Mohammad Yaseen vs Shaik Ahmed
2025 Latest Caselaw 2109 Tel

Telangana High Court

Mohammad Yaseen vs Shaik Ahmed on 13 February, 2025

     HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

                 SECOND APPEAL NO.65 OF 2025
JUDGMENT:

Challenging the validity and legality of the judgment and

decree dated 26.12.2024 passed by the V Additional District Judge,

Bodhan, Nizamabad district, confirming the order dated

29.01.2024 in E.A.No.72 of 2019 in E.P.No.27 of 2019 in O.S.No.23

of 2012 passed by the Senior Civil Judge, Bodhan, the present

Second Appeal is filed.

2. The appellants herein are the petitioners/claim petitioners,

respondent No.1 herein is the 1st respondent/DHr and respondent

No.2 herein is the 2nd respondent/JDr before the first Appellant

Court.

3. The facts of the case in brief, which led to filing of the

present Second Appeal, are that the appellants are the sons of

respondent No.2/JDr; that the mother of the appellants had orally

gifted the petition schedule property in their favour on 01.01.2008

and they accepted the same and they are in possession and later,

their mother/JDr executed a gift deed vide document LNA, J

Nos.2358/2012 and 2359/2012, dated 03.04.2012 in their favour in

respect of the petition schedule property; that thereafter the

relationship between the appellants and their mother was strained

due to internal disputes.

4. It is further averred that on 23.08.2019 the respondent

No.1/DHr came to the schedule property and threatened the

appellants to dispossess them claiming that he filed a suit in

O.S.No.23 of 2012 for specific performance of agreement of sale

dated 29.01.2010 and obtained a decree on 26.06.2019 and obtained

a sale deed from the Court vide document No.7326/2019 dated

24.06.2019 and he filed E.P.No.27 of 2019 dated 26.07.2019 for

issuance of warrant of possession of schedule property mentioned

in the decree in O.S.No.23 of 2012. It is further averred that prior

to entering into an agreement of sale dated 29.01.2010, their

mother had orally gifted the petition schedule property to them

and their mother never executed any agreement of sale dated

29.01.2010 in favour of respondent no.1/DHr, which is a created

one to grab the schedule property. In those circumstances, LNA, J

petitioners constrained to file E.A.No.72 of 2019 in E.P.No.27 of

2019.

5. Respondent No.1/DHr filed counter affidavit before the

lower Court denying the averments made in the application and

contended that he purchased the schedule property from the

respondent No.2/JDr under an agreement of sale and as she failed

to execute a sale deed, he had filed the suit and it was decreed and

later, he filed E.P.No.119 of 2024 and obtained a registered sale

deed in respect of the schedule property. It is further averred that

respondent No.2/JDr contested the suit and filed her written

statement and in the written statement, she did not plead that the

schedule property was orally gifted to her sons; that he filed

I.A.No.92 of 2012 under order XXXIX Rules 1 and 2 CPC, seeking

temporary injunction not to alienate the schedule property and

obtained injunction order and the same was served on the

respondent No.2/JDr on 28.03.2012; that immediately thereafter,

respondent No.2/JDr executed two gift deeds dated 03.04.2012 in

favour of their sons showing wrong boundaries intentionally to LNA, J

protract the suit proceedings and the said gift deeds are not

binding on the respondent/DHr.

6. During the course of enquiry, on behalf of petitioners, Pws.1

to 5 were examined, Ex.A1 to A8 were marked. On behalf of

respondent No.2/JDR, Dws.1 and 2 were examined and Ex.R1 &

R2 were marked. On behalf of respondent no.3/DHr, he himself

was examined as RW.3 and marked Exs.R3 to R7.

