1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.160 OF 1990 Kasimsaheb s/o Mahboob Saheb died on 6.7.2007, through his legal heir:- Abdul Alim s/o Mohammad Kasim age 40 years, occup.agriculture, r/of near Matan Market, Ahmedpur, Taluka Ahmedpur, District Latur. Appellant versus 1. Mohammad Mozuddin s/o Mohammed Imamesahbe, age 43 years, occup. Contractor, r/o Ashti, Taluka Ashti, Dist.Beed. 2. Mohammadi Begum w/o Abdul Hadi, age 64 years, occup. household r/o Akola, Maharashtra. 3. Ahmedi Begum w/o Abdul Karim age 62 years, occup.household, r/of Asaf Nagar, Hyderabad, (Andhra Pradesh). 2 4. Fatema Begum w/o Abdul Rahman (died). Abdul Hanan s/o Abdul Rahman Laskare, age 60 years, occup. Nil. r/of Oppo.Nurkhan Mazeed, Satbhai Mohalla, Udgir, (amendment carried District Latur. out as per order dated 24/2/2006 on 28/2/2006.) 5. Abdul Rahman s/o Mohd. Shujat Khan, age 60 years, occupation : Pensioner, r/o Ahmedpur (died) 6. Abdul Rauf s/o Kashimsaheb age 55 years, occup.contractor, Respondents/ r/o Ahmedpur, Taluka Ahmedpur, ori.pltffs. District Latur. and defts.) ------ Shri S.A.G. Qureshi, Advocate, holding for Shri V.G. Sakolkar, Advocate, for the appellant. Shri D.R.Bhadekar,Advocate, for Respondent No.1. Smt. A.N. Ansari, Advocate, for Respondent Nos.2 and 3. ------ 3 Coram: P.R. Borkar J. Date : Sept. 2, 2009 ORAL JUDGMENT 01. This second appeal is preferred by original defendant No. 3 being aggrieved by the judgment and decree passed by learned Civil Judge, Junior Division, Ahmedpur, in Regular Civil Suit No. 118 of 1960 decided on 18.2.1984 as confirmed by the learned II Additional District Judge, Latur in Regular Civil Appeal No. 58 of 1984 decided on 29/09/1989. The trial judge, by his judgment and decree, declared the plaintiffs, who are present respondent Nos. 1 to 3, owners of house No.946 situated at Ahmadpur, District Latur and the registered sale deed dated 5.11.1951 in favour of present appellant was set aside holding the same to be void and ineffective and the defendants were directed to hand over possession of the suit house to plaintiff-respondent No.1. 02. Some of the facts giving rise to this second appeal and admitted at this stage are 4 that Sardarbee was the original owner of the suit house. Respondent No.4-Defendant No.1 Fatima Begum was her daughter. Ijjatunisa was the daughter-in-law of Sardarbee. It is also admitted position that Respondent No.4 Fatima Begum had executed sale deed in favour of appellant-original defendant no.3 in respect of suit house. Respondent No.5 Abdul Rahman- original defendant no. 2 was husband of Fatima Begum and Respondent No. 6 Abdul Rauf-original defendant No.4 was son of appellant Kasim. 03. It is the case of plaintiffs- respondent Nos. 1 to 3 that on 5.6.1946 (i.e. 1st Amirdad 1355 Fasli), a gift deed was executed by Sardarbee in favour of Ijjatunisa. It was registered. It is the say of Respondent Nos. 1 to 3 that they were put in possession of the suit house at that time and they along with Ijjatunisa enjoyed suit house for sometime, but thereafter plaintiffs- respondent Nos. 1 to 3 and their mother Ijjatunisa had to shift to Ashti, District Beed and so they let out suit house on rent. Finding this as an opportunity, Respondent Nos. 4 and 5 executed sale deed in favour of the appellant in November 1951 and the plaintiffs were dispossessed and, therefore, 5 they filed suit for declaration of title, declaration that the sale deed executed on Respondent No.4 in favour of appellant was null and void and for possession. 04. Defendants-appellant No.1 and Respondent Nos. 4 and 5 filed their written statement. It is contended by them that the suit is false. Sardarbee had orally gifted suit house to Respondent No.4 Fatima in 1343-44 Fasli which is around 1934-35 A.D. and at that time by oral gift deed Respondent No. 4 Fatima was put in possession of the property and as such subsequent registered gift deed in favour of Ijjatunisa is null and void. It is further denied that registered gift deed was executed in favour of Ijjatunisa by deceased Sardarbee on 6.7.1946. Respondent No. 4 was the owner of the property. It is further submitted that Respondent No.4 had initially mortgaged the suit house to the appellant and subsequently sold the same to him by registered sale deed. In the circumstances, defendants prayed that the suit be dismissed. 05. The trial court, so also the first appellate court believed the version of the 6 plaintiffs-respondent Nos. 1 to 3 and decree was passed and appeal was dismissed and, therefore, this second appeal. 