Delhi District Court
Suit No. 546/03 vs Mohammad Azim Ahmed on 21 December, 2011
Suit No. 546/03 -1- Dated : 21/12/11
IN THE COURT OF SH. ABHILASH MALHOTRA,
CIVIL JUDGE, CENTRAL-02, TIS HAZARI COURTS, DELHI
Suit No. 546/03
Ejaz Ahmed Aslam
s/o. Sh. C.A. Mohammad Ismail
r/o. Dawat Nagar, Abul Fazl Enclave
Okhla, Jamia Nagar
New Delhi-110025.
.....plaintiff
Versus
Mohammad Azim Ahmed
s/o. Sh. Uday Singh
Behind Market Masjid
Plot on Khasra No. 223 Min
Okhla, Abul Fazl Enclave
Jamia Nagar, New Delhi.
.....defendant
Date of institution:06/07/1995
Date of reserving of judgment:14.11.2011
Date of pronouncement of judgment:21/12/2011
JUDGMENT
1. The present suit has been filed seeking the following relief :
"(a) a decree for possession be passed in favour of the plaintiff and against the defendant in respect of premises at Khasra No. 223 min measuring 185 Sq. metres situated at Abul Fazl Enclave, Okhla Jamia Nagar, New Delhi-110025 which is bounded as under :-
North : Adjacent to house owned by Smt. Sayyara Begum w/o. Shri Mohammad Abbas, Engineer and bearing private no. 123. South : Adjacent to house owned by Mohammed Azeez and bearing private no. 121.
East : Ajacent to Mosque and vacant Plot of land. West : Colony Road.
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Suit No. 546/03 -2- Dated : 21/12/11
(b) a decree for recovery of Rs. 18,000/- (Rupees eighteen thousand) as damages/mesne profits.
(c) cost of the suit may also be allowed in favour of the plaintiff and against the defendant; and
(d) mesne profits @ Rs. 500/- (Rupees five hundred) per month from the date of the filing of the suit till the delivery of the possession of the premises in suit and the plaintiff undertake to pay further court fee on further mesne profit if allowed, when directed."
The defendant has made the following counter claim :
"That the defendant is bonafide and legal owner of the suit property as set out in the present written statement particularly in preliminary objections in its paras No. 1 to 17. Therefore, the defendant is making a counter claim that the defendant be declared owner of the suit property bearing H No.122, Abul Fazal Enclave, Okhla, New Delhi, ad-measuing 3 biswas (old house no. 219, Abul Fazal Enclave, Okhla, New Delhi), arising out of Khasra No. 223, Min. situated in village Okhla, New Delhi, more particularly shown in RED colour in the site plan attached. The defendant is paying advelorum court fees towards his counter claim.
It is, therefore, prayed that this Hon'ble Court be pleased to declare the defendant as owner of the suit property being house no. 122, Abul Fazal Enclave, Okhla, New Delhi as shown in Red colour in site plan attached, in the interest of justice."
2. It is stated in the plaint that plaintiff had purchased 3 biswas of land in Khasra No. 223 min behind market Masjid, Abul Fazl Enclave, Okhla, Jamia Nagar, New Delhi-110025 vide registered Sale Deed dated 10.03.80 which was registered as document no. 1027, Vol. No. I book No. 4247, Pages 19 to 21 at Sub-Registrar Office, New Delhi registered on 11.03.80 (herein referred to as suit property). It is stated that Sh. Abdul Azim Khan was appointed by plaintiff as attorney to look after the said plot as plaintiff was living at that time in Pages: 2/25 Suit No. 546/03 -3- Dated : 21/12/11 Madras. Sh. Abdul Azim Khan constructed one room, kitchen, latrine, bath room on the aforesaid land in the year 1980/1981. The defendant came into contact with Sh. Abdul Azim Khan and allowed the defendant in year 1986 to reside temporarily in the suit property for sometime, without any charge and on humanitarian grounds. Defendant failed to vacate the premises and kept on postponing the date of delivery of possession. The attorney of plaintiff Sh. Abdul Azim Khan kept on requesting the defendant to vacate the premises but on his failure to do the same, the licence of defendant to reside in suit property was cancelled. The defendant instead of vacating the premises started unauthorised construction in the suit property in the month of May 1989 without consent and authority of plaintiff and his attorney. When attorney of plaintiff came to know about the said unauthorised construction he approached the defendant to stop the same and also lodged complaint in police chowkie Okhla P.S. Srinivaspuri, Delhi on 06.06.89 and 10.06.89 and also sent a telegraphic notice on 09.06.89 to the defendant directing to stop the addition and alteration in the existing structure in the suit property and asked to deliver back the vacant possession and to pay damages @ Rs. 200/- p.m. for use and occupation charges from 01.06.89. The defendant failed to hand over the possession and sent a reply dated 03.07.89 to the telegraphic notice issued by plaintiff. In said reply the defendant alleged himself to be owner of plot in dispute and claimed to be in possession of the plot from more than Pages: 3/25 Suit No. 546/03 -4- Dated : 21/12/11 12 years. Defendant also denied the status of being licensee in the suit property. Thereafter, the defendant started approaching the plaintiff and offered that he would vacate the suit premises provided the amount spent by him in the suit property for making construction be returned to him but no settlement could arrive in this regard.
