IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30.9.2009 CORAM THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN A.S.NO. 1332 OF 1995 & C.M.P.No.18034 of 1995 1. Zamila Bivy 2. Kamarousamane 3. Mougamada Bougary 4. Siradjunissa 5. Megourounnissa 6. Rezina Begum 7. Majharnisa 8. Javoharnisa ..Appellants/Plaintiffs -Vs.- 1. The Authorised Officer Land Reforms (Deputy Collector, Revenue) Taluk Office Building Karaikal. 2. D.A.Shamsudeen ..Respondents /Defendants Appeal against the judgment and decree dated 16.3.1994 in O.S.No.14 of 1990 on the file of Additional District Judge, Pondicherry at Karaikal. For Appellant : Mr.A.J.Abdul Razak For Respondents : Mr.A.S.Bharathy for Government Pleader (Pondicherry) for R1 ------- J U D G M E N T The unsuccessful plaintiffs in O.S.No.14 of 1990 on the file of the learned Additional District Judge, Pondicherry at Karaikal are https://hcservices.ecourts.gov.in/hcservices/ the appellants in the first appeal. 2. The parties to this appeal are referred to as "plaintiffs" and "defendants" for the sake of convenience. BACKGROUND FACTS:- 3. The suit in O.S.No.14 of 1990 was originally filed by one Abdul Rahim praying for a judgment and decree to set aside the order of the first defendant dated 23.3.1990 made under the provisions of the Pondicherry Land Reforms (Fixation of Ceiling on Land Act), 1973 (hereinafter referred to as "the Act") by holding that the plaintiffs are the owners of the suit property by virtue of the gift made in the year 1955. 4. In the plaint in O.S.No.14 of 1990, the plaintiffs inter alia contended thus:- (i) The original plaintiff Abdul Rahim was given the suit property by way of an oral gift in the year 1955. The property originally was in the possession and enjoyment of Abdul Rahman, father of the second defendant and by way of Hiba made in the year 1955, the property was given to the deceased plaintiff. The said Abdul Rahman died in the year 1978. Ever since the gift, the deceased plaintiff Abdul Rahim has been in possession and enjoyment of the property. (ii) Subsequent to the death of the donor, the first respondent initiated proceedings for acquisition invoking the provisions of the Pondicherry Land Reforms (Fixation of Ceiling on land ) Act 1973. In the said proceedings, the second defendant alone was made a party, being the legal representative of the deceased land owner. Therefore the deceased Abdul Rahim took steps to implead him in the said proceedings. Accordingly he was permitted to take part in the proceedings. Ultimately the first respondent as per proceedings dated 23.3.1990 determined the surplus land. The said order was challenged by the plaintiffs by way of statutory suit under Section 10(3) of the Act. 5. The suit was contested by the defendants. The first defendant in his written statement contended thus:- The deceased plaintiff was not the real owner of the suit property and he was never in possession of the property. There was no such gift in favour of the deceased plaintiff in the year 1955. The second defendant alone is the legal heir of late Abdul Rahman and as such the plaintiffs have no right, title, interest or possession in respect of the suit property. The proceeding was initiated strictly as per the provisions of the Pondicherry Land Reforms Act and an order was passed on merits declaring the surplus land. https://hcservices.ecourts.gov.in/hcservices/ 6. The second defendant has adopted the written statement filed by the first defendant. ISSUES:- 7. The following issues were framed by the trial Court. (a) Whether the suit is bad for non-joinder of parties? (b) Whether the suit properties have been orally gifted to the plaintiff in 1955 and he has taken possession of the same and have to be excluded from the holding of Abdul Rahman? (c)To what relief the plaintiff is entitled? 8. Before the trial Court, the power agent of the plaintiffs were examined as P.W.1. They have also examined P.W.2 to substantiate their plea that the property has been in the possession and enjoyment of Abdul Rahim on the basis of the Hiba. Exs.A.1 to A.4 were also marked on their side. D.W.1 was examined on the side of the first defendant and Ex.B.1 was marked. JUDGMENT OF THE TRIAL JUDGE:- 9. The learned trial Judge found that there was no evidence, much less acceptable evidence to show that the deceased plaintiff was in possession and enjoyment of the property. The learned trial Judge was also of the view that there was no document to substantiate the contention that there was a gift in favour of deceased Abdul Rahim in the year 1955. Accordingly the learned trial Judge arrived at