7. The trial Court, on due consideration of oral and

documentary evidence and the contentions of both the parties, vide

order dated 29.01.2024 dismissed the claim petition and observed

as under:

"22. ... The conditions required for oral gift are not fulfilled. There are several circumstances which has come on record to infer the said fact, which are as follows: i) the JDr never referred about the oral gift in the suit proceedings, ii) Ex.R1 which is the judgment and decree in OS No.23/2012 is silent on this aspect; iii) Exs.P1 and P2 do not have recital about the oral gift and the necessity to execute these documents. In Mohammedan Law, oral gift is valid, if conditions mentioned in Sections 149 and 150 are fulfilled. In the instant matter, petitioners claim that for their legal necessities they have obtained Exs.P1 and P2. They failed to explain what was the LNA, J

legal necessities. In my view these documents were brought into existence only to defeat the right of DHr in the petition schedule property...

The claim petitioners did not produce documents to prove that even prior to execution of Exs.P1 and P2 they were in possession of the petition schedule property.

23. The petitioners claim that after declaring oral gift in their favour, there arose disputes between them and their mother and since then they are residing separately, but even this statement is found incorrect. The material elicited from the cross-examination of P.W.4 shows that both the claim petitioners and the JDr are residing in Ward No.12, which suggest that they are all residing together. The evidence elicited from cross-examination of P.W.2 shows that both P.Ws.2 and 3 are friends of the 1st claim petitioner. The evidence of P.W.4 shows that he is native of Mangalpahad village and was at Saudi Arabia for ten years. The petition schedule property is situated at Yedapally village and whereas P.W.4 is resident of Mangalpahad village. There is no evidence on record to show that as on the date of oral gift he was present in India. Generally, oral gifts are made in the presence of elders and close relatives and P.Ws.2 to 4 are not related to the claim petitioners and the JDr and they are not the caste elders. This is a strong circumstance to doubt the existence of oral gift. Apart from this the evidence on record does not show about the delivery of possession of the property when oral gift was made.

24. According to the DHr, temporary injunction was granted not to alienate the petition schedule property and after LNA, J

receipt of said notice, Exs.P1 and P2 were brought into existence. Record shows that on 22.03.2012 temporary injunction was granted in favour of the DHr restraining the JDr from alienating the petition schedule property till 29.03.2012. "

8. Aggrieved by the order dated 29.01.2024, the appellants filed

the A.S.No.3 of 2024 before the V Additional District Judge at

Bodhan, Nizamabad district, (first Appellate Court).

9. The first Appellate Court, being the final fact-finding Court,

re-appreciated the entire evidence and the material available on

record and dismissed the appeal vide judgment dated 26.12.2024

with the following observations:

"(k) Further, though the JDr contested the suit in OS No.23 of 2012, she never asserted that she gifted the schedule property to her sons either orally or documentary under Exs.P1 and P2. The suit was filed on 22.03.2012 and the same was decreed on 26.06.2014, whereas the JDr state that she orally gifted the schedule property to her sons in the year 2008 itself, but it is not disclosed, even pendency of the suit, she did not disclose the execution of the gift deeds under Exs.P1 and P2. Certainly, the JDr and petitioners having knowledge only on 03.04.2012 they brought the gift settlement deed under Exs.P1 and P2 to defeat the judgment and decree to be passed in favour of the DHr/ plaintiff. Having knowledge of pendencyof the suit against the JDr, the petitioners intentionally avoided to implead in the suit and put their claim, this conduct of petitioners and JDr shows that they intentionally created the gift settlement deed under Exs.P1 and P2 i.e., the transfer of the EP schedule property to the petitioners under Exs.P1 and P2/gift settlement deed are fraudulent transfer, as such it does not bind the respondent/DHr, it is rather to say that the document under Exs.P1 and P2 are fraudulent documents. Therefore, the LNA, J

execution court rightly dismissed the claim of the petitioners and it does not call for any inference of this Court."

10. Heard Sri Challa Srinivasa Reddy, learned counsel for the

appellants. Perused the record.