3. After become the Secretary of the Jamaat-e-Islami Hind plaintiff had to stay in Delhi and needed an accommodation. The plaintiff requested the defendant to hand over the possession of the suit premises but the defendant instead of settling the matter filed the suit bearing no. 274/94 in the court of Sh. S.K. Sharma, Ld. Civil Judge, Delhi for permanent and mandatory injunction against the plaintiff alleging that plaintiff has gifted the suit property to him on 09.07.81 by an oral and irrevocable gift/hiba without any consideration and condition and out of love and affection. Being aggrieved from the aforesaid circumstances the present suit has been filed by plaintiff.
4. The defendant has filed the counter claim cum written statement. In written statement defendant has stated that plaintiff has gifted the suit property to the defendant on 09.07.81 as per provisions of Mohammdan law and since the date of gift the plaintiff has ceased to be owner of the suit property by way of gift/hiba made by plaintiff and the defendant has become absolute owner of the suit property. It is Pages: 4/25 Suit No. 546/03 -5- Dated : 21/12/11 stated that said gift was made by plaintiff in the presence of many persons including Sh. Narain Singh Jatav and Sh. Abdul Sattar on 09.07.81 when the defendant alongwith his wife and children embraced Islam religion and became Muslim
5. It is stated that defendant was Hindu by birth and converted into Islam on 09.07.81. On conversion of the defendant, plaintiff made a declaration of gift of suit property in favour of defendant. It is admitted by defendant that at the time of making gift the plaintiff was owner and in possession of the suit property as suit property was purchased by plaintiff in the year 1980. It is stated that plaintiff was major and was in sound mind at the time of making gift in favour of defendant. It is stated that defendant accepted gift and took delivery of the possession of the suit property from the plaintiff. It is stated that plaintiff parted with the possession of the suit property since 09.07.81 and defendant became absolute owner of the suit property.
6. It is stated that suit of the plaintiff is not maintainable as complete details of suit property have not been mentioned in the plaint and no site plan has been filed by plaintiff on record. It is further stated that suit of the plaintiff is also barred by limitation as defendant has become owner of the suit property by virtue of adverse possession.
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7. It is stated that on 09.07.81 a babool tree was standing in suit property and no construction was done. Defendant constructed Kaccha hut on the suit property after cutting the said babool tree and gradually and steadily started raising the construction on the suit property.
8. It is stated that children of the defendant use to sent letters to the defendant at the suit property from 09.07.81 to 1986. The defendant also applied for passport in the year 1983 and passport no. 7806765 dated 24.02.1983 was issued to the defendant. It is stated that record shows that defendant is in possession of suit property since 09.07.81 and contention of plaintiff that defendant started using the suit premises since 1986 is false. It is stated that passport has been issued to defendant at the suit property only. It is further stated that Ration Card bearing no. 10397 dated 07.12.1983 was issued by the authorities in favour of defendant at the address of suit property only.
9. It is stated that earlier the number of suit property was House No. 219, Abdul Fazal Enclave, Okhla, New Delhi but at present number is changed to House No. 122, Abdul Fazal Enclave, Okhla, New Delhi. It is stated that suit property is situated in Khasra No. 223 Min. Village Okhla, New Delhi. It is stated that house numbers are varying as it is unauthorised colony.
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Suit No. 546/03 -7- Dated : 21/12/11
10.It is stated that the plaintiff mis-represented the defendant by assuring to make him member of certain muslim community/association and got his signatures on certain blank papers. It is stated that signatures were obtained by Sh. Naseem Ganji by making mis-representation. It is further stated that the said documents are misused by plaintiff to create the notices and its reply. It is stated that no notice has been received by defendant and nor he has sent any reply to the plaintiff.
11.It is stated that after taking possession of the suit property defendant has gradually constructed a big house consisting of five rooms, Varandah, bathroom, latrine, kitchen, garden and open land. It is stated that facility of light and water is not available for the residents of locality where suit property is located.
