IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.16 of 2011 ====================================================== Asgar Ali (deceased) represented through legal representative ..........Defendant-respondent-appellant Versus Bibi Sakina & Ors ..........Plaintiffs-appellants respondents ====================================================== with Second Appeal No.17 of 2011 ====================================================== Asgar Ali (deceased) represented by the legal representative ..........Plaintiff-respondent-appellant .... .... Appellant/s Versus Bibi Sakina & Ors ............Defendants-appellants-respondents ====================================================== Appearance : (In SA No.16 of 2011) For the Appellant/s : Mr. Md. Helal Ahmad For the Respondent/s : Mr. (In SA No.17 of 2011) For the Appellant/s : Mr. Md. Helal Ahmad For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO ORAL ORDER 14 01-07-2013 1. Both these second appeals are heard under Order 41 Rule 11 of the Code of Civil Procedure because both the second appeal arise out of the common Judgment and Decree passed by the lower appellate Court in two title appeals. 2. At the very outset, it may be mentioned here that in second appeal No.17 of 2011, a substitution application being I.A. No.3919 of 2013 has been filed for substitution of the legal representatives of the deceased sole appellant. The learned counsel for the respondent has got no objection. Accordingly, the substitution application is allowed and the legal representatives of Patna High Court SA No.16 of 2011 (14) dt.01-07-2013 2 / 9 2 the deceased sole appellant are substituted in place of the deceased appellant. All the legal representatives have already filed Vakalatama. 3. In both the second appeals, defects have been pointed out by the stamp report. From perusal of the defect, it appears that these defect are very minor. Therefore, the defects of both the second appeals are hereby ignored. 4. Heard the learned counsel Mr. Helal Ahmad on behalf of the appellant in both the second appeals and Ms. Sangeeta Sharma on behalf of the respondents in both the second appeals under Order 41 Rule 11 C.P.C. 5. Title suit No.162 of 1994 was filed by the original appellant Asgar Ali for injunction praying for restraining the defendant from dispossessing the plaintiff from the land measuring 6 dhur 2¼ dhurki alleging that originally 1 katha 4 dhur 9 dhurki land was purchased by father of the appellant in the name of mother, namely, Bibi Kadiran. On the death of father, the mother Bibi Kadiran gifted the oral land measuring 1 katha 4 dhur, 9 dhurki to her 4 sons. Thereafter, there was partition between 4 brothers and each of the brothers came in equal share measuring 6 dhur 2¼ dhurki. Thereafter, they constructed their respective houses on the allotted portion and are residing therein. The defendants obtained separate deed of gift from Bibi Kadiran fraudulently. However, the possession was never delivered by Kadiran, therefore, the gift deed in favour of the defendant is not complete. Patna High Court SA No.16 of 2011 (14) dt.01-07-2013 3 / 9 3 6. The defendant respondent filed contesting written statement alleging that in fact there was no oral gift deed by Bibi Kadiran to any of the son. The mother Bibi Kadiran gifted the suit properties to his 3 sons, the defendants by registered gift deed dated 06.09.1994 because the plaintiff Asgar Ali was torturing the mother, therefore, mother did not give any property. According to them, she was the owner of the property. Subsequently, the defendant respondent filed title suit No.146 of 1996 for eviction of Asgar Ali from Schedule II land property on the ground that the property has been gifted by their mother, Bibi Kadiran and the said Asgar is residing there with their permission. The defendant (Asgar Ali) in T.S. No.146 of 1996 was debarred from filing any written statement. 7. Both the aforesaid suits were tried together and by common Judgment, the trial Court decreed the suit filed by Asgar Ali and dismissed the suit filed by the defendant. The defendants filed two appeals. One against the Judgment and Decree passed in title suit filed by Asgar Ali and the another appeal against the Judgment and Decree passed in title suit filed by them. Both the title appeals were heard by the lower appellate Court and common Judgment was passed. The lower appellate Court allowed both the appeals and dismissed the suit filed by Asgar Ali and decreed the suit filed by the defendants. Against the said Judgment and Decree, Asgar Ali, original appellant, has filed the second appeal No.16 of 2011 against the Judgment and Decree passed in title suit No.146 of 1996, i.e., eviction suit filed by the brothers of Asgar Ali. Patna High Court SA No.16 of 2011 (14) dt.01-07-2013 4 / 9 4 8. The second appeal No.17 of 2011 is filed against the Judgment and Decree passed in title suit No.162 of 1994, i.e., the suit filed by Asgar Ali. Since the case of the defendant of title suit No.162 of 1994, i.e., the respondents in this second appeals is the same in their suit, i.e., title suit No.146 of 1996 and the controversy between the parties is same, both these appeals are heard together. 