Mohammed Abbas vs Jaibunnisa

Ram Mohan Reddy, J.—This is defendants'' second appeal against concurrent findings. Respondent, since deceased, represented by her legal representatives, instituted O.S. No. 280 of 2008 before the Principal Civil Judge and Judicial Magistrate First Class, Chitradurga, for the following reliefs:

(a) mandatory injunction, directing appellants, arraigned as defendants to open the locks of the suit schedule properties being building premises and vacate and handover vacant possession of the said property;

(b) permanent injunction restraining the defendants from interfering with the possession of the suit schedule properties.

The case of the plaintiff was that one Fazlunnisa alias Hajuma, her mother, was the owner in possession and enjoyment of the suit schedule properties having fallen to her share in a registered partition deed dated 10-8-1987, whereafterwards, she executed a registered gift deed dated 27-3-2002 and put the plaintiff in possession of the suit schedule properties. It was alleged that the defendants who have no manner of right, title or interest over the suit schedule properties, when interfered with the plaintiff's peaceful possession and enjoyment of the said properties, during the second week of September 2006, resulted in the institution of O.S. No. 240 of 2006 on the file of the I Additional Civil Judge (Junior Division) and Judicial Magistrate First Class, Chitradurga, arraigning appellants as defendants. In that suit, defendants having denied the execution of the gift deed, resulted in framing issue 1 over proof of execution of the registered gift deed and after a trial, a finding in the affirmative, was recorded, holding that the plaintiff had proved execution of the gift deed by Fazlunnisa alias Hajuma.

In addition, it was asserted that in O.S. No. 240 of 2006, an additional issue framed over the claims of defendants 2 and 3, none other than appellants 2 and 3 herein that Fazlunnisa alias Hajuma had bequeathed the suit schedule properties, in their favour, under an unregistered "Hiba" dated 14-3-2001 accepted by the defendants 2 and 3 where under the suit schedule properties were gifted to them, was answered in the negative, holding that the Hiba was not proved. That suit, however, on the finding that the plaintiff was not in possession of the suit schedule properties on the date of institution of the suit, was dismissed by judgment and decree dated 18-6-2008 of the I Additional Civil Judge (Junior Division) and JMFC, Chitradurga. It is, thereafterwards, that O.S. No. 280 of 2008 was filed before which time on 16-7-2008 plaintiff secured vacant possession of a portion of the first floor and a small room situated behind the tailoring and saloon shop and affixed locks on those premises. According to the plaintiff, defendants illegally picked locks and trespassed into the said premises on 17-7-2008, whence, plaintiff lodged a complaint with the jurisdictional Police on 18-7-2008, who took action since the defendants were politically influential. It is during the pendency of the suit that the plaintiff died and her legal representatives were brought on record.

That suit was opposed by filing written statement, inter alia, contending that the suit was hit by the principles of res judicata and that it is the defendants who are in possession and enjoyment of the suit schedule properties since long and not in illegal possession; that the question of picking the locks and taking possession did not arise. Defendants admitted that they were arraigned as defendants in O.S. No. 240 of 2006 and issues that arise for consideration in the suit are identical to those that arose in O.S. No. 240 of 2006. It was asserted that the plaintiff was the daughter of one Abdul Khalaq, the elder brother of Abdul Samad whose wife was Fazlunnisa alias Hajuma, the alleged donor under the gift deed. The property that fell to the share of Fazlunnisa alias Hajuma under the partition deed dated 10-8-1987, it was asserted, belonged to Abdul Samad, the grandfather of defendants 2 and 3 and that Abdul Samad had a daughter by name Bathula who predeceased Abdul Samad. Since Abdul Samad, it was said, died intestate leaving behind the 1st defendant and his mother Fazlunnisa alias Hajuma as legal representatives, they partitioned the properties, whence the suit schedule properties fell to the share of the mother. In the partition deed, it was asserted that Fazlunnisa alias Hajuma expressed her intention that the properties that fell to her share, on her death, should go to her grandsons defendants 2 and 3 who were at that distance of time, minors. According to the defendants, that Fazlunnisa alias Hajuma, during the year 2001, wanted to proceed on Haj Pilgrimage and therefore decided to dispose of the properties fallen to her share, by which time, defendants 2 and 3 had attained majority and therefore executed the Hiba in favour of the defendants 2 and 3, which was accepted. In the light of the Hiba, it was contended that the gift deed dated 27-3-2002 in favour of the plaintiff, was of no consequence. In addition, it was asserted that the plaintiff was married to the younger brother of Fazlunnisa alias Hajuma by same Ameerjan and taking-undue advantage of the relationship and old age, created false documents to defeat the rights of defendants 2 and 3. Additionally, it was contended that defendants 2 and 3 are residing with their family in the upstairs portion of the suit schedule properties while the remaining portion is let out and rents received by them.