12.It is stated that plaintiff developed greed to forcible dispossess the defendant from the suit property and on 24.07.94 two persons were sent by plaintiff to dispossess the defendant and defendant filed suit for permanent injunction against the plaintiff.
13.It is stated that in order to protect his title in the suit property defendant is making counter claim in the present case and seeking relief in the form of declaration thereby declaring the defendant to be owner of the suit property by virtue of gift/hiba made in favour of Pages: 7/25 Suit No. 546/03 -8- Dated : 21/12/11 plaintiff as per muslim law.
14.The defendant has denied execution of any power of attorney in favour of Sh. Abdul Aziz Khan. It is denied by defendant that construction of one room, kitchen, latrine, bath room was done by Sh. Abdul Aziz Khan on behalf of plaintiff in the year 1980/81. It is denied that Sh. Abdul Aziz Khan permitted defendant to reside temporarily in the suit property for period of six months on the humanitarian ground in the year 1986. It is denied that defendant was requested various times by the plaintiff to vacate the suit premises. It is denied that any licence was granted in favour of defendant by plaintiff. It is denied that defendant started unauthorised construction in the suit property in the month of May 1981 (sic). It is stated that defendant started raising construction in the suit property on 09.07.81 i.e. date from which he got possession. It is denied that attorney of plaintiff Sh. Abdul Aziz Khan lodged report on 06.06.89 and 10.06.89. It is denied that telegraphic notice was sent on 09.06.89 to the defendant by plaintiff. It is denied that defendant is liable to make payment of Rs. 200/- as damages for use and occupation w.e.f. 01.06.89. It is denied that any reply to the notice was sent by defendant through his counsel. It is stated that reply relied upon by defendant is fraudulently and is made by misusing the blank documents obtained by defendant. It is stated that alleged reply dated 03.07.1989 has been got issued in Pages: 8/25 Suit No. 546/03 -9- Dated : 21/12/11 connivance with Advocate Sh. Madan Gopal Dhingra. It is denied that defendant had approached the plaintiff for compromise and assurance to vacate the premises after getting the money spent by him on construction. It is stated that non action of plaintiff for more than 13 years clearly shows that plaintiff has no right to take any action under law and also estopped by law of limitation. It is denied that defendant is in unauthorised possession of the suit property and is liable to pay damages/mesne profits for use and occupation of the suit property. On the basis of aforesaid facts stated in written statement defendant has made the following counter claim :
"That the defendant is bonafide and legal owner of the suit property as set out in the present written statement particularly in preliminary objections in its paras No. 1 to 17. Therefore, the defendant is making a counter claim that the defendant be declared owner of the suit property bearing H No.122, Abul Fazal Enclave, Okhla, New Delhi, ad-measuing 3 biswas (old house no. 219, Abul Fazal Enclave, Okhla, New Delhi), arising out of Khasra No. 223, Min. situated in village Okhla, New Delhi, more particularly shown in RED colour in the site plan attached. The defendant is paying advelorum court fees towards his counter claim.
It is, therefore, prayed that this Hon'ble Court be pleased to declare the defendant as owner of the suit property being house no. 122, Abul Fazal Enclave, Okhla, New Delhi as shown in Red colour in site plan attached, in the interest of justice."
15. Plaintiff has filed replication and has reaffirmed the averments made in the plaint. Plaintiff has denied that he has gifted the suit property to defendant on 09.07.81 in the presence of Sh. Narain Singh Jatav, Sh. Abdul Sattar and other persons. It is stated that plaintiff does not know the aforesaid persons and has no connection with them at any Pages: 9/25 Suit No. 546/03 -10- Dated : 21/12/11 point of time. It is stated that plaintiff was not knowing defendant on alleged date of gift i.e. 09.07.81. It is stated that plaintiff was not in Delhi on 09.07.81 or in the year 1981 he was residing in Madras. It is denied that suit is barred by limitation and defendant has become owner of the suit property by adverse possession. It is stated that contentions of defendant are contradictory, as on the one hand defendant is claiming the rights in the suit property on the basis of alleged gift made by plaintiff and on other hand claiming adverse possession. It is denied that defendant has made Kaccha Hut in the suit property on 09.07.81 and gradually made construction on it. It is stated that attorney of plaintiff Sh. Abdul Aziz Khan had constructed one room, kitchen, latrine and bath room on the suit property on behalf of plaintiff in the year 1980/81. It is denied that defendant is in possession of the suit property since 09.07.81. It is denied that number of suit property earlier was 219 and it is 122 at present. It is stated that as property is not assessed to property tax and nor it is registered authorised colony, and therefore no property number has been given to the suit property. It is stated that as suit property falls between no. 121 and 123 therefore suit property is known as house no. 122. It is stated that at no time number of suit property was 219 as House number 219 is different house and very far away from the suit property. It is denied that plaintiff has tried to dispossess the defendant from the suit property by use of force. It is stated that defendant is not the owner of the suit property and counter claim of Pages: 10/25 Suit No. 546/03 -11- Dated : 21/12/11 the defendant is not maintainable at all. It is reaffirmed that attorney of plaintiff Sh. Abdul Aziz Khan allowed defendant in 1986 to reside temporarily for some months on humanitarian ground without any charge. Defendant did not vacated the suit property and started raising unauthorised construction in May 1989 without consent and authority of plaintiff and his attorney and therefore the licence of defendant was terminated. It is stated that defendant is occupying the suit property unauthorisedly and illegally. It is denied that plaintiff has obtained reply dated 03.07.89 in connivance with Advocate Sh. Madan Gopal Dhingra. It is stated that defendant has admitted the reply and his signatures, in the suit for injunction filed by him.
