressly indicating transfer to be the owner of the property does not
arise. Moreover, there is no material before this Court to establish
that the transferee transferred the property for consideration. There
is no whisper either in the written statement or in the chief
examination of DW1 that there was any consideration at the time of
transfer of alleged property.
28. It is the contention of the defendant No.1 that father of
plaintiff died in the year 2009 and there was already a registered gift
deed in the name of Smt. Anwari Begum i.e., mother of DW1 but on
the other hand, it is contended that the gift made by father of
plaintiff was oral gift. It is further contention of defendant No.1 that
father of the plaintiff never opposed or made efforts to cancel the gift.
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It is pertinent to note that when the alleged gift was 'oral gift' more
particularly when the defendant No.1 failed to establish the
conditions for considering the said oral gift as valid "hiba", the
question of cancelling the alleged gift does not arise.
29. It is the contention of the defendant No.1 in one of the grounds
that the appellants were in possession of the suit schedule property
since 1960 and filing of the suit in the year 2013 after lapse of 53
years is barred by limitation. It is to be seen that defendant No.1
admitted in the cross examination as DW1 that his grandfather and
father sold their land in Tornal Village of Medak District in 1964 and
settled in Mahabubnagar. When the father of defendant No.1 settled
at Mahabubnagar in the year 1964, the question of family of
defendant No.1 being in possession of the suit schedule property
since 1960 does not arise. Moreover, the trial Court in the
impugned judgment elaborately discussed about the limitation
aspect and arrived to the conclusion that as per Article 65 of the
Limitation Act the suit is filed within 12 years i.e., either from 2010
(date of knowledge of plaintiff about the alleged gift deed executed by
mother of defendant No.1 in favour of defendant No.1) or 2002 (date
of execution of alleged gift deed executed by mother of defendant
No.1 in favour of defendant No.1). There is no material placed by the
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appellant to show that the plaintiff is having knowledge about the
alleged gift deed even prior to 2002.
30. It is the contention of the plaintiff that the possession of
defendants in the suit schedule property is permissive in nature and
not otherwise. As per Ex.A10 i.e., order dated 20.08.2013 in
I.A.No.146 of 2013 in O.S.No.39 of 2013, the plaintiff was shown as
respondent No.3, wherein the plaintiff herein filed counter and
contended that in the year 1966 his father's younger brother Mohd.
Ibrahim Khan came from Bidar and he is none other than father of
first respondent (defendant No.1 herein) and started residing in the
house of father of respondent No.3. It was further stated that in the
year 1972 the father of first respondent passed away and the mother
of first respondent continued to reside in that room along with first
respondent. It was further stated that respondent No.1 did not evict
the suit schedule property by making false promises and let out the
schedule property to the petitioners (defendant Nos.3 and 4 herein),
who constructed kitchen batti towards residential room of third
respondent on the southern side of the suit schedule premises, due
to which entire room and surrounding area became heated with high
degree and apart from that the petitioners have closed the four feet
lane which leads to the resident of respondent No.3. Thus, the
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above counter averments disclose that though the defendant No.1
was allowed permissive possession in respect of suit schedule
property for considerable period, since the tenants i.e., defendant
Nos.3 and 4, who were inducted into the suit schedule property by
way of lease through defendant No.1, have made it difficult to the
plaintiff to lead a normal and peaceful file. Perhaps that might be
the reason as to why the plaintiff is not allowing the defendants to
continue in the suit schedule property.
31. As per Ex.A13 i.e., notice, the Commissioner, Mahabubnagar
Municipality has directed the defendant No.1 to furnish ownership
documents, link documents etc., within 15 days from the date of
receipt of the notice. It was further observed in the said notice that
H.No.1-5-37/1 is standing in the name of father of plaintiff i.e.,
Mohd.Ismail Khan.
32. As per Ex.A15 i.e., Endorsement dated 28.08.2017 made by
Office of the Mahabubnagar Municipality, the defendant No.1 stated
in the enquiry that property gifted to him by his paternal uncle late
Sri Md. Ismail Khan by writing on a cigarette pocket case and also
his paternal brother Sri A.K.Habeeb - ur - Rahman Khan elder son
of Late Sri Md. Ismail Khan gifted the said property by writing on a
piece of paper. On one hand, the defendant No.1 is contending that
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the gift was an oral one and on the other hand as per Ex.A15 the gift
was made on a cigarette pocket, which is quite contrary to the
version adopted by the defendant No.1 in the written statement and
chief examination affidavit of DW1.
33. It is the contention of the defendant No.1 that the trial Court
failed to consider Ex.A8 i.e., ownership certificate issued by the
Municipal Authorities don 29.08.2002 based on the gift deed. The
plaintiff in support of his contention relied upon Ex. A19 i.e.,
Proceedings dated 28.12.2017 issued by the Commissioner,
Mahabubnagar Municipality, wherein it was stated that defendant
No.1 has not submitted any document through his mother got the
possession of the said property. It was further observed that as per
the gift deed bearing document No.1982/2002, dated 16.05.2002
(gift deed executed by mother of the defendant No.1 in favour of
defendant No.1) the total extent area in respect of house No.1-5-
37/1 is 115.56 square yards but as per the field verification report
(Ex.A16) the total extent area is 92 square yards and as per the
Memo No.293/2013 dated 24.01.2013 (Ex.A17) there is no link
document to document No.1982/2002. Accordingly, the Proceedings
No.A1/7514/2014, dated 28.04.2016 that were issued in the name
of defendant No.1 in respect of H.No.1-5-37/1 and part of said house
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No.1-5-37/1/A were suspended and the ownership was restored in
the name of Sri Late Md. Ismail Khan.
