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2017 DIGILAW 1294 (GAU)

Istaque Ali v. Nausad Ali (Md. )

2017-09-15

AJIT BORTHAKUR

body2017
JUDGMENT : Ajit Borthakur, J. 1. This long pending First Appeal of 2011 is preferred under Section 96 of the C.P. Code against the judgment and order, dated 29.08.2009, passed in Title Suit No. 01/2004 by the Court of learned Civil Judge, Goalpara. The defendant/appellants' case, precisely, is that the plaintiff/respondent instituted T.S. No. 01/2004, on 20.01.2004 for declaration of right, title, interest and confirmation of possession over a plot of land, measuring about 2 bighas, 3 kathas and 9 lechas (hereinafter referred as 'suit land'). 2. Brief facts of the case of the plaintiff/respondent are that Late Akram Ali, the father of both the plaintiff/respondent and the defendant/appellants was the absolute owner of the suit land. During his lifetime, said Akram Ali had gifted the suit land to the plaintiff/respondent, vide registered Deed of Gift, being No. 2368, dated 31.05.1977. After execution of the said Deed of Gift, the plaintiff/respondent accepted the gift and took actual physical possession of the suit land and installed his Saw Mill thereon, under the name and style of 'Ali Saw Mill' in the year 1978. He also constructed a house over the suit land for the purpose of his said Saw Mill business. In 1981, the plaintiff/respondent constructed one Assam Type double storied building on the suit land, the ground floor of which was used by the plaintiff/respondent as his office and the top floor was used as rest house for the persons who used to visit the Mill for the purpose of business. In 1985, the defendant No. 1 Istaque Ali approached the plaintiff/respondent to allow him to reside on the top floor of the said house, as he had left his paternal house due to family dispute. Accordingly, he was permitted to reside on the top floor of the said house on condition that he would vacate the same, soon after completion of construction of his own house. In 2000, the defendant/appellant No. 1 constructed his own RCC house and shifted to his said house with his family and since then the said house remained in the exclusive possession of the plaintiff/respondent. 3. The plaintiff/respondent had decided to construct an Assam Type house over the said plot of land and accordingly, obtained permission from Goalpara Municipal Board for the purpose, in place of his old house standing thereon. 3. The plaintiff/respondent had decided to construct an Assam Type house over the said plot of land and accordingly, obtained permission from Goalpara Municipal Board for the purpose, in place of his old house standing thereon. However, the defendant/appellants started to disturb the plaintiff/respondent in his peaceful enjoyment of the suit premises claiming that the suit property belonged to their father and therefore, they have equal rights of share in the suit premises. On 28.03.2003, the plaintiff/respondent engaged some labourers to start the foundation work of the proposed Assam Type house, but the defendant/appellants created obstruction. Hence, the plaintiff/respondent instituted the suit seeking reliefs as stated above. 4. The defendant/appellant Nos. 1, 2 & 3 contested the suit by submitting a joint written statement contending, inter-alia, that there is no cause of action for the suit; that the suit is barred by limitation; that the suit is bad for non-joinder of necessary parties and that the suit is filed-suppressing material facts. It was contended that the plaintiff/respondent cannot derive any right, title and interest over the suit land by virtue of the Deed of Gift, being Registered Document No. 2368, dated 31.05.1977, as the same has not been made and done in accordance with the provisions of Gift under the Mohammedan Law. It was further contended that the suit land covered by the alleged Deed of Gift was under the exclusive possession of the contesting defendant/appellants, since before 1977 and the donee (plaintiff/respondent) was never delivered with the possession of the suit land after execution of the so-called registered Deed of Gift. Their further contention was that one Assam Type two storied building was built by the defendant/appellants for their business and residential purposes in the year 1980 with full knowledge of the plaintiff/respondent and others. It was specifically contended that the aforesaid gift deed was made purposely to secure license for Timber Saw Mill from the Forest Department. Late Akram Ali was a businessman and a reputed contractor by profession and with the intention of earning income from Timber Sawing business, he made the said deed to meet the requirements of various Regulations. The plaintiff/respondent was an unemployed youth in the year 1977 and was a dependant. The father of both the parties was being a guarantor secured a loan for M/S. Ali Saw Mill from the SBI, Goalpara Branch. The plaintiff/respondent was an unemployed youth in the year 1977 and was a dependant. The father of both the parties was being a guarantor secured a loan for M/S. Ali Saw Mill from the SBI, Goalpara Branch. He also invested a good amount of money to run the business which was supervised and looked after by the defendant/appellants till the same was closed down by the Forest department. The defendant/appellant No. 3 too invested a good amount in installing the Saw Mill on the suit land. 5. The further contention of the defendant/appellants was that defendant/appellant No. 1 was residing in the first floor of the