Syed Asadulla vs Khaleelulla Khan

Anand Byrareddy, J—Heard the learned Counsel for the appellant and the learned Counsel for the respondent.

The appellant was the defendant before the trial court in a suit for declaration and injunction. It was the case of the plaintiff that his grand father Alaf Khan had two sons, by name K. Ahmed Alikhan and Abdul Rahman Khan. The suit schedule property bearing Corporation No. 10, situated within the boundary shown in the suit schedule property was purchased by the plaintiffs father Khazi Ahmed Ali Khan and his uncle Abdul Rahman Khan from one Appaiah Naidu through a registered sale deed dated 15.8.1933. The plaintiffs uncle Abdul Rahman Khan died in the year 1950. The plaintiffs father Khazi Ahmed Ali Khan and the legal heirs of Abdul Rahman Khan had effected a partition under a registered partition deed dated 28.8.1979 and in the year 1980, the plaintiffs father had died leaving behind the plaintiff Khaleelulla Khan and Hassan Ali Khan. In the year 1994, the brother of the plaintiff Hassan Ali Khan sold his share to the plaintiff through a registered sale deed on 17.1.1994 and khata was effected in the name of the plaintiff and the revenue records of the local authority in respect of the suit schedule property also stood in favour of the plaintiff and he was paying taxes in respect of the property. The defendant had been permitted to reside in a portion of the suit schedule property and it is shown as suit schedule ''B'' property. According to the plaintiff, after the purchase of his brother''s share, the defendant had paid rents to the plaintiff till the year 1995 and thereafter, he had stopped payment. This had constrained the plaintiff to file a petition for eviction under the Karnataka Rent Control Act, 1961 in HRC 522/1996 on the file of the Court of Small Causes, Bengaluru. The said petition was however dismissed with an observation that the parties shall agitate their rights before a Civil Court by seeking appropriate relief of declaration about the alleged title, which was sought to be set up by the parties. It is thereafter alleged that the defendant sought to obtain electricity connection to the suit schedule property without seeking his permission and the plaintiff was constrained to file a writ petition in that regard preventing him from doing so. When the defendant tried to interfere with the suit schedule property by digging trenches, the plaintiff had filed a suit in OS 2725/1997. So also yet another suit in OS 3465/1997 and ultimately, the present suit for declaration and injunctory reliefs.

It was the plaintiffs case that it was for the first time in the HRC petition that the defendant had filed two documents, which are styled as ''Hiba'' or memorandum of oral gift dated 15.5.1975, said to have been executed by the plaintiffs father in favour of the defendant''s grand mother and that the defendant''s grand mother in turn, had executed a oral gift in favour of the defendant, as recorded in the Memorandum of Hiba dated 10.8.1978. It was sought to be pointed out by the plaintiff that the gift deed dated 15.5.1975 was allegedly attested by the Additional Judge, Court of Small Causes, Bengaluru on 16.5.1975 and the Registrar of the Court of Small Cases, Bengaluru had issued an endorsement to state that the Additional Judge, Court of Small Causes, had been established only with effect from October 1977 and therefore the attestation said to have been made on the gift deed was apparent forgery and was patently fraudulent. It was further claimed that the donor namely, his maternal grand mother had acquired the property under a registered document dated 17.8.1960 and on inquiry with the District Registrar''s office, the plaintiff had learnt that the Sub-Registrar''s office at Rajajinagar was not at all in existence on the date of the execution of the document. It was therefore emphasized by the plaintiff that the gift deed was patently forged and could not be considered at all.

It was further pointed out that when the admitted signature of the father of the plaintiff on the registered sale deed when compared with the alleged signature on the partition deed, there was variance and hence it could not be accepted and even the boundaries shown in the two gift deeds namely, the gift deed in favour of the grand mother of the defendant No. 1 and the defendant did not tally.

The defendant, on the other hand, entered appearance and had asserted that Khazi Ahmed Ali Khan had gifted the property to his sister Ameena Khatoon and she had accepted the same and had become the absolute owner and she was in possession as on 10.9.1978. Ameena Khatoon had executed a gift deed in favour of the defendant during her life time and delivered possession and he had accepted the gift and was in lawful possession. It was vehemently denied that he was a tenant in respect of the premises and that the father of the plaintiff had issued Lawyer''s notice on 2.8.1979 and the defendant had replied as on 20.8.1979 wherein he had declared that he was not a tenant and he was in possession of the suit schedule property under his own right as he had got the same under a gift deed from Ameena Khatoon, namely, the maternal grand mother of the defendant.

Further, it was contended by the defendant that the eviction petition filed by the plaintiff had been dismissed. It was evident that the plaintiff had filed civil suits in respect of the property. That the gift deeds could not be characterized as being false and forged as they met the requirement of Muslim Law and could not be negated.

The defendant had taken a specific contention as regards the suit being barred by limitation in the following words.

That in view of the defendant having replied to the legal notice issued by the plaintiff in the year 1979, wherein he had specifically contended that he was in possession of the suit schedule property in his individual right and that the plaintiff not having taken action till 1996 and having filed the suit after lapse of 20 years, the suit was clearly barred by limitation. This is reiterated in Paragraph 24 of the written statement to hold that the suit was barred by time.

