Mohammad Hanif @ Cheem vs Mohammad Idris <BR>Smt. Chunni Begam (Since Deceased) Vs Mohammad Idris and Others

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

Mohd. Idris and Mohd. Hanif are real brothers. Their mother was Smt. Chunni Begum. Smt. Chunni Begum instituted O.S. No. 599 of 1995 against Mohd. Idris and others including Mohd. Hanif. Mohd. Idris instituted O.S. No. 716 of 1995 against his real brother Mohd. Hanif. Mohd. Hanif is appellant in both these second appeals. The suit instituted by Smt. Chunni Begum (O.S. No. 55 of 1995) was initially decreed ex parte, however the said decree was afterwards set aside and suit was restored on 12.11.1999 and thereafter both the suits were consolidated. Additional Civil Judge, Senior Division, Court No. 26, Agra through judgment and decree dated 22.10.2002 dismissed the O.S. No. 599 of 1995 and decreed O.S. No. 716 of 1995. Against the said judgment and decree, two appeals were filed by the present appellant Mohd. Hanif being Civil Appeal No. 226 of 2002 and Civil Appeal No. 11 of 2003. A.D.J./ Special Judge, E.C. Act, Agra dismissed both the appeals through judgment and decree dated 19.03.2010, hence these second appeals.

Smt. Chunni Begum had died during pendency of suit and Mohd. Hanif, who was one of the defendants in the suit instituted by her (O.S. No. 599 of 1995) got himself transposed as appellant.

Mohd. Idris in his suit (O.S. No. 716 of 1995) asserted that he had purchased a house through registered sale deed dated 22.03.1965 from Smt. Gafuran, who was his mother''s mother (nani), i.e. mother of Smt. Chunni Begum. It was further pleaded by Mohd. Idris that a room and some small land of the house purchased by him in 1965 was given by him to his younger brother Mohd. Hanif as licencee and licence had been cancelled before filing of the suit. Accordingly, it was prayed that through mandatory injunction Mohd. Hanif must be directed to remove his occupation from the portion in dispute and its actual use, occupation and possession should be handed over to the plaintiff.

In the property in dispute one Purshottam Lal was tenant. After purchasing the property through registered sale deed dated 22.03.1965 Mohd. Idris instituted eviction proceedings against Purshottam Lal (Case No. 75 of 1967, decided by R.C. & E.O. on 31.05.1968). Thereafter under compromise dated 08.09.1968, Purshottam Lal vacated the house in dispute and gave its possession to Mohd. Hanif. He also stated that since 1965 he was paying all the taxes etc.

Smt. Chunni Begum in her suit (O.S. No. 599 of 1995) stated that her mother Smt. Gafuran had executed an oral gift in her favour of the house in dispute. The courts below have mentioned that in the plaint initially the date of alleged oral gift was mentioned as 07.01.1964, which was later on converted into 07.01.1946 by over-writing. Both the courts below found that Mohd. Hanif could not prove the oral gift to Smt. Chunni Begum, who died in 1997.

Mohd. Hanif was born after 1946 hence his statement regarding oral gift from her nani to her mother was nothing but hearsay. The other witness was Nisar Ahmad Quraishi, D.W.-2. Both the courts below held that he completely failed to prove the necessary ingredients of oral gift under Muslim Law. He stated that Smt. Gafuran resided in the house in dispute till 1962 and thereafter his daughter Chunni Begum along with her husband and sons started residing therein. He further stated that Purshottam Lal resided in the house in dispute since 1953 for five or six years and during that period Chunni Begum and Gafuran resided in a different house. Smt. Chunni Begum never asserted her right against tenant. Agreement between Purshottam Lal and Mohd. Idris took place on 08.09.1968, according to which house was vacated on the said date and possession was given to Mohd. Idris. Smt. Chunni Begum nowhere asserted that she had let out the house to Purshottam Lal. In the agreement dated 08.09.1968, it was stated that until 22.03.1965 rent had been paid to the previous owner Smt. Gafuran. In case Smt. Chunni Begum had been owner of the house in dispute through oral gift, she would have proceeded against registered sale deed dated 22.03.1965.

The most important fact is that Smt. Gafuran even in the year 1962 had instituted a suit against Purshottam Lal (O.S. No. 581 of 1962). In case she had given the property in dispute through oral gift to her daughter Smt. Chunni Begum, there was no sense of filing suit against Purshottam Lal, the tenant by her.

Both the courts below rightly held that the theory of oral gift was utterly bogus and oral gift had not been proved and Mohd. Idris was owner of the house in dispute by virtue of registered sale deed dated 22.03.1965.

Accordingly, in my opinion, there is absolutely no error in the findings recorded by the courts below. No question of law is involved in this second appeal. Both the appeals are therefore dismissed under Order XLI Rule 11, C.P.C.