Sh. Naresh & Ors @APPELLANT@Hash State

VALMIKI J. MEHTA, J (ORAL)

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.Â

The facts of the case are that the appellants/plaintiffs pleaded that the suit properties were owned by their grandfatherrespondent 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.

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.

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

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

Whether the document dated 21.09.1991 is forged or fabricated? OPD

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

Whether the suit has not been properly valued? OPD

Relief.â€​

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.

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 selfserving 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 selfserving 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.

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.

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.Â

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.2Â wants to vacate the suit premises after taking time to vacate, however, the appellant no.2/plaintiff

no.2Â 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.1Â 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.1Â for being discharged from the case.

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.

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.