The trial court, on the basis of the pleadings of the parties, has framed the following issues:--

"1. Whether the Court fee paid is insufficient?

Does the plaintiff prove that the gift deeds/Hiba dated 15.5.1975 and 10.8.78 were forged and concocted documents?

Does he prove his title to ''B'' schedule property?

Does he prove that the defendant was in occupation of the ''B'' schedule property as a tenant under his brother Hassan Ali Khan and as because his tenant from 1993 consequent upon the purchase of his brother''s share?

Is he entitled to possession of ''B'' schedule property and mesne profits?"

The court below has answered issue Nos. 1, 2, 3 and 5 in the affirmative and issue No. 4 in the negative and has decreed the suit as prayed for, whereby it was declared that the plaintiff was the owner of the suit schedule property and the Hiba dated 15.5.1975 and 10.8.1978 were declared as forged documents and the defendant was directed to hand over possession of the suit ''B'' schedule property to the plaintiff within three months.

It is this which is sought to be questioned in the present appeal.

The learned Counsel for the appellant would contend that insofar as the gift deeds or rather the memorandum of gift deeds regarding oral gift made by the father of the plaintiff in favour of the his maternal grand mother and the gift made by his maternal grand mother in favour of the defendant were recognized as valid in Muslim Law. The said conveyance does not require registration. The three essential requirements for a Hiba to take effect are that there must be declaration of gift, acceptance of the same by the donee and that possession must be shown of the donee. In the instant case on hand, the memorandum produced indicates the declaration of the gift and the acceptance by the defendant and that he has admittedly been in possession since the suit was to be filed for recovery of the suit schedule property. Therefore, the three essential requirements of gift having been met, the same could not be characterized as being forged documents, merely on arguments canvassed by the plaintiff to the effect that the same had been tested by the Judge of the Additional Court of Small Causes in the year 1975 when the court itself was established in the year 1977. In respect of this, there was no acceptable evidence to demonstrate that the court was indeed established only in the year 1977. The mere assertion that there was an endorsement issued by the Registrar of Court of Small Causes, to state that the Judge, Additional Small Causes Court was established in the year 1977 could not be accepted without examining the author of the said endorsement. And hence that could not be proved enough of the document being forged one.

Further, the comparison of signatures of the plaintiffs father on the partition deed vis-�-vis the gift deed in favour of the plaintiffs maternal grand mother, was also the satisfactory manner of comparing the signatures as the father of the plaintiff was apparently affixing his signature both in English as well as in Urdu and therefore the inconsistency sought to be pointed out could not take away the authenticity of the document.

Further, the said appellant having raised a claim of ownership as early as in the year 1979, the cause of action for the plaintiff to seek declaration to the contrary arose and the suit having been filed only in the year 1998 was clearly barred by limitation. The court below has completely glossed over this aspect of the matter when the suit ought to have been dismissed on that ground alone namely that the suit was barred by limitation.

The appellant has also filed an application seeking to produce additional documents which are as follows:--

"(1) Marriage Certificate dated 3.9.1950, to demonstrate that signature of the plaintiffs father would tally with the signature found on the Marriage Register Extract,

(2) Legal notice dated 2.8.1979 issued by the plaintiff,

(3) Reply issued to the legal notice dated 30.8.1979, to support the contention that the signature of the plaintiffs father on the gift deed could not be characterized as a forged signature and further to substantiate the contention that the suit was barred by limitation when there was claim by the defendant as early as in the year 1979 as the owner of the property and therefore, the cause of action for the plaintiff arose as early as in 1979."

However, as rightly pointed out by the learned Counsel for the respondent, the application would not be maintainable. To invoke the power of this court under Order XLI Rule 27 of the Code of Civil Procedure, 1908 (Hereinafter referred to as the ''CPC, for brevity), to permit the appellant to tender additional evidence such as this would require the appellant to meet the conditions prescribed under Order XLI Rule 27 of the CPC and since those conditions are apparently not met, the application would have to be rejected. In that, the appellant has not indicated as to why these documents could not be produced before the trial court, which would have enabled the plaintiff to meet the case of alleged bar of limitation. For the question of limitation is always a mixed question of fact and law and it is apparently so in the present case on hand. In that, the plaintiff has claimed that the defendant stopped paying rents in the year 1995 and on repeated demands, the defendants started to create nuisance by causing damage to the property and seeking to change the nature of the property and therefore he was constrained to file the suit which was well within the period of limitation. The long interval from the year 1979 till the filing of the suit is explained by the fact that the defendant was an orphan and had the pity of the plaintiff and his family, who had permitted him to reside along with his grand mother in the suit schedule property and it is only after the death of the grand mother, that the defendant had resorted to creating and concocting the documents to raise a claim of ownership. In any event, he had thereafter paid rents and on his intermittent failure to pay rents and other acts on his part, that the suit was filed.

The learned counsel for the appellant would, therefore, contend that the judgment of the court below be set aside.