house, standing over the suit land, on his own right and choice and it was a common property to all the legal heirs, left by deceased Akram Ali. The question of obtaining permission as alleged never arose. The defendant/appellant No. 1 also used to maintain his law chamber in one of the rooms in the ground floor of the said two storied Assam Type house. Thus, the defendant/appellant No. 1 has been in uninterrupted physical possession and enjoyment over the suit land and premises standing thereon with knowledge of all and he had never vacated the suit land and the premises. It was further contended that the plaintiff/respondent made an attempt to sale out the suit land and the house, standing on the suit land including the fixtures to a party and the instrument to that effect was signed by the plaintiff/respondent. Therefore, it was prayed to dismiss the suit with cost. 6. Based on the pleadings of the parties, the learned Trial Court settled the following issues to reach a just decision in the suit:- "(1) Whether there is cause of action for the suit? (2) Whether the suit is bad for non-joinder of necessary parties? (3) Whether proper Court Fee has been paid? (4) Whether the suit is barred by limitation? (5) Whether plaintiff is entitled to the declaratory decree for right, title and interest with confirmation for possession on the suit land, measuring 2B-3K-9 Lechas covered by Khatian No. 2 (old), Touzi No. 1 P.P. No. 18/93 Dag No. 353 and 355 (old)/134 (new) mentioned in plaint schedule? (6) Whether the plaintiff is entitled to the decree prayed for? (7) To what relief, if any, the parties are entitled?" 7. (6) Whether the plaintiff is entitled to the decree prayed for? (7) To what relief, if any, the parties are entitled?" 7. The plaintiff/respondent examined 5 (five) witnesses including himself and exhibited 12 (twelve) documents, while the defendant/appellants examined 2 (two) witnesses and exhibited 1 (one) document. 8. I have heard the arguments advanced by Mr. B.D. Deka, learned counsel for the defendant/appellants and Mr. S.P. Roy, learned Senior counsel for the plaintiff/respondent. Also perused the suit record and the impugned judgment and decree. 9. Mr. B.D. Deka, learned counsel appearing on behalf of the defendant/appellants has submitted that both parties are brothers and sons of Late Akram Ali and they are governed by Mohammedan Law. According to Mr. Deka, the plaintiff/respondent pleaded that their father Late Akram Ali, during his lifetime, had gifted the suit land to him by executing a registered Deed of Gift, on 31.05.1977 and after execution of the said document, the plaintiff/respondent accepted the gift and took actual physical possession of the suit land, whereon he started a Timber Saw Mill in the year 1978, and constructed an Assam Type double storied house, which plea the defendant/appellants in para 16 and 17 of their written statement, specifically denied. Mr. Deka further submitted that in para 9 and 10 of the written statement, the defendant/appellants contended that the plaintiff/respondent cannot derive any right, title and interest over the said so-called Deed of Gift as the same had not been made and done, in accordance with the provisions of Gift under the Mohammedan Law and it was executed for the sole purpose of securing license for Timber Sawing Mill from the Forest Department. Drawing attention to the issues framed by the learned Trial Court in the suit, Mr. Deka, learned counsel for the defendant/appellants, has submitted that no issue on the validity of the said Deed of Gift was, however, framed and decided. The learned Trial Court, Mr. Deka has further submitted, has failed to appreciate the evidence/cross-examination of PWs. Drawing attention to the issues framed by the learned Trial Court in the suit, Mr. Deka, learned counsel for the defendant/appellants, has submitted that no issue on the validity of the said Deed of Gift was, however, framed and decided. The learned Trial Court, Mr. Deka has further submitted, has failed to appreciate the evidence/cross-examination of PWs. 2, 3, 4 and 5, perhaps, due to misconception on Section 91 of the Evidence Act and has not even considered the evidence of the D.Ws, so far their evidence relate to the donor's non-relinquishment of ownership and control over the suit-land, even after execution of the said so called Deed of Gift followed by non-delivery of possession to the donee although mandatorily required under the provisions of the Mohammedan Law. Mr. Deka has, therefore, vehemently submitted that the learned Trial Court's Judgment & Decree is apparently perverse, being not based on available evidence, oral and documentary, and as such, the suit may be remanded back to the learned Trial Court for proper framing of issues and retrial of the suit. Mr. Deka has relied on the decision of this Court rendered in Anwar Ali (Md.) v. Mozibul Haque (Md.), reported in 2006 (suppl 1) GLT 696 and anothers decision of the Apex Court in Rangammal v. Kuppuswami & Anr, reported in (2011) 12 SCC 220 . 