06. This second appeal is admitted on 29.9.1999 on substantial questions of law discussed in ground Nos. II, V, IX, X, XV and VII of the appeal memo which are as follows; (II) That, the Lower Court, in spite of specific directions by this Hon'ble Court in it's judgment in Reg.C.A. No.13/73 dated 5th of January 1975, has not given the finding on each issue framed by this Hon'ble Court and only given the finding to issue No.2 as does not arise. In fact, the Lower Court ought to have given the finding either in affirmative or in negative. The Lower Court has failed to do so, which caused great injustice to the present Appellant on this Court itself the judgment of the Lower Court is bad-in- law. (V) That, the complete in sanction by the deceased Ijjatunisa Begum till her time regarding suit house itself shows that no gift deed was executed by Sardarbee in favour of Ijjatunnisa Begum. Because after the death of the husband of the said Sardarbee, the same of the Fatemabi is duly entered in the Municipal record and the said mutation was not at all challenged whether by deceased 7 Ijjatunnisa Begum or by the present plaintiff. This important aspect of the case has not been considered by the Lower Court and thus came to the wrong conclusion on issue No.20. The Lower Court ought to have given the finding in the affirmative. (IX) That both the courts below ought to have seen the plaintiffs have never proved the title of their deceased mother Ijjatunnisa over the suit house in the relevant time. The plaintiffs have produced the rent note executed by Pasioddin who was put in the suit house by deceased Ijjatunnisa as her tenant. Though it was stated a rent note, it is not a rent note but it is a lease deed, and it ought to have signed by lesser and lease (lessor and lessee) (i.e. Ijjatunnisa and Pasioddin but the said has not been signed by both the parties. In the said document no period has been mentioned, it is indefinite. Fasioddin the alleged tenant is real brother of deceased Ijjatunnisa and, therefore, they have prepared such document to protect the alleged claim of his sister and her sons. The Learned Trial Judge wrongly considered the rent note as a Co-lateral by accepting as a evidence. (X) That, the learned Trial Judge Judge has given unnecessary importance to the rent not submitted by the plaintiff, the said note is bogus and false one and the legality of the said rent has been challenged by the defendants. So, it can't be considered as the legal evidence. 8 (XV)That, both the courts below ought to have seen that the tax receipts at Exhibit 100 produced by the plaintiff are without seal and same are prepared after thought. (XVII) That, both the Courts below should have seen that, original landlady Sardarbee has given the suit house in gift to her daughter Fatemabee in 1343 Fasli with possession and subsequently Fasli executing it has been executed. As there was actual and unequivocal utterance by her mother in her favour about the gift of the suit house. Sardarbee was living with the Fatemabee in the suit house till 1948 and she maintained Sardarbee in her life time." 07. The basic question that arises before this court is whether the trial court and the first appellate court committed any error in disbelieving the evidence regarding oral gift. Shri Qureshi, learned Advocate for the appellant, has taken me through the evidence and has referred to the evidence of DW-5 Mohammad Gayasuddin. According to learned counsel, evidence of DW-5 was not properly appreciated. DW-5 Mohd. Gayasuddin stated that he was a neighbour of Sardarbee. She was in possession of the suit property. About 35 to 40 years prior to his statement recorded on 9 1.12.1972, Sardarbee had gifted the suit house orally to Fatima Begum. At that time Sardarbee had sent a boy to call him and according he went at the house of defendant No.1. At that time neighbours Gafoor Saheb and his brother Vaheb Saheb were sitting in the house of Sardarbi. Witness further stated that Sardarbi told them that she was orally gifting the house to her daughter Fatima Begum and they should be witnesses to the same. Defendant No.1 Fatima Begum was also present there. At that time, house was given in possession of Fatima Begum. Fatima was aged 18 to 19 years at that time. Since gift, she is in possession of the property. Witness has deposed that about 16-17 years prior to his deposition, Fatima Begum sold the said house to appellant-defendant No. 3 Kasim Saheb and he has been in possession of the suit house. 