THE HONOURABLE SRI JUSTICE A.GOPAL REDDY SANo.593/2011 Date of Order: 1-7-2011 Between: Shaik Janabi ..Appellant/plaintiff and 1. Shaik Nagulmeera and others ..Respondents/defendants The Court made the following: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY SA No.593/2011 Judgment:: The appellant herein is the plaintiff in OS No.45/2003 on the file of Principal Junior Civil Judge, Jaggaiahpet. She filed the present second appeal under Section 100 of the Code of Civil Procedure questioning the judgment and decree dt. 16-3-2011 passed in AS No.7/2009 by the Senior Civil Judge, Nandigama, whereby and whereunder the learned Judge allowed the appeal setting aside the judgment and decree dt. 16-4-2009 passed in OS No.45/2003 on the file of Principal Junior Civil Judge, Jaggaiahpet granting permanent injunction in favour of the plaintiff and dismissed the suit filed by the plaintiff herein for permanent injunction. For the sake of convenience, the parties hereinafter will be referred to as arrayed in the suit. The plaintiff filed the suit for permanent injunction restraining the defendants, their men, agents, servants and their followers from interfering with the peaceful possession and enjoyment of the plaintiff over the plaint schedule property, stating that the plaintiff is the daughter of one Shaik Masthan Saheb through his first wife, Hussain Bee. Shaik Masthan Saheb had two wives and he had two daughter including the plaintiff through his first wife and three daughters and three sons ie., the defendants through his second wife. According to the plaintiff, during the life time of her father, Masthan Saheb, in the year 1990 he declared and gifted the site covered under the plaint schedule property out of love and affection in favour of the plaintiff in the presence of elders and relatives of the family, which has been accepted by the plaintiff. The site was delivered to the plaintiff. Since then, she has been in possession and enjoyment of the same along with her husband and children by raising a hut therein. The defendants who have no right over the plaint schedule property tried to encroach into the property. The defendants 2 and 3 filed a written statement stating that the plaintiff was given in marriage and sent to her in-laws house for leading marital life at Magallu and she lead marital life for some time and later she requested her father and brothers including the defendants to allow her to reside along with them in the plaint schedule property and thereby she and her husband can attend cooli work along with them. The defendants and their father allowed the family of the plaintiff to reside along with them. As such, the plaintiff had no manner of right or possession over the plaint schedule property and she never resided in the schedule property independently as claimed by her. The father of the defendants never gifted and delivered possession of the plaint schedule property to the plaintiff. The plaint schedule property is in possession and enjoyment of the entire family and all the family members are residing therein and the same is under the control and management of the defendants. The first defendant filed a memo adopting the written statement of 2nd and 3rd defendants. On the pleadings of the parties, the trial court framed the following issues: 1. Whether the plaintiff is entitled for permanent injunction as prayed for? 2. To what relief? On behalf of the plaintiff, P.Ws.1 to 4 were examined and marked Ex-1 and A-2. On behalf of the defendants, D.W.1 was examined and Exs.B-1 to B-3 were marked. Learned trial court upon considering the evidence adduced by the parties held that P.W.2, who is none other than the sister of P.W.1, P.W.3 who is a third party and P.W.4 who is the maternal of the plaintiff and the defendants categorically stated that the plaint schedule property was gifted by delivering possession by Shaik Masthan to P.W.1, who is the plaintiff in the suit. The certificate covered under Ex.A-1 issued by the Village Secretary and also Sarpanch of Shemohammadapet stating that the plaintiff-P.W.1 is having a thatched house bearing Door No.3-52 in Shermohammadpet Panchayat and house numbers list issued by the Village Secretary covered under Ex.A-2 clinchingly prove that the plaintiff is in possession and enjoyment of the plaint schedule property as a rightly owner and holding so decreed the suit. On appeal being filed by the defendants, the lower appellate court allowed the appeal stating that according to the plaintiff, the property was gifted in her favour in the year 1990 by her father, but she has not stated in whose presence her