The learned counsel for the respondent, on the other hand, would seek to justify the judgment of the court below and would contend that insofar as the gift deeds are concerned, even if the reasoning of the court below is to be negated in arriving at a conclusion that the documents were forged, it was even then necessary for the appellant to have established the said gift deeds. The contention that the declaration that the three requirements of valid Hiba namely, that there should be declaration by the donor, that the donee must receive gift and the donee must be in possession of the suit schedule property, having been established, is an incorrect proposition. The hiba is an oral gift and the documents sought to be produced is said to be a memorandum of the oral gift. It is attested by the two witnesses and an advocate who has drafted it. None of those witnesses were examined and neither the advocate''s name is known nor was he examined. In which event, the declaration made by the grand mother or the plaintiffs father in respect of the two gift deeds cannot be said to have been established. Mere declaration found on the document ought to have been established by examining the witnesses shown in the deed. In absence of which, the documents would not stand on their strength and added to the suspicious circumstances that have been thrown up, which the court below has accepted, the documents having been negated, cannot be faulted. Insofar as the claim that the appellant was in possession of the suit schedule property is not denied. He was in possession of the suit ''B'' schedule property along with his maternal grand mother from a long time and even before the purchase of the property by the plaintiffs father. However, his possession was that of a tenant under Hassan Ali and after the purchase of the share of Hassan Ali Khan, the defendant was indeed paying rents to the plaintiff and it is only in the year 1995 that he had stopped paying rents. The question of limitation running against the plaintiff with effect from 1979 therefore is negated.

The defendant had merely claimed that there was a claim of ownership as early as in 1979 and hence the cause of action arose, is further diluted by Exhibit P.9, wherein the defendant has raised an inconsistent plea of adverse possession, in that, the plaintiff could not claim his ownership and also claim adverse possession. It would presuppose that the ownership of the plaintiff is admitted in setting up a plea of adverse possession and hence the contention that the cause of action arose in the year 1979 and the suit was barred by limitation is negated by the defendant''s own action in also setting up the plea of adverse possession subsequently. Therefore, the inconsistent stand of the defendant was self-defeating and would not enable the defendant to support his case at all.

Insofar as the additional documents sought to be produced by the defendant is concerned, the learned counsel would point out that in terms of Order XLI Rule 27 of the Code of Civil Procedure, 1908, the conditions prescribed therein ought to be satisfied in order to enable the defendant to produce such additional documents. As there are no reasons assigned as to why they could not be produced before the trial court when it was very much in the possession of the defendant, the same cannot be sought to be produced at this point of time. And especially when the documents were sought to be produced in support of the plea of limitation and that it is a mixed question of fact and law, it would place the plaintiff at a disadvantage in having to meet to those documents at this point of time. The documents are only now produced and even otherwise, in view of the consistent stand of the defendant, the same would not serve any purpose and cannot be permitted to be filed at this stage.

Therefore, if the defendant is enabled to succeed on the basis of the two gift deeds that are set up, the defendant would have no legs to stand insofar as his defence is concerned. The learned Counsel would therefore contend that the judgment and decree of the court below ought to be affirmed.

While the learned counsel for the appellant, by way of reply, would insist that the suit ought to have been dismissed on the ground of limitation alone as there was a specific plea with reference to the exchange of notices in the year 1979 when the claim of ownership was set up and since the suit was filed only in the year 1998, it was hopelessly barred by limitation.

On these rival contentions, the plaintiff has placed reliance on a registered sale deed and partition deed in support of his title to the property as against which the defendant claims under two gift deeds, one in favour of his maternal grand mother and one in his favour executed by the maternal grand mother. Both these documents are in the nature of memorandum of oral gift or styled as Hiba, as known in Muslim Law. Though the requirement of registration of such conveyance is not contemplated in Muslim law, it is well established that there are three essential requirements in order to establish that there was a declaration of gift deed. It was incumbent on the appellant to have established this by examining independent witnesses, who were witnesses to the declaration of gift made by the donor. The memorandum of gift deed was attested by two witnesses and neither of them has been examined. It was also drafted by an advocate who was also not examined. Therefore, the primary requirement of the declaration of gift cannot be said to have proved notwithstanding that such conveyance does not require registration, when under the general law it is a compulsory requirement. Therefore, notwithstanding the special law pleaded, it cannot be said that the document has been established and when there are other infirmities pointed out with reference to the document, it becomes all the more necessary for the appellant to have established this document to remove such defects by examining the attesting witnesses. This not having been done, it cannot be said that the appellant is in a position to assert his title to the property. Therefore, mere claim of ownership as early as in the year 1979 having raised, does not give him a clear cause of action. The mere claim of ownership would not give rise to a cause of action since he was in possession of the suit schedule property along with his grand mother who was apparently in permissive possession of the property. Therefore, the contention of the plaintiff that it is only when the defendant started causing nuisance by continued several acts which are referred to hereinabove, that there was cause of action to file a suit is to be accepted. In that view of the matter, the findings of the court below in holding that the defendant had not established his case of having acquired the property under a gift deed cannot be faulted. However, the additional documents sought to be produced are not of much significance for the reasons stated above and cannot be taken on record for the requirement under Order XLI Rule 27 of the CPC is not met.

Consequently, the application stands rejected. The appeal is dismissed.