1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.575 OF 2009 Mohamad Hanif Shaikh Umar Bagwan, died through L.Rs.: 1­a Parwin w/o Mohd. Hanif Bagwan, age: 45 years, Occ: Household, R/o House No.4, Citizen Complex, Mukund Nagar, Near Bombay Hospital, Ahmednagar. 1­b Kanis Fatima Mohd. Ashpak, age: 30 years, Occ: Household, R/o Bhoipura, Kacheri Road, Jafarkhan Chal, Jalna. 1­c Farhin Tanwir Bagwan, age: 28 years, Occ: Household, R/o Govindpura, Ahmednagar. 1­d Ubedulla Mohd. Hanif, age: 23 years, Occ: Business, R/o House No.4, Citizen Complex, Mukund Nagar, Near Bombay Hospital, Ahmednagar. 1­e Shagusta Mohd. Hanif, age: 21 years, Occ: Education, R/o House No.4, Citizen Complex, Mukund Nagar, Near Bombay Hospital, Ahmednagar. 1­f Rabiya Basri Mohd. Hanif, age: 19 years, Occ: Household, R/o House No.4, Citizen Complex, Mukund Nagar, Near Bombay Hospital, Ahmednagar. 2 1­g Mohd. Juned Mohd. Hanif, age: 18 years, Occ: Education, R/o House No.4, Citizen Complex, Mukund Nagar, Near Bombay Hospital, Ahmednagar. Appeliants Versus 1 Shaikh Mohamad Yakub Shaikh Umar Bagwan, age: major, Occ: business; 2 Shaikh Mohammad Usman Shaikh Umar Bagwan, age: major, Occ: business; Both residents of 1790, Karsetji Road, Ahmednagar. Respondents Mr.S.V.Gangapurwala, advocate for appellants. Mr.V.S.Bedre, advocate for Respondent No.1. CORAM: R.M.BORDE, J. DATE : 08 th October, 2009. P.C.: 1 Heard Shri S.V.Gangapurwala, learned Counsel for appellants and Shri V.S.Bedre, learned Counsel for Respondent No.1. 2 Appellant – original plaintiff instituted Regular Civil Suit No. 192/87 claiming decree of perpetual injunction in respect of house property bearing Nos.718 and 719, situate at Rahuri. Plaintiff and defendants are brothers inter se. According to the plaintiff, property belongs to him; and defendants, having no concern, are trying to interfere in his possession. It is contended that father has given the property to the plaintiff by oral gift during his life time. It is his contention that the oral gift is followed by a deed 3 of declaration executed on 21.12.1977 and in view of the deed of declaration, his possession is confirmed 3 Defendants controverted the contentions raised by plaintiff and denied exclusive title and possession of the plaintiff over suit property. 4 The trial Court, however, after considering the evidence led by the parties, came to the conclusion that the essential requisites for valid gift under Mohamedan Law have not been established by the plaintiff and it cannot be inferred that plaintiff has received possession of disputed property. The trial Court, as such, dismissed the suit. The judgment and decree passed by the trial Court was subjected to challenge in Regular Civil Appeal No. 229/1994, which came to be heard and disposed of by 2 nd Extra Joint District Judge, Ahmednagar, who was pleased to dismiss the same. 5 I have perused the judgments delivered by both the Courts below. Plaintiff, although has stated before the Court that there was oral gift by his father thereby gifting away suit house to him exclusively, however, there is no pleading to that effect raised by the plaintiff in the plaint. The first appellate Court has observed that plaintiff has nowhere pleaded in the plaint that there was oral gift in his favour by his late father Shaikh Umar. Plaintiff, for the first time, in his oral evidence, put forth the case in respect of oral gift. The first appellate Court has, thus, recorded that there is variance between pleadings and evidence. Taking into consideration all these aspects, I am of the view that the Courts below have recorded proper findings on appreciation of evidence placed on record by the parties. The findings of facts recorded by the Courts below need not be interfered while exercising jurisdiction under Section 100 of the Code of Civil Procedure. No 4 substantial question of law arises for consideration in the appeal. 6 Appeal, therefore, stands dismissed. Pending Civil Application does not survive and stand disposed of. (R.M.BORDE) JUDGE ******* adb/sa57509