9. The trial Court recorded the finding that the appellant, Asgar Ali was in possession of the property, therefore, the gift deed in favour of the defendant is not complete because the possession was not delivered and, therefore, the trial Court relied upon the case of Asgar Ali regarding oral gift deed by Bibi Kadiran to his 4 sons and accordingly, decreed the suit filed for Asgar Ali and dismissed the suit filed by his 3 brothers. 10. On appeal, the lower appellate Court reversed the Judgment of the trial Court and after appreciation of the evidence recorded a finding that in fact there was no oral gift made by Bibi Kadiran to his 4 sons and that the possession of Asgar Ali in the suit property is permissive possession and accordingly dismissed the suit filed by Asgar and decreed the suit filed by his 3 brothers. 11. The learned counsel, Mr. Helal Ahmad appearing on behalf of the appellant submitted that in fact the property was purchased by father of the appellant in the name of Bibi Kadiran. Bibi Kadiran had no independent source of income and, therefore, she could not have purchased the property in her own name. The learned counsel further submitted that on the basis of oral gift Patna High Court SA No.16 of 2011 (14) dt.01-07-2013 5 / 9 5 deed and subsequent partition, Asgar Ali was residing in the suit property after constructing house, therefore, subsequent gift deed made by Bibi Kadiran though registered, it will not complete because the possession of the suit property was never delivered by Bibi Kadiaran in favour of the 3 brothers. Considering this aspect of the matter, the trial Court accepted the case of Asgar Ali and lower appellate Court did not rely the case of the Asgar Ali on mere finding that the said Asgar Ali is in the permissive possession. The learned counsel further submitted that although Bibi Kadiran has not filed any written statement but the lower appellate Court committed error or record at paragraph 9 and held that Bibi Kadiran has filed written statement denying oral gift in favor of 4 sons. On these grounds, the learned counsel submitted that the impugned Judgment and Decree of the lower appellate court are vitiated. 12. On the other hand, the learned counsel appearing on behalf of the respondents submitted that none of the question raised by the learned counsel for the appellant are substantial questions of law. The lower appellate Court after considering the evidences and materials held that the appellant is in permissive possession of the suit property. Moreover, the gift deeds of the year 1994 executed by Bibi Kadiran in favor of the 3 sons are registered gift deeds but still today the appellants have not challenged the said gift deed. So far possession is concerned, it is admitted that Asgar Ali was in possession with the permission of mother and after obtaining gift deed, the appellant assured that he will vacate the house but when he did not vacate, the respondent Patna High Court SA No.16 of 2011 (14) dt.01-07-2013 6 / 9 6 had no option but to file the suit. 13. So far the submission of the learned counsel for the appellant with respect to the case that in fact the property was purchased by the father in the name of mother Bibi Kadiran is concerned, it may be mentioned here that it is admitted fact that the property stands in the name of Bibi Kadiran. It is also admitted fact that in the year 1966, the father of the parties namely, Sahebjan Miyan gave 15 dhurki land by registered deed in lieu of dower debt. The submission is that the property has been purchased by father, therefore, appears to be not correct. Moreover, so far the defence that the mother was Benamidar is concerned, it is barred under Section 4 of the Benami Transaction of Prohibition Act, 1988 because the suit has been filed in the year 1994 and 1996. Moreover, the appellant is not claiming title through father but he is claiming title on the bass of oral gift by mother. 