a factual finding that the property was never in possession and enjoyment of the deceased plaintiff and the suit was dismissed. It is the said judgment and decree which is impugned in the first appeal. SUBMISSIONS:- 10. The learned counsel for the appellants would submit that as per Mohammedan Law it was possible for a Mohammedan to convey the property by way of gift, which is known as "Hiba" and there is no necessity to execute a formal document. Hiba is complete by delivery of possession of the property and as such the learned trial Judge was not justified in his conclusion that there was no document to substantiate the contention that there was "Hiba" in favour of deceased Abdul Rahim. 11. The learned Government Pleader supported the judgment of the trial Court and contended that the plaintiffs have miserably failed to prove their ownership and possession of suit property. https://hcservices.ecourts.gov.in/hcservices/ POINT FOR CONSIDERATION:- 12. The following point arises for consideration in the first appeal:- Whether the plaintiffs have proved the oral gift in favour of the deceased plaintiff so as to give a cause of action to challenge the proceedings initiated by the first respondent invoking the provisions of the Pondicherry Land Reforms (Fixation of Ceiling on Land Act), 1973? DISCUSSION:- 13. The suit was originally instituted by one Abdul Rahim. During the pendency of the suit he died and his legal representatives were impleaded as plaintiffs 1 to 8. It was the contention of the deceased plaintiff that there was a "Hiba" in his favour in the year 1955 whereby and whereunder the suit property was gifted to him by late Abdul Rahman, father of the second defendant. There was delivery of possession of the property and he has been cultivating the property ever since the gift. However very strangely the revenue records stood in the name of the alleged donor. There was no mutation at all till the initiation of the proceedings by the first defendant. 14. Though the legal representatives were brought on record, they have not appeared before the Court to give evidence. P.W.1 was examined to show that the deceased plaintiff was cultivating the property. Except the oral evidence of P.Ws.1 and 2 there was no acceptable materials before the Court to substantiate the contention of the plaintiffs that there was a gift in favour of deceased Abdul Rahim and there was also delivery of possession of the property and he has been cultivating the property on the strength of Hiba. 15. Except the interested testimony of the witnesses there was nothing on record to justify the contention that the property has been in the possession of the deceased plaintiff since 1955. The revenue records continued to be maintained in the name of the original owner. Therefore the plaintiffs miserably failed to prove the gift as well as the factum of delivery of possession of the property to the deceased plaintiff. 16. The learned trial Judge has considered the entire issue on the basis of the evidence and arrived at a conclusion that the property was never in the possession and enjoyment of the plaintiffs. There is nothing on record to take a different view in the matter. https://hcservices.ecourts.gov.in/hcservices/ 17. According to the plaintiffs the gift was in the year 1955 and simultaneously there was delivery of possession of the property. It was their further case that the property was cultivated for all these years by the deceased plaintiff. However in the revenue records the person in possession of the suit property was none other than its original owner. The name of the deceased plaintiff was not seen in any of the revenue records. Even the legal heir of the deceased land owner has not supported the case of the plaintiffs. In the absence of evidence to prove the gift coupled with delivery of possession, it cannot be concluded that there was a valid gift in favour of the deceased plaintiff which is a pre-condition for excluding the land from the surplus proceedings. Therefore necessarily it has to be concluded that there was no gift in favour of the deceased plaintiff in the year, 1955. Accordingly the point is decided against the plaintiffs. DISPOSAL:- 18. In the result, the judgment and decree dated 16.3.1994 in O.S.No.14 of 1990 is confirmed and the First Appeal is dismissed. Consequently, the connected CMP is closed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar Tr/ To 1. The Additional District Court, Pondicherry at Karaikal. 2. The Section Officer VR Section High Court Madras-104. RL(CO) km/23.10. A.S.No. 1332 of 1995 https://hcservices.ecourts.gov.in/hcservices/