Mobeen Ahmad vs Smt. Sarwari Begam

Sibghat Ullah Khan, J.—Heard learned counsel for the parties at the admission stage.

This is defendant''s second appeal arising out of O.S. No.593 of 2000 which was decreed in part by Ist Additional Civil Judge (Senior Division), Court No.14 Saharanpur on 07.09.2005. The suit was decreed for possession, however, it was dismissed for damages. Against the said decree defendant-appellant filed Civil Appeal No.31 of 2005 which was dismissed by District Judge, Saharanpur on 14.01.2008 hence this second appeal. Plaintiff and defendant are nephew and aunt.

Property in dispute is one of the houses which belonged to Mohd. Hussain, who left behind three sons Saeed Ahmad, (father of defendant-appellant Mobeen Ahmad), Naseem Ahmad, Abdul Hameed and one daughter i.e. plaintiff-respondent Smt. Sarwari Begam. In the plaint it was stated by Smt. Sarwari Begam that she was a widow having a sick daughter with weak mind and plaintiff was residing in the house in dispute which had come in her share through inheritance after the death of her father and she was getting her expenses met by doing menial jobs at the houses of others. It was further pleaded that on 01.06.1996 when she had gone for work along with her daughter, defendant forcibly occupied the house in dispute by breaking open the lock.

The defendant pleaded that Smt. Sarwari Begam orally gifted the property on 04.05.1985 to him. However, earlier defendant had filed O.S. No.330 of 1991 against the plaintiff-respondent basing his claim on oral gift dated 04.05.1985. The said suit was dismissed on 14.01.1993 and appeal filed against the same was also dismissed. Thereafter matter was not carried further.

The precise case of the plaintiff was that her father had left behind three houses which all were within the same compound and under family arrangement the house in dispute had come in her share. The other two sons of Mohd. Hussain i.e. Naseem Ahmad and Abdul Hameed did not come forward to dispute the allegation of plaintiff.

Both the courts below held that no oral gift was executed by Smt. Sarwari Begam and decision in the earlier suit operated as res judicata. I do no find least error in the findings recorded by the courts below disbelieving the alleged oral gift which are also finding of the fact. Plaintiff is a widow having a daughter of weak mind and she was residing in the house in dispute hence there was absolutely no occasion or reason for her to orally gift the house in dispute to the defendant.

Moreover, the findings recorded in the earlier suit operated as res judicata. Accordingly, there is absolutely no merit in this second appeal and no question of law is involved in it hence it is dismissed under Order 41 Rule 11 CPC.