34. It is the contention of the defendant No.1 that Exs.A12 to A19
are fabricated document. It is pertinent to note that the plaintiff has
filed originals of Exs.A13 to A19. But no efforts were initiated by the
defendants to establish that the said documents were forged and
fabricated. Except contending that the said documents are forged
and fabricated, the defendants have not placed any material before
this Court to substantiate their contentions.
35. In one of the grounds of appeal, the appellant-defendant No.1
contended that the family of the plaintiff and defendant No.1 has
common mess/kitchen in the house until 1984. From this
contention, it is very much clear that the father of the plaintiff had
permitted the family of his brother i.e., father of the defendant No.1
to stay in a portion of the house as father of defendant No.1 was not
having any source of income. Though the defendant No.1 contended
that his father used to run hotel business, there is no material
placed before the Court to substantiate the said contention.
36. The appellant-defendant No.1 contended that father of plaintiff
in order to avoid insecurity of the family of defendant No.1 over the
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suit schedule property by any of his LRs, has orally gifted a part of
the property in the name of mother of defendant No.1. If at all the
father of defendant No.1 was co-owner of the property purchased by
father of the plaintiff, then what made the mother of defendant No.1
to accept the suit schedule property, which is not equal share of the
property purchased by the father of the plaintiff. If at all the
property was purchased by sale of joint family properties and the
family of defendant No.1 were deprived of their legitimate share, then
certainly they would have filed a suit before competent civil court
and seek the remedy. It is not even the case of defendant No.1 that
they were aggrieved by the improper distribution of the property
purchased by sale of joint family properties.
37. In Uppara Anjinappa (died) and others v. T. Khasim Sab
(died) per LR and others 9 this Court observed that the plea of
adverse possession is a double edged sword and any plea of adverse
possession contains an admission that the opposite party is the
owner of the property but the said title of the opposite party has
been extinguished because of the open hostile possession with
animus by the claimant for the statutory period, therefore, by
pleading adverse possession a party admits the title of the opposite
9 2018 (5) ALT 511 (S.B.)
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party which however is said to be extinguished. In the case on hand,
the defendant No.1 is taking the plea of adverse possession by
contending that their family has been in continuous possession of
the suit schedule property for the last three decades. But in view of
the principle laid down in the above said decision, by pleading
adverse possession, a party admits the title of the opposite party,
which however, is said to be extinguished. In the case on hand, the
defendant No.1 in the cross examination as DW1 admitted that his
grandfather and father sold their land in Tornal Village of Medak
District in 1964 and settled in Mahabubnagar. But even as per the
version of the defendant No.1 it is the father of the plaintiff, who has
purchased an extent of 540 square yards in the year 1960 itself. It
is not the contention of the defendant No.1 that right from the date
of purchase of 540 square yards they are in possession of the suit
schedule property, which is part and parcel of above mentioned
extent of 540 square yards. Thus, it is the family of the plaintiff,
who were in possession of 540 square yards of land including the
suit schedule property right from the date of purchase. Moreover,
the plaintiff has submitted that the possession of the family of the
defendant No.1 in respect of suit schedule property is 'permissive';
the defendant No.1 without any right or authenticity has alienated
part of suit schedule property to defendant No.2; part of suit
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schedule property was leased to defendant Nos.3 and 4, who alleged
to have fixed kitchen batti in the leased portion (mulgi) that resulted
in severe heat in the residential portion of the plaintiff; the
defendants also alleged to have closed the way through which the
plaintiff can reach his residential portion; and unable to bear the
same, the plaintiff was constrained to file the suit.
38. It is the contention of the appellant that the trial Court failed
to consider Exs.A3 and A4. A perusal of Ex.A4 clearly discloses that
the donor i.e., mother of defendant No.1 declared that she is the
owner and possessor of ancestral house and she did not whisper
anything in Ex.A4 about the oral gift alleged to have been declared
by the father of plaintiff in favour of mother of the defendant No.1.
There is no averment in Ex.A4 about the link document or the mode
of acquiring the said property by mother of defendant No.1.
39. Thus, viewed from any angle, the defendant No.1 neither
established that his father is the absolute owner of the suit schedule
property nor established that the suit schedule property was orally
gifted by father of plaintiff to the mother of defendant No.1 and more
particularly the defendant No.1 has taken multiple pleas, which are
contrary to his other pleas. The defendant No.1 in support of his
contentions, has not produced any documentary evidence except
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examining himself and defendant No.2, who is the subsequent
purchaser of part of suit schedule property from defendant No.1.
Since the defendant No.1 failed to establish his ownership over the
suit schedule property, the defendant No.2 cannot claim right or
ownership over the part of suit schedule property. Though the
defendant No.1 took several pleas, no scrap of paper is filed to
substantiate those pleas.
40. In view of the above facts and circumstances, this Court is of
the considered view that the trial Court after considering all the
relevant aspects has arrived to a right conclusion in decreeing the
suit in favour of the plaintiff and against the defendants. Thus,
there is no necessity to interfere with the findings of the trial Court.
Hence, the appeal is devoid of merits and it is liable to be dismissed.
41. Accordingly, this appeal is dismissed. There shall be no order
as to costs.
As a sequel, pending miscellaneous applications, if any, shall
stand closed.
_______________________________
JUSTICE M.G. PRIYADARSINI
Date: 23.02.2024
AS