In the light of the pleadings of the parties, the Trial Court framed the following issues:

Whether the plaintiff proves that she is the owner was in possession of suit schedule property?

Whether the plaintiff further proves that on 17-7-2008 defendants have trespassed into suit schedule property and locked the suit schedule property with their lock?

Whether the plaintiff is entitled for the relief of mandatory injunction?

Whether the suit of the plaintiff is hit by principles of res judicata?

What order or decree?

While issue 3 was recast to the following effect:

Whether the plaintiff is entitled for the relief of mandatory injunction and other reliefs sought in the plaint?

The power of attorney holder of the plaintiff and legal representative 1 was examined as P.W. 1 and marked documents-Exs. P. 1 to P. 23. For the defendants, none were examined and no documents marked.

The Trial Court, having regard to the material on record and evidence both oral and documentary, returned findings in the affirmative over issues 1 to 3 and in the negative over issue 4 to allow the suit by judgment and decree dated 29-9-2011.

That judgment and decree of the Trial Court when carried in R.A. No. 47 of 2011, on a re-appreciation of the evidence on record, both oral and documentary, the I Additional Senior Civil Judge, Chitradurga, concurred with the reasons, findings and conclusions arrived at by the Trial Court, and dismissed the appeal by judgment and decree dated 7-9-2013. Hence the second appeal.

Although learned Counsel for the appellants, submits that in view of the denial of relationship of the plaintiff with Fazlunnisa alias Hajuma, as daughter and mother, respectively, the Trial Court failed to frame an issue over that dispute leading to recording of perverse findings on other issues, cannot be countenanced. It may be that the plaintiff asserted to be daughter of Fazlunnisa alias Hajuma which was denied by the defendants. But, the controversy brought before the Court was over the claim for possession of the suit schedule properties based upon the registered gift deed dated 27-3-2002, Ex. P. 3 executed by Fazlunnisa alias Hajuma in favour of the plaintiff. Therefore, it did not seriously matter as to whether the plaintiff was or was not the daughter of Fazlunnisa alias Hajuma.

Learned Counsel for the appellants is candid in his submission that the finding in the affirmative on issue 1 and negative on additional issue 1 by the I Additional Civil Judge (Junior Division) and JMFC, Chitradurga in O.S. No. 240 of 2006 by judgment and decree dated 18-6-2008, between the parties, inter se, in respect of the very same suit schedule properties, when not called in question is final and binding between the parties and therefore the execution of the gift deed-Ex. P. 3 when proved, the returning of a finding in the affirmative on issue 1 in O.S. No. 280 of 2008 over the ownership and possession of the suit schedule properties by the plaintiff, was fully justified.

To a question of this Court as to whether the Hiba executed by Fazlunnisa alias Hajuma in favour of defendants 2 and 3 - appellants 2 and 3, herein, was proved, learned Counsel is further candid in his submission that in the light of the finding in the negative over additional issue 1 in O.S. No. 240 of 2006 that the gift deeds were not proved, which has achieved a finality, the appellants'' claim to the suit schedule properties under "Hiba" was no more available.

The submission of the Learned Counsel that since O.S. No. 240 of 2006 was dismissed by judgment and decree-Ex. P. 19 therefore plaintiff is not entitled to the relief of mandatory injunction, having failed to establish to be in possession of the suit schedule properties under the gift deed, too cannot be countenanced. The word "Gift" is defined u/s 122 of the Transfer of Property Act, 1882 (for short, "TP Act") to mean "transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee". Such acceptance must be made during the lifetime of the donor and while he is still capable of giving and if the donee dies before acceptance, the gift is void. Section 123 of the TP Act provides for how transfers have to be effected.

The submission of learned Counsel for the appellants was the very same submission in O.S. No. 240 of 2006. Appellants who were defendants in that suit advanced a plea that the gift was not accepted and no possession was delivered and therefore the three ingredients of proof of gift under the Mohammedan Law i.e., gift by the donor; acceptance by the donee; delivery of possession of the property to the donee was not proved. This submission, was rejected by that Court while deciding O.S. No. 240 of 2006. The I Additional Civil Judge (Junior Division) and JMFC, Chitradurga, having appreciated the evidence tendered in O.S. No. 240 of 2006, recorded factual findings over the proof of execution of the gift by Fazlunnisa alias Hajuma in favour of the plaintiff as well as delivery of possession and taking of possession by the plaintiff donee of the suit schedule properties. That finding having become final and binding between the parties, since not carried in appeal, it is too far-fetched for the appellants to once again reagitate the very same submission. No other grounds are urged.

No substantial question of law arises for decision making. Appeal, devoid of merits, is dismissed.