08. In cross examination, this witness admitted that he was related to family of Sardarbee and was frequently visiting her house. According to him, at the time of gift, male persons were sitting in courtyard and the two ladies Sardarbi and Fatimabi came out of the room towards them and Sardarbi told them about the oral gift she wanted to make. 10 Witness was not aware as to whether name of Fatima Begum was entered in the record of the suit house. According to him, Fatima did not induct any tenant in the suit house. He was not in a position to tell date, month or year of the gift. Advocate Shri Qureshi for the appellant vehemently submitted that there was absolutely no reason for the courts below to disbelieve evidence DW-5 Mohd.Gayasuddin and his evidence being in natural course of human conduct, ought to have been accepted. 09. Ordinarily, such evidence could have been accepted, but learned counsel for Respondent Nos. 1 to 3 brought to my notice certain circumstances. It is observed by learned first appellate court that Respondent No.4 Fatima-defendant No.1, was examined at Exhibit 72 in the year 1962 and during her evidence she did not say anything about oral gift and after the matter was remanded she was not re-examined. The best evidence in the form of deposition of Fatimabi herself is not coming forth. Ordinarily, if there was oral gift, there was no reason for Fatima in whose favour oral gift was made, not to say about 11 the same. It is not the case that somehow she forgot to mention about oral gift. At least after remand, she should have been examianed. Second circumstance is that, in the gift which was registered and executed by Sardarbee in favour of Fatima on 6.6.1946, there was not a word about previous oral gift. In fact, if there was really previous oral gift and subsequently registered gift was executed in favour of Ijjatunnisa Begum, there would have been mention about oral gift in the said registered gift deed. Ordinarily, it would have been explained in the registered gift deed itself that already oral gift in favour of Fatima Begum had been executed, but since a registered gift deed came to be executed in favour of Ijjatunnisa, so the registered deed was being executed. So, silence on the part of Fatima Begum and omission to mention in the registered gift deed about the oral gift, raises a question whether the theory of oral gift propounded by Fatima Begum is afterthought. 10. It is now admitted position that even after the alleged oral gift in favour of Fatima Begum and registered gift deed in favour of Ijjatunnisa Begum, the property 12 remained in the name of Ismail Saheb-the husband of Sardarbee and at Exhibit 100, we find one tax receipt dated 25.11.55 (Fasli) in the name of Ismail Saheb (deceased) through Ijjatunnisa Begum w/o Mohammad Imam Saheb Vakil. So, if we consider this document, it appears that after the death of Ismail Saheb- father of Respondent No.4, Ijjatunnisa was in possession of and looking after the suit house. 11. It has also come in the evidence that Ijjatunnisa had paid house taxes to the police patil and he had credited the same in the Tahsil office with document at Exh.24/3. Shankarrao Joshi (PW-9) is examined at Exh.98 to prove that document. So, it does not appear that after the alleged oral gift any steps were taken by Fatima Begum which were natural for donee such as to get her name entered in the public record relating to the property gifted. Viewed from this angle, in my opinion, the trial court and the first appellate court cannot be said to have committed any error in appreciating the evidence on record. It, therefore, cannot be said that the findings of fact recorded by the courts below are perverse. 13 12. So far as limitation is concerned, the above said receipt clearly indicates that at least till 1355 Fasli (1946), Ijjatunnisa Begum was in possession of the suit property. The Plaintiffs have explained that they were minor. Ijjatunnisa Begum expired on 4.4.1959. Present suit is filed on 12.11.1960 which was registered on 14.11.1960. The sale deed in favour of the appellant is executed on 5.11.1959. There is nothing on record to show that prior to filing of the suit, appellant had perfected his title by adverse possession. 13. After going through the judgments of the trial court and that of the first appellate court, it does not appear that any issue/point that is framed or involved is not considered. 14. Viewed from all above angles, in my opinion, this second appeal deserves to be and and is accordingly, dismissed. pnd/SA160.90 (P.R.BORKAR, J.)