IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. S.A. No. 619 of 2001 Abdul Qaiyyum @ Mohammad Qaiyyum (deceased), Mohd. Ahamad and others ..Appellants. Versus Smt. Safia Begam (deceased) Mohd Yunus and others … Respondents. Mr. M.C. Pandey, learned counsel for the appellants. Mr. Khalil Ahmad, learned counsel for the respondents. UDated: August 20, 2008. UHon’ble B.C. Kandpal, J. This appeal, under Section 100 C.P.C., arises out against the judgment and decree dated 26-11-1988, passed by Civil Judge, Almora, in Civil Appeal No. 18 of 1987, dismissing the appeal and confirming the judgment and decree dated 16-9-1987, passed by the Munsif Ranikhet, in O.S. No. 26 of 1984, whereby the suit of the plaintiff was dismissed. 2- Brief facts of the case, giving rise to this appeal, are that plaintiff Abdul Qaiyyum @ Mohammad Qaiyyum (since deceased) filed a partition suit against the defendants, in the court of Munsif Ranikhet, seeking 1/3Prd P share in House Nos. 237, 237-A, 237-B, 238, 239, 239-A, 240 and 240-B, measuring 2198 Sqr. Feet within the Cantonment Area of Ranikhet, District Almora. The said land is entered in the General Register of Cantonment Board, Ranikhet as Survey No. 99/128. According to the plaint case, plaintiff Abdul Qaiyyum @ Mohammad Qaiyyum (since deceased), Smt. Safia Begam, Smt. Masroor Khatun (defendants 1 and 5) and Mohd. Yusuf @ Batu Shekh, (father of defendants 2,3 2 and 4), were recorded as Occupancy Right Holders over the said land the houses. 3- In the partition suit, the pedigree of the parties has been given according to which, Mohd. Ibrahim had four sons, Mohd. Yakub, Mohd. Aiyyub, Mohd. Yusuf alias Batu Shekh, and Mohd. Qaiyyum @ Abdul Qaiyyum. Mohd. Yusuf @ Batu Shekh has three sons Mohd. Yunus, Mohd, Idris and Mohd. Ismail (defendants 2, 3 and 4, respectively). 4- The original owner of the property in dispute, transferred the house No. 236 by gift deed in favour of Mohd. Yakub and gave possession to him. After transferring the said house to Mohd. Yakub, Mohd. Ibrahim separated him from his family, so he had no any interest in the property, which has been sought to be partitioned. After the formation of Pakistan, the above Mohd. Yakub chose to go to Pakistan, hence the house No. 236, 236-A were declared evacuee property, which was, later on purchased by the defendant/respondent No.5, Smt. Masroor Khatun. The defendant/respondent No.5 has also no interest in the property sought to be partitioned. It is also the case of the plaintiff that besides House Nos. 236 and 236-A, in other property the other three sons Mohd. Aiyyub, Mohd. Yusuf and Mohd. Qaiyyum had got 1/3Prd P share each but Mohd. Aiyyub was extravagant and his share in the property was sold in the execution of decree, which was obtained by one Lakshmi Narayan, and later on the said property was purchased by defendant/respondent No.1, Safia Begam (now deceased), therefore, Mohd. Aiyyub and his heirs also have no right over the property desired to be partitioned. The plaintiff’s further case is that he was residing in the house No. 237-B and was occupying only 3 one room of the ground floor of the house which falls short of his share. The plaintiff therefore, sought 1/3Prd P share in the aforesaid property and sent registered notice to the defendant/respondents on 6.8.1984 for the partition of the property but they did not respond. Although, the defendant/respondent Smt. Safia Begam sent a reply with false allegations that the aforesaid Mohd. Ibrahim had transferred the houses by oral hiba to Smt. Mukto and Mohd. Aiyyub. The plaint allegation further is that the respondent No.1, Safia Begam is occupying the house forcibly without any right and she has been receiving the rent from the tenant of the house. Since the plaintiff and the defendant/respondents are joint owner of the disputed property and the portion of the property occupied by the plaintiff/appellant falls short of his share, so he brought the suit for partition. 