10. Refuting the above argument of the learned counsel for the defendant/appellants, Mr. S.P. Roy, learned Senior counsel for the plaintiff/respondent, has submitted that the defendant/appellants, in their written statement, have not disputed the validity of the gift deed in question and have failed to discharge their onus that after the death of their father Akram Ali in 1981, they constructed the house on the suit land after obtaining permission from the authorities. Mr. Roy, learned senior counsel has also submitted that the Timber Saw Mill located on the suit land was established on arrangement of loan from bank in the name of the plaintiff/respondent. Mr. Roy, learned Senior Counsel appearing for the plaintiff/respondent, has further submitted that the defendant/appellants in their written statement have prayed to dismiss the suit, without specifically challenging the validity of the Deed of Gift and without any counter-claim in this regard and that the revenue records as exhibited in the suit clearly show the absolute ownership and exclusive possession of the plaintiff/respondent only over the suit land. According to Mr. According to Mr. Roy, the learned Senior Counsel, no challenge to the registered gift deed is now maintainable being barred by Law of Limitation and that the said gift deed satisfied all the essential elements of a valid gift under the provisions of the Mohammedan Law. Mr. Roy has relied on the ratio of the judgments rendered by the Apex Court in Abdul Rahim & Ors. v. S.K. Abdul Zabar & Ors, reported in (2009) 6 SCC 160 and in Maria Margarida Sequeira Fernandes & Ors. v. Erasmo Jack De Sequeira (Dead) through LRS, reported in (2012) 5 SCC 370 . 11. Upon hearing the learned counsel of both sides and perusal of the relevant suit record, it appears that the crux in issue between the parties pertains to the question of execution of the registered Deed of Gift vide Ext. 2, dated 31.05.1977, in respect of the suit land by the father of both the parties Late Akram Ali in favour of the plaintiff/respondent. The learned Trial Court focused on this aspect as a collateral fact while deciding the issue No. 5, without framing a distinct issue on the validity and enforceability of the said Deed of Gift vide Ext. 2. The oral testimony adduced by both sides show that the parties are governed by the Mohammedan Law. 12. Under the Mohammedan Law for validity of the Deed of Gift, it must satisfy four basic elements; (i) declaration of gift by the donor; (2) relinquishment by donor of ownership and dominion; (3) acceptance of the gift by the donee, and (4) delivery of possession of the property by the donor. The relinquishment of ownership and dominion by the donor are necessary to complete the gift. In Anwar Ali (Md) v. Mozibul Haque (Md), reported in 2006 (suppl 1) GLT 696, a learned Single Judge of this court held:- "(5) Though Mohammedan law provides for both forms of gifts, namely, oral as well as written, it lays down four conditions for making a gift valid, the conditions being (i) declaration of gift by the donor, (ii) relinquishment by donor of ownership of, and dominion over, the gift, (iii) acceptance of the gift by the donee and (iv) delivery of possession of the property by donor. The relinquishment of control and ownership by the donor is necessary to complete the gift (see Most. The relinquishment of control and ownership by the donor is necessary to complete the gift (see Most. Bibi v. Sheikh Wahid, reported in ILR (1928) 7 Part 118, and Bibi Riajan Khatoon and Ors., v. Sadrul Alam and Ors. Reported in, AIR 1996 PATNA 156) (6) A donor, in Mohammedan Law, can revoke a gift before he relinquishes his control and dominion over the property, in question. In other words, until the time the donor has relinquished his control and dominion over the property, and before the done takes possession of the property gifted, the donor can cancel the gift, the reason being that before delivery of possession; there is no gift under Mohammedan Law." 13. Now, perusal of the pleadings of the parties, it transpires that although the plaintiff/respondent pleaded fulfilment of all the above requirements of a valid gift under the Mohammedan Law, which the defendant/appellants denied contending it as a document executed with the limited purpose to secure license for Timber Sawing Mill from the Forest Department, in favour of the plaintiff/respondent, without relinquishment of ownership and dominion over the suit land and delivery of possession thereof by their father Late Akram Ali, during his life time. Thus, the plea of the defendant/appellants is that Ext. 2, the so called registered Deed of Gift was a mere paper transaction and as such, not a valid gift deed under the Mohammedan Law. It is well settled that a gift is not valid, if facts are brought out, which clearly indicate that it is never acted upon or intended to be acted upon. 14. Section 101 of the Evidence act places the burden of proof on the person, who desires any Court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts. It is pertinent to mention that the validity of a gift in question here has to be tested according to the requirements of the Mohammedan Law as the parties are governed and not as per the provisions of the Transfer of Property Act, 1882 and further, if the Deed of Gift is by a registered document, it must be proved according to the provisions of Sections 68 to 71 of the Evidence Act. In Rangammal v. Kuppuswami & Anr, reported in (2011) 12 SCC 220 , the Apex Court held that the burden lies on the plaintiff who relies on validity of a document and he cannot rely on weakness or absence of defence of defendant to discharge the onus. 15. Turning to the evidence on record, it is, inter alia, seen from the evidence of P.W. 1, the plaintiff/respondent herein that their father Late Akram Ali died in 1982 and till his death, all his brothers lived together along with parents at Nayapara, Goalpara town with common kitchen and no partition of the landed property left by their deceased father has been ever effected. His