16.On completion of the pleadings issues were framed by my Ld. Predecessor by order dated 01.03.99. Following issues were framed in this case :
"1. Whether the plaintiff had gifted the suit property to the defendant on 09.07.81 as claimed by the defendant? OPD.
2. Whether the defendant is entitled to relief of declaration as owner of the suit property as is being claimed by the defendant in the counter claim? OPD.
3. Whether the plaintiff is entitled to decree of possession as claimed? OPP.
4. Whether the plaintiff is entitled to decree for recovery of damages for use and occupation charges/mesne profit as claimed at Rs. 18000/- or any other amount? OPP.
5. Whether plaintiff is entitled to mesne profit @ 500/- p.m. as claimed by plaintiff? OPP.
6. Relief."
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17.In order to discharge his onus plaintiff has examined himself as PW1 and PW2 Sh. Shabir Ali. Defendant has examined DW1 Sh. Mohd. Hasan, DW2 Sh. Narain Singh Jatav, DW3 Sh. Mohd. Azim Ahmed, DW4 Sh. Shakil, DW5 Sh. Mohd. Mohsin and DW6 Sh. Islamuddin. Before proceeding further it is pertinent to point out here that an application under order 39 rule 1 and 2 CPC was moved by plaintiff. The said application wad disposed off by order dated 06.05.09 passed by my Ld. Predecessor and defendant was restrained to hand over the possession of the suit property or create any third party interest till the disposal of the suit. I have heard the arguments and perused the record, the issue wise findings are as follows :
18.ISSUE NO. 118a. The onus to prove this issue was on defendant. Defendant has examined witnesses DW1 to DW6 to discharge his onus. DW1 in his testimony has stated that he was Imam in Masjid at Okhla in the year 1980 and know the defendant since 09.07.81. He has stated that defendant converted from Hindu to Muslim on 09.07.81 and constructed Jhuggi at the disputed plot. It is stated that there was no prior construction at the disputed plot in year 1981. He has stated that Kacha Jhuggi was made by defendant in the disputed plot in year 1981. He has denied that there was one room, latrine, bathroom existing at the suit property in the year 1981. He has denied that defendant was not residing in the suit property in the Pages: 12/25 Suit No. 546/03 -13- Dated : 21/12/11 year 1981.
18b. DW2 Sh. Narain Singh Jatav in his testimony has stated that defendant has became Muslim on 09.07.81 at Chitli Kabar Markaj, Delhi. The children and wife also got converted to Islam. He has stated that when defendant got converted into Islam many persons were present including Sh. Abdul Sattar. He has stated that he was also present at the time when defendant got converted into Muslim. He has stated that Mohd. Hamid Ali performed Kalma of defendant and his family members and after performing Kalma plaintiff made announcement that he is gifting his plot falling in Khasra no. 223 in Abdul Fazal Enclave, Delhi and defendant accepted the said gift. He has stated that defendant alongwith some people including him went to the said plot which was vacant and one person from Jamatia Islami told the defendant that said plot was given to him as his residence. Thereafter the defendant started construction in that vacant plot and he kept on assisting defendant in this work. It is stated that defendant gradually made pakka construction over the plot. Defendant has made two or three rooms in the plot within one year from date of possession. He has denied the suggestion that plaintiff was not present when the defendant converted into Muslim. He has denied that plaintiff has not made any announcement of gift and did not handed over the possession of the property to defendant. He has denied that plaintiff was in Madras on the date Pages: 13/25 Suit No. 546/03 -14- Dated : 21