11. Learned counsel for appellants argued that the trial Court

decreed the suit without proper appreciation of the oral and

documentary evidence and the first Appellate Court also

committed an error in confirming the judgment and decree passed

by the trial Court. Learned counsel further contended that the first

Appellate Court ought to have seen that oral gift was made in the

presence of elders and close relatives and P.Ws.2 to 4 and under

the provisions of the Mohammandian Law, oral gift is valid and as

the same was consented and accepted by the appellants and that it

needs no registration.

12. A perusal of the record discloses that both the Courts below

concurrently held that the oral and documentary evidence

adduced by the respondent No.2/DHR is cogent and thus, he has

proved his suit claim.

LNA, J

13. Perusal of the record would also disclose that the respondent

No.1/DHr filed the suit in O.S.No.23 of 2012 on 22.03.2012 for

specific performance of agreement of sale dated 29.01.2010 against

the respondent/JDr and the same was contested by the respondent

No.2/JDr; that respondent/DHr also filed I.A.No.92 of 2012 in the

said suit under Order XXXIX Rules 1 and 2 seeking temporary

injunction not to alienate the schedule property and obtained ex

parte injunction and the same was served on the respondent/JDr

on 28.03.2012; that later suit was decreed on 26.06.2014, and he

filed E.P.No.119 of 2014 and obtained a registered sale deed. It is

further disclosed that respondent/DHr filed EP No.27 of 2019

dated 26.07.2019 for issuance of warrant of possession of schedule

property mentioned in the decree in OS No.23 of 2012. Whereas

the contention of the respondent No.2/JDr is that she orally gifted

the schedule property to her sons in the year 2008 itself, however,

she did not disclose execution of the gift deeds under Ex.P1-gift

deed dated 03.04.2012 and Ex.P2-gift deed dated 03.04.2012 in the

written statement filed in the suit nor during the pendency of the LNA, J

suit. Therefore, the same are not binding on the respondent

No.1/DHr.

14. It is also relevant to note that the respondent No.1/DHr had

obtained interim injunction restraining the respondent No.2/JDr

from alienating the schedule property on 22.03.2012 and the same

was served on the respondent/JDr on 28.03.2012; that in clear

violation of interim orders, the respondent/JDr executed two

registered gift deeds i.e., Exs.P1 and P2, both dated 03.04.2012 in

favour of her sons in respect of schedule property, which clearly

shows the conduct of the respondent/JDr and, therefore, it has to

be inferred that respondent/JDr executed the gift deeds only to

defeat the judgment and decree to be passed in favour of the

respondent/DHr.

15. In view of above discussion, this Court is of the considered

opinion that the appellants failed to raise any substantial question

of law to be decided by this Court in this Second Appeal. In fact,

all the grounds raised in this appeal are factual in nature and do

not qualify as the substantial questions of law in terms of Section

100 C.P.C.

LNA, J

16. It is well settled principle by a catena of decisions of the

Apex Court that in the Second Appeal filed under Section 100

C.P.C., this Court cannot interfere with the concurrent findings on

facts arrived at by the Courts below, which are based on proper

appreciation of the oral and documentary evidence on record.

17. Further, in Gurdev Kaur v. Kaki 1, the Apex Court held that

the High Court sitting in Second Appeal cannot examine the

evidence once again as a third trial Court and the power under

Section 100 C.P.C. is very limited and it can be exercised only

where a substantial question of law is raised and fell for

consideration.

18. Having considered the entire material available on record

and the findings recorded by the trial Court as well as the first

Appellate Court, this Court finds no ground or reason warranting

interference with the said concurrent findings, under Section 100

C.P.C. Moreover, the grounds raised by the appellants are factual

in nature and no question of law much less a substantial question

of law arises for consideration in this Second Appeal.

(2007) 1 Supreme Court Cases 546 LNA, J

19. Hence, the Second Appeal fails and the same is accordingly

dismissed at the stage of admission. There shall be no order as to

costs.

Pending miscellaneous applications, if any, shall stand

closed.

______________________________ LAXMI NARAYANA ALISHETTY,J Date: 13.02.2025 kkm