evidence further reveals that Ext. 2, the Deed of Gift was executed by their father in his favour so that he could secure a Timber Saw Mill license vide Ext. 3, in 1977, when he was of sound health and no other gift was effected in favour of his other sons and daughters. He admitted to have mutated his name on the suit land without issuing any notice to his defendant/appellant brothers and one of the brothers is in his favour in respect of his claim. P.W. 2, Rezzak Ali, one of the brothers of the parties, who has supported the evidence of P.W. 1, his plaintiff/respondent brother, who stated that even after death of their father, his landed property has not been partitioned and the suit land is still in the name of their father and further, he has come to know about the gift of land only after going through the said document, Ext. 2. He (P.W. 2) has, however, not enquired from the 2 (two) attesting witnesses of the said document, namely, Istaque Ali, the defendant brother and Jiten Das (D.W. 2). From the evidence of P.W. 3 Brundavanen Setty, who was the Manager of the Timber Saw Mill, it appears that he believed the plaintiff/respondent as the owner of the Saw Mill as he was licensee of the Saw Mill and also of the land on which it was located. From the evidence of P.W. 3 Brundavanen Setty, who was the Manager of the Timber Saw Mill, it appears that he believed the plaintiff/respondent as the owner of the Saw Mill as he was licensee of the Saw Mill and also of the land on which it was located. On the other hand, the evidence of P.W. 4 Afifa Khan, the sister of both the parties, reveals that she has no knowledge about any of the exhibited documents including the alleged Deed of Gift and that their paternal property has not been partitioned and further, that she has neither seen nor gone through the said Deed of Gift allegedly executed by their deceased father, P.W. 5. Aminuddin Ahmed was the scribe of the Ext. 2, the Deed of Gift, and he did not know the location of the suit gifted land at the time of execution of the said document. 16. Coming to the evidence of D.W. 1 Istaque Ali, the defendant/appellant No. 1, it is noticed that the license of the Timber Saw Mill and the electric connection to the said Timber Saw Mill, which was installed, in fact in the year 1974, stood in the name of the plaintiff/respondent, who is his younger brother. A conjoint scrutiny of his evidence and the evidence of D.W. 2, Jiten Das, it is revealed that the said document was executed for the sole purpose of meeting the requirement of land holding in the name of the plaintiff/respondent to secure a license in his name for installing a Timber Saw Mill vide Ext. 3, the license, and D.W. 2 as family friend of both the parties associated with the entire exercise. 17. In Abdul Rahim & Ors. (Supra), the Apex Court held that the Limitation to file suit to challenge the validity of Deed of Gift is three years from the date of the knowledge of the transaction. Also in the case of Maria Margarida Sequeira Fernandes & Ors. (Supra), the Apex Court summarized on the principles of law relating to permissive or gratuitous possession as quoted herein below:- "97. Principles of law which emerge in this case are crystallized as under: (1) No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. (Supra), the Apex Court summarized on the principles of law relating to permissive or gratuitous possession as quoted herein below:- "97. Principles of law which emerge in this case are crystallized as under: (1) No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property. (2) Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The caretaker or servant has to give possession forthwith on demand. (3) The courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant. (4) The protection of the court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or licence agreement in his favour. (5) The caretaker or agent holds property of the principal only on behalf of the principal. He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession." 18. Despite the above pleadings and evidence, oral and documentary, adduced by both parties and with a view to bring finality in the litigation, the learned Trial Court omitted to have framed distinct issues on whether the alleged Deed of Gift executed by Late Akram Ali in favour of the plaintiff is a valid gift and the issue of Limitation to challenge its validity. It is the duty of the Court to frame proper issues on the materials as referred to in Order 14 Rule 3 of the C.P. Code affording opportunity to both the sides to adduce evidence, when an assertion made by the plaintiff has been denied by the defendants or vise-versa to eliminate the likelihood of a legitimate grievance in this regard. 19. 19. In view of the above reasons, the appeal stands partly allowed by setting aside the impugned Judgment & Decree and the evidence being not complete, the suit is remanded back to the learned Trial Court to frame proper/additional issues on the validity of the Deed of Gift, under the provisions of the Mohammedan Law and the limitation to challenge its validity, affording opportunity to both the parties to adduce additional evidence, if so advised and dispose of the suit in accordance with law. 20. Be it mentioned that the learned Trial Court while deciding the issue (S) as directed above shall not be influenced by any of the observations made by this Court in course of this judgment 21. Appeal stands disposed of. Send back the LCR along with a copy of this Judgment and Order. Disposed off.