14. So far the question raised by the learned counsel for the appellant regarding possession is concerned, it may be mentioned here that after considering the materials and evidences, the lower appellate Court held that the appellant Asgar Ali was in permissive possession of the land. It is admitted fact that on the date of institution of the suit, mother Kadiran was alive. Therefore, on that date unless it is proved that Bibi Kadiran had transferred her interest in any manner under any law in favour of Asgar Ali, he can not claim title. The case is that he was residing in the suit property. Therefore, unless Asgar Ali proved his case that in fact Patna High Court SA No.16 of 2011 (14) dt.01-07-2013 7 / 9 7 there was oral gift deed by Bibi Kadiran in favour of 4 sons and the subsequent partition between 4 sons, he cannot have any title on the suit property. The lower appellate Court has recorded clear finding that the appellant Asgar Ali has failed to prove the oral gift made by Bibi Kadiran and the subsequent partition. Now, therefore, this finding being the finding of fact, the same cannot be interfered with in second appellate jurisdiction. So far the actual physical possession over the property is concerned, it is settled principles of law that if the doner recited in the gift deed that he has delivered possession to the donee treating them as full owner and thereby divested himself from the ownership, the gift deed will be valid. Here in the same house, all the 4 brothers were residing. Therefore, there cannot be any presumption that no delivery of possession was given by the donee, particularly when the lower appellate Court has recorded the finding that the appellant, Asgar Ali, is in permissive possession and so far this finding of possession of the appellant is concerned is also a finding of fact. 15. The learned counsel raised another question that the appellant Asgar Ali had filed title suit No.162 of 1994 regarding injunction over an area measuring 6 dhur 2¼ dhurki whereas the respondents filed title suit No.146 of 1996 for eviction of the defendant from 0.5 dhur. So far this submission is concerned, it may be mentioned here that appellant filed for injunction and no prayer was made for declaration of title and/ or confirmation of possession. Moreover, so far the question that whether the suit land measures 6 dhur 2 ¼ dhurki or measures 0.5 dhur is a pure question of fact. From perusal of the Judgments of both the Courts Patna High Court SA No.16 of 2011 (14) dt.01-07-2013 8 / 9 8 below, I find that this dispute was never raised in the Court below and the Courts below have not applied their mind. The question being the question of fact, therefore, the appellant cannot be permitted to raise this question of fact at this stage in second appellate jurisdiction. 16. From perusal of the lower appellate Court Judgment, it appears that the lower appellate Court found that the trial Court Judgment is cryptic and unreasoned. I perused the trial Court Judgment. From perusal of the trial Court Judgment, it appears that the Judgment is cryptic Judgment. No evidence of the parties have been discussed. While deciding issue No.4, i.e., the main issue in one paragraph, i.e., in half page, the trial Court has resolved the controversies between the parties. So far appellate Court is concerned, it appears that the lower appellate Court has considered all aspects of the matter which are being raised before this Court and relying on the decision of this Court reported in A.I.R. 1974 Patna 54 held that the fact that subsequently one of the heirs of the doner who is disputing validity of the gift deed is found in possession of the gifted lands cannot detract from the completion of the gift. It may be mentioned here that here the appellants are not challenging the registered gift deeds. Their only case is that no possession was delivered. After considering the materials, the lower appellate Court recorded the finding that the possession is permissive, therefore, it cannot be said that the registered gift deeds became invalid. 17. So far submission of the learned counsel that written Patna High Court SA No.16 of 2011 (14) dt.01-07-2013 9 / 9 9 statement was never filed by Bibi Kadiran but the lower appellate Court has wrongly held that she had filed written statement is concerned, it may be mentioned here that on the basis of this wrong statement, the lower appellate Court has not recorded the finding that the oral gift is invalid. Therefore, in my opinion, because of this error of record, it cannot be said that the impugned Judgment of the lower appellate Court is vitiated. 18. The learned counsel for the appellant also submitted that the trial Court considered the admission of the appellant in the evidence that the appellant is residing in his share is concerned, because of this statement made by the witness only, the registered deed of gift cannot be said to be invalid, particularly when still today the same has not been challenged by the appellant and moreover, the basis for claim of the appellant is oral gift and subsequent partition but according to the lower appellate Court, the same has been disbelieved. 19. In view of the discussion, I find that none of the questions raised by learned counsel for the appellant is substantial question of law involved in these second appeals. Therefore, both these second appeals are dismissed at the admission stage itself. Sanjeev/- (Mungeshwar Sahoo, J)