5- The defendant/respondent No.1, Smt. Safia Begam, contested the suit by filing written statement. She alleged that Mohd. Ibrahim, in his life time, transferred the ownership of the house Nos. 237, 237-A, 237-B, by oral hiba in favour of his daughter-in-law Smt. Mukto wife of late Mohd. Yakub. She further alleged that since Mohd. Ibrahim used to live with Smt. Mukto and her husband and they used to maintain him, therefore Smt. Mukto used to receive the rent of the house No. 237. After the death of Smt. Mukto, her son Mohd. Umar, the husband of defendant/respondent No.1, Smt. Safia used the house No. 237 as go-down and for some time Abdul Baseer S/o Abdul Qaiyyum ( plaintiff) has been occupying the said house forcibly. She further alleged that Mohd. Ibrahim transferred the house Nos. 238, 239, 239-A and 241-A to Mohd. Aiyyub by oral hiba which were purchased by Laxmi Narayan in auction sale and later on the said houses were purchased by her on 4 22.12.1981 from Laxmi Narayan. In this way, she has become the owner of the house Nos. 237, 237-A, 238, 239, 239-A and 241-A. She further alleged that house Nos. 240 and 240-B are the property of Jama Maszid Ranikhet. She further alleged that Mohd. Ibrahim also transferred some houses in favour of Mohd. Yusuf @ Batu Shekh by registered gift deed dated 1-7-1932 and some houses to his daughter Umrul Nisa by gift deed dated 1.7.1932 and the defendant/respondents 2, 3 and 4 are lineal descendants of aforesaid Umrul Nisa and now they have been occupying the said house. The defendant/respondent No.1 further alleged that the plaintiff has been residing in the houses gifted by Mohd. Ibrahim earlier on 1.7.32, hence is not entitled to get 1/3Prd P share in the disputed property. Therefore, the defendant/respondent No.1 has alleged that she has been occupying the house nos. 238, 239, 239-A and 240- A as the matter of right and they belong entirely to her. She has further contended that her mother-in-law Smt. Mukto was the owner of house nos. 237, 237 and 237-B as the same were transferred to her by oral hiba by her father-in-law, Mohd. Ibrahim and after the death of Smt. Mukto, the ownership of these houses vested in her son Mohd. Umar and after his death, she has been occupying the houses in the capacity of its owner. Her further case is that the then Executive Officer of Cantonment Board, Ranikhet demanded the house-tax in respect of house nos. 236, 237 vide his letter dated 15.7.32 and since 2-9- 32 late Smt. Mukto had been paying the house-tax to the Cantonment Board. The mutation of the name of the plaintiff-appellant in the land records of Cantonment Board, does not create any right in his favour in respect of the disputed houses, except house nos. 240, 240-B, which are the property of the Mosque and house nos. 236 and 236-A which belongs to Masroor Khatun. 5 6- The defendants 2 to 4 also contested the suit by filing written statement and admitted the allegations of the plaintiff-appellant. However they alleged that they are not liable to pay cost of the suit. 7- The defendant/respondent No.5 Smt. Masroor Khatun also filed her written statement and admitted the allegations made in the plaint. She also alleged that she is not liable to pay cost of the suit. 8- The defendant Nos. 6 to 10 contested the suit by filing written statement and contended that house nos. 240 and 240-B are the waqf property and the house Nos. 236 and 236-A belongs to Masroor Khatun. Apart from these houses, the House No. 237, 237-A and 237-B were transferred by Mohd. Ibrahim in favour of Smt. Mukto by oral hiba and they are the grand-children of late Smt. Mukto. They alleged that after the death of Smt. Mukto, their father Mohd. Umar became the owner of the house aforesaid and now they are the owner in possession of said houses. They further alleged that Mohd. Umar used to maintain and repair the house. House No. 237 was let out by their grand-mother late Smt. Mukto to one Kashi Ram and he had been occupying the house for 20 years from 1932 to 1952. After that, their father Mohd. Umar let out the house and used to receive the rent. When the house nos. 238 and 239 were purchased from Laxmi Narayan, their father Mohd. Umar let out the house to one Sohan Lal Goyal and he had been receiving rent therefore @ Rs. 25/- per month. The aforesaid Sohan Lal had also executed a rent note in favour of Smt. Safia Begum, the mother of the defendant/respondents 6 to 10 aforesaid. After the death of aforesaid Sohan Lal, his younger brother Ajya Kumar Goyal took the house on rent and executed a 6 rent note on 20-4-85 in favour of Safia Begum. The contention of these defendants in nutshell is that house nos. 237, 237-A, 239, 239-A and 240-A belong entirely to their mother Smt. Safia Begun, the defendant/respondent No.1 and from time to time in the past Smt. Mukto, their grand-mother used to maintain the houses and install the amenities therein. After the death of Smt. Mukto, their father Mohd. Umar and mother Smt. Safia Begun used to maintain the House Nos. 237, 237-A and other houses viz. 239, 239-A and 240-A. They also alleged that the common ancestor Mohd. Ibrahim had many houses. He had given sufficient property to all of his sons and their lineal descendants through oral hiba as well as by registered deeds. The plaintiff also got sufficient property by registered gift deeds from Mohd. Ibrahim. 9- The defendant /respondent No.11 Mohd. Usman also contested the suit and filed his written statement. He has supported the contention of defendant/respondents 6 to 10 and alleged that at present Smt. Safia Begum and her sons and daughters are the sole owners of the houses in suit and they have been occupying the houses from many years. Late Mohd. Ibrahim had transferred sufficient property in favour of the plaintiff/appellant and he is not entitled to any share in the disputed houses. 10- On the pleadings of parties, the learned Munsif framed following issues in the suit:- 1- Whether the houses Nos. 237, 237-A, 237-B, 238, 239, 239-A, 240 and 240-B in survey No. 99/128 Ranikhet are the joint occupancy 7 property of plaintiff and defendants Nos. 1,2,3, and 4, if so, what is the share of the plaintiff?. 2- Whether Hazi Mohd. Ibrahim gave with possession by oral ‘hiba’ the houses No. 237, 237-A, 237-B to late Smt. Mukto from whom husband of defendant No.1 succeeded the property rights as alleged by the defendant No.1? If so, its effect?. 3- Whether the husband of defendant No.1, that is Mohd. Umar is necessary party? If so, its effect?. 4- Whether Hazi Mohd. Ibrahim gave with possession of the houses No. 238, 239, 239-A, 240-A to Mohd. Aiyyub and the said property was sold in civil execution by this court to one Laxmi Narayan from whom again defendant No.1 purchased the same as alleged in the W.S. of defendant No.1?. 5- Whether the houses No. 240 and 240-B belong to Jama Maszid Ranikhet? If so, its effect?. 6- Whether rights of defendant No.1 are not affected by the mutation entries as alleged in the W.S. of defendant No.1?. 7- To what relief, if any, is the plaintiff entitled?. 8- Whether the Wakf Board is the necessary party as alleged in para 11 of additional pleas of W.S. of defendant No.6 to 10? If so, its effect?. 9- Whether the property in suit belong to Union of India and was the Mohd. Ibrahim mere licensee? If so, its effect, on the rights of parties?. 10- Whether the defendants No.6 to 10 have acquired the rights by virtue of adverse possession? If so, its effect?. 11- Whether a sum of Rs. 6,000/- has been spent by the defendant No.1 in the improvement of property in possession in suit? If so, its effect?. 8 12- Whether the plaintiff is not in possession of property in suit and if so is the court fee paid is insufficient on this score?. 13- Whether the plaintiff is not in possession of the property in suit and if so, its effect?. 14- Whether court fee paid is insufficient?. 11- Thereafter parties adduced evidence in support of their case. The learned Munsif after examining the witnesses of parties and hearing the argument of learned counsel for the parties, came to the conclusion that the predecessor of the plaintiff/appellant and defendant/respondents 1 to 4 and 6 to 11, Mohd. Ibrahim had transferred the House Nos. 237, 237-A and 237-B by oral hiba to late Smt. Mukto, the mother-in-law of the defendant/respondent No.1, Safia Begum, the aforesaid predecessor also made oral hiba in favour of Mohd. Aiyyub in respect of house Nos. 238, 239, 239-A and 240-A which were ultimately purchased by Safia Begum and became the owner. It was also held that late Mohd. Ibrahim had transferred some property by registered gift deed in favour of Mohd. Yakub and Mohd. Yusuf and Umrul Nisa in exclusion of other heirs and the House Nos. 240 and 240-B cannot be partitioned as the income out of it is liable to be spent on the mosque. Therefore, the suit of the plaintiff for partition was dismissed. 12- Feeling aggrieved, the plaintiff/appellant preferred civil appeal before the Civil Judge, Almora, which was dismissed by the first appellant court vide impugned judgment and decree dated 26-11-1988. 13- Now the plaintiff has preferred this Second Appeal before this Court. 9 14- The Second Appeal has been admitted on the following substantial questions of law:- 1- Whether the mutation in favour of the plaintiff and defendants in the Cantonment Board records falsifies the version of oral gift/hiba in favour Smt. Mukto the predecessor of the defendant No.1?. 2- Whether the revenue entries are prima facie prove the title and this presumption holds good unless reverted?. 3- Whether in absence of any oral or documentary evidence oral Hiba/Gift can be presumed?. 4- Whether joint/co-owner by depositing the taxes of the property in the Cantonment Board jointly entered in the name of all co-owners can become owner of the entire property?. 15- Heard learned counsel for the parties and perused the record. 16- On the substantial question of law framed at serial No.1, above, the learned counsel for the plaintiff/appellant has submitted that it is the admitted case of the parties that the property in question is an ancestral property and mutation of the said property is there in favour of the plaintiff and the defendants 1,5 and the father of defendants 2 to 4 late Mohd Yusuf in the record of Cantonment Board and in absence of proof of oral hiba/gift in favour of Smt. Mukto, and also in absence evidence of handing over of the possession of the gifted property to Smt. Mukto by the donor Mohd. Ibrahim, it cannot be said that the plaintiff/appellant has no 1/3Prd P share in the said property therefore, the finding 10 of both the courts below is against the evidence on record and is perverse. Learned counsel in support of his contention has cited before me the following rulings:- 1- Mir Muzfaruddin Khan and three others Vs. Syed Arifuddin Khan and others, 1971 (3) SCC, page 810. 2- Gulam Abbas Vs. Hazi Kayyam Ali and others, AIR 1973, SC 554. 3- Mahmood Sahab s. Syed Ismile and others, (1995) 3 SCC 693. 17- The learned counsel for the respondents, on the other hand, has refuted the above submission of the learned counsel for the appellant and submitted that late Mohd. Ibrahim in his life time has distributed his whole property amongst his children by oral hiba/gift and by executing gift deed in writing also and possession of the property was handed over to the donee by the donor, therefore, the plaintiff cannot take the benefit of mutation of the property in his name along with other defendants over the disputed property and the conclusion drawn by both the courts below is perfectly justified and need no interference. 18- At the outset, it is to be mentioned here that the plaintiff in the plaint itself has alleged that his father late Mohd. Ibrahim vide gift deed dated 14-3-1916, has given house Nos. 236 and 236-A to one of his son, Mohd. Yakub and he was separated from his property, therefore, Mohd. Yakub and his successors have no right over the other property of Mohd. Ibrahim. The defendants also conceded the above facts. Therefore, there remains no dispute relating to House Nos. 236 and 236-A. 11 19- The further case of defendant/respondent No.1 is that Hazi Mohd. Ibrahim by oral hiba/gift gave House Nos. 237, 237-A and 237-B to his daughter-in- law, Smt. Mukto and handed over possession to her. Again the case of the defendant/respondent No.1 is that House Nos. 238, 239, 239-A and 240-A were gifted by Hazi Mohd. Ibrahim to his another son Mohd. Aiyyub by oral hiba/gift and possession was also handed over to him. The property of Mohd. Aiyyub was purchased by one Laxmi Narayan in execution proceeding and this property later on was purchased by Safia Begum, the defendant/respondent No.1, from Laxmi Narayan and she became owner in possession of the House Nos. 238, 239-A and 240-A. This sale-deed Ex-3 has been brought on record, whereby Smt. Safia Begam has purchased the houses from Laxmi Narayan. Now it is to be seen as to whether the defendant/respondent No.1 has been able to prove the oral hiba/gift in favour of Mohd. Aiyyub and Smt. Mukto by Hazi Mohd. Ibrahim. 20- In Mohammedan Law though gift by a Mohammedan is not required to be in writing and consequently need not be registered under the Registration Act, but for a gift to be complete, firstly there should be a declaration of the gift by the donor, secondly acceptance of gift, expressed or implied, by or on behalf of the donee, and thirdly there should be delivery of possession of the property, the subject-matter of the gift by the donor to the donee. If the above three conditions are complete, the gift is valid. In the instant case the interesting aspect is that the donor Hazi Mohd. Ibrahim has died in the year 1934 and the witnesses before whom the oral hibas were made, none of them is alive. Therefore, the first and the second condition of the gift cannot be proved by adducing evidence. So far as the 12 third condition, i.e., delivery of possession is concerned, it is specific case of the defendant/respondent No.1 that the gifted property was handed over to the donee and since then the said property is in possession of donee and then their successors. To rebut the aforesaid assertion of the defendant/respondent No.1, plaintiff/appellant Mohd. Qaiyyum could not dare to come to the court and refute the same whereas it has come in evidence that he could very well walk. Mohd. Qaiyyum was a person who could tell the things but non- coming of his in witness box falsifies his allegations made in the plaint. However, his attorney/ son, Baseer Ahmad was produced before the court. At the time of his statement he was 45 years of age and he had no knowledge about the facts of the case. This witness P.W.1, Baseer Ahmad could not tell the number of property donated to his father. He had also no knowledge that Smt. Umrul Nisa was the daughter of Mohd. Ibrahim. In his cross-examination this witness has admitted that he resided in the Court-yard (Goath) of House No. 237 and he had forcibly entered inside House No. 237 and Mohd. Umar had initiated proceeding U/S 107/116 Cr.P.C. and in these proceedings Baseer Ahmad was directed to furnish personal bond and sureties to maintain good behaviour. Copy of judgment and order in the proceedings U/Ss 107/116 Cr.P.C. has been filed on record as paper No. 128-C/1 to 4. 21- So far as the documentary evidence adduced by the parties, is concerned, the most important document is exhibit A-2, the gift deed executed by Hazi Mohd. Ibrahim, in favour of his son, plaintiff Mohd. Qaiyyum and daughter Umrul Nisa. From perusal of the above document it reveals that Mohd. Ibrahim has mentioned therein that ‘till now I have given nothing to 13 you and whatever property is left with me, the same is being given to you.’ In this deed there is no mention of disputed property and the property given through this deed has specifically be described giving numbers. From the above recital in the deed it is quite clear that Mohd. Ibrahim had not given the disputed property to plaintiff Mohd. Qaiyyum and Smt. Umrul Nisa. Besides it, exhibit A-25 dated 25-7-1932 is the letter of Executive Officer, Cant. Board, Ranikhet and recital of this document reveals that House No. 236 and 237 at that time were in possession of Smt. Mukto and she used to pay the tax. Further paper exhibits A-4 to A-15 reveal that the tax of House No. 237 and his appurtenant property was being paid by Mohd. Yakub, Mohd. Umar or Smt. Mukto. Paper exhibits A-16, A-27, A-28 and A-29 are receipts and demand notice. Paper exhibits B-4 and B-7 are receipts of Cant. Board of the disputed houses in the name of Mohd. Umar son of Smt. Mukto. Exhibit A-24 is receipt of rent in which tenant Kashi Ram has accepted that he has paid rent to Smt. Mukto. From the documentary evidence on record this assertion seems more probable that House Nos. 237, 237-A and 237-B were given to Smt. Mukto Devi through oral hiba by Mohd. Ibrarim. 22- The assertion of defendant/respondent No.1 that House Nos. 238, 239, 239-A and 240-A were given to another son Mohd. Aiyyub by Hazi Mohd. Ibrahim, also seems to be true from a plain reading of the narration noted in the gift deed Ext. A-2 in favour of Mohd. Qaiyyum, that earlier nothing was given to Mohd. Qaiyyum and the houses which were being given now, their numbers are mentioned in the aforesaid deed Ext- A-2. The recital in this deed makes it clear that Mohd. Ibrahim had already distributed his other property in which the plaintiff was given nothing. It is the case of 14 parties that Hazi Mohd. Ibrahim had sufficient property and he had distributed his all properties by oral hiba and also by executing hiba in writing. Some of his property was given to Mohd. Yakub, Mohd. Qaiyyum and Smt. Umrul Nisa by written hiba and there was no reason for Mohd. Ibrahim not to offer some of his property to his third son Mohd. Aiyyub and daughter-in- law Smt. Mukto, and the assertion of defendant/respondents is believable that the House Nos. 238, 239, 239-A and 240-A were gifted to Mohd. Aiyyub by oral hiba, the another son of Mohd. Ibrahim. 23- In support of her case, Smt. Safia Begam, the defendant/respondent No.1, has produced D.W.2, Kashi Ram. This witness has supported the version of the defendant/respondent No.1. He has stated that he has seen Mohd. Ibrahim. He has taken on rent two shops, one belonging to Smt. Mukto and the another of Mohd. Yakub. He also stated that he used to give rent to Smt. Mukto and Mohd. Yakub. He has proved the rent receipt Ext. A-24. This witness further deposed that in the east of his rented shop, there existed the shop of Shekh, who was younger brother of Yakub. Hazi Ibrahim had told him that he has already given shop No. 236 to Yakub and the house to Smt. Mukto were given recently. Mohd. Ibrahim also told this witness that shop No. 238, 239 were given to Mohd. Aiyyub by oral hiba. The property belonging to Mohd. Aiyyub was obtained by Laxmi Narayan in execution proceeding. Therefore, from the deposition of this witness D.W.2,