father gifted the property. The presence of P.Ws.2 to 4 was not spoken to by P.W.1 in her chief affidavit and no plea as such was taken in the plaint. In the absence of such a plea either in the plaint or in the chief affidavit, the evidence of P.Ws.2 to 4 cannot be looked into. P.W.2 admitted in her cross-examination that by the date of filing of the suit, they and their brothers ie., defendants are resided together and after filing of the suit, the defendants themselves left the house and she resided with her father from her birth as there was no marriage to her and also with her elder sister. In view of the admission made by P.W.2 in her cross-examination, it is clear that the plaintiff and the defendants are residing together in the plaint schedule hut as on the date of filing of the suit. The persons who issued Exs.A-1 and A-2 are not examined to prove its contents. P.W.3 admitted in his cross- examination that he cannot say the boundaries of Ac.0-02 cents of site given to the plaintiff and the site existing on South West corner was given to the plaintiff. P.W.4 admitted in his cross-examination that South East corner site was given to P.W.1. In view of these admissions, it is clear that P.Ws.3 and 4 have no knowledge about the existence of the property given to P.W.1 and their evidence is contradictory to each other. Further, the property under dispute is an assigned land and the parties inter se can enjoy the property and they have no right to alienate the same and holding so allowed the appeal setting aside the judgment and decree passed by the trial court and dismissed the suit filed by the plaintiff. Aggrieved by the judgment and decree passed by the lower appellate court, the plaintiff preferred the present appeal. Learned counsel for the appellant/plaintiff strenuously contends that three essentials under Mohammadan Law, namely, (1) declaration of the gift by the donor; (2) acceptance of the gift by the donee; and (3) delivery of possession, are necessary for a gift to take effect. Since the evidence of P.Ws.2 to 4 amply establishes about the gift of the property and same has been acted upon in view of Exs.A-1 and A-2, the lower appellate court is not justified in reversing the well considered finding of the trial court. There is no dispute with regard to the proposition of law as laid by the Supreme Court in HAFEEZABIBI V. SK.FAIRD (2011) 5 SCC 654), on which reliance is placed by the learned counsel for the appellant. Except stating that the property was gifted to her by her father and she has been residing in the said property, the plaintiff has not stated when she was gifted and in whose presence the property was gifted to her. Added to the same, the plaintiff herself examined as P.W.1 by filing affidavit in lieu of chief-examination. In the chief-examination, she has not stated that the property was gifted in the presence of P.Ws.2 to 4. It is no doubt fairly well settled that the oral evidence is worthless and is of no value for determining whether the admissions contained in certain documents are wrong in the absence of pleadings and issues. {See Central Bank of India v. H.P.Jalan (AIR 1972 SC 1274)} The evidence of P.Ws.3 and 4 has been carefully analyzed by the lower appellate court, which observed that the evidence of P.Ws.3 and 4 is contradictory to each other stating that P.W.3 stated that the site on the South West corner was given to th plaintiff, whereas P.W.4 stated that the South East corner site was given to the plaintiff. Therefore, the essential ingredients, declaration of the gift and delivery of possession, to make the gift complete are lacking in the present case. As rightly held by the lower appellate court that mere filing of Exs.A-1 and A-2 will not create any right or title to the plaintiff because the persons connected with Exs.A- 1 and A-2 are not examined by the plaintiff to prove its contents and the said documents are issued from the record maintained. Further, the evidence of P.W.2 shows that the plaintiff and the defendants are residing together in one house ie., suit schedule hut as on the date of filing of the suit. If that be the same, the plaintiff has no exclusive possession over the suit schedule property for seeking permanent injunction against other co- owners. In view of the same, the lower appellate court rightly allowed the appeal setting aside the judgment and decree of the trial court and dismissed the suit, which does not give rise any substantial question of law to be decided in the second appeal. The Second Appeal is accordingly dismissed. No costs. _______________ A.GOPAL REDDY, J. Dt.1-7-2011 kmr