1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.735 OF 2007 WITH CIVIL APPLICATION NO.1037 OF 2007 Najama Shamshuddin Sutar ..Appellant V/s. Mangala Dahyalal Patel & ors ..Respondents Mr.Dilip Bodake, advocate, for appellant Mr.P.J.Pawar, advocate, for respondent No.1 Mr.Amit Sale, advocate, for respondent No.2 CORAM : J.H.BHATIA, J. DATE : 15TH JANUARY, 2008 P.C. . Heard the learned counsel for the parties. It is the contention of the appellant/original plaintiff that she is a wife of one Shamshuddin Sutar. Original defendant No.2 Kadir Mussa Sutar is a cousin of her husband. The suit property bearing Final Plot No.100, Budhawar Peth, karad was purchased by the members of the joint family drescibed in the plaint but it was got executed in the name of defendant No.2 Kadir Musa Sutar alone. According to the plaintiff, on 26th June, 2000, defendant No.2 Kadir Musa Sutar made a 2 gift or oral Hiba of the suit property in favour of plaintiff and he also executed memorandum of the said oral Hiba on the same date. Since then she is owner of the property. However, defendant No.2 Kadir Sutar executed a Sale Deed of the said property in favour of respondent No.1/original defendant No.1 Sou.Mangala Patel on 1st July, 2003. According to the plaintiff, defendant No.1 was trying to interfere in her possession and to make construction on the said property. Therefore, the plaintiff filed a suit for declaration of a title and perpetual injunction. She also filed an application for temporary injunction restraining defendant No.1 from causing interference in possession of the plaintiff and from making any construction. The application was opposed by the defendants. The defendant No.2 denied to have made any gift and to have executed any such document in favour of the plaintiff. After hearing the parties, the trial Court rejected the application. Thereafter, the plaintiff preferred an appeal against that order. 3 2. The learned counsel for the plaintiff has taken me through copies of all the documents which are filed by her. The plaintiff relied upon the documents purporting to be memorandum of the oral gift made in her favour by defendant No.2. She has filed the affidavits of Afzal Salmani & Mahadeo Dupate who were said to be attesting witnesses of the said memorandum. Defendant has also filed an affidavit of Mahadeo Dupate wherein he has deposed that he was not aware about the contents of the affidavit on which the plaintiff had obtained his signature. Admittedly, the gift deed or its memorandum were not registered. Under section 149 & 150 of the Mohammedan Law by Mulla, delivery of possession is essential complete a gift. In the present case, the appellant had never got transferred the suit property in her name in the Municipal record and thus, except the disputed memorandum of the gift, neither there is any material to support claim of the plaintiff nor there is any other material to show that she had actually taken possession of the suit property. 4 3. The defendant No.2 had executed a Sale Deed of the suit property in favour of defendant No.1 on 1st July, 2003 and that Sale Deed is registered. Taking into consideration the material on record, the learned trial Court refused to exercise discretion of granting relief of temporary injunction in favour of the plaintiff. I do not find any reason to take a different view. Therefore, in my considered opinion, there is no substance in the present Appeal From Order. According to the learned counsel for the present appellant, if the construction is made, the suit may become infructuous. I do not find any substance in this contention also because if any development is made pending of the suit, naturally it would be subject to the result of the suit. 4. Therefore, the Appeal stands disposed of. 5. As the Appeal itself is disposed of, the Civil Application does not survive and stands disposed of accordingly. 5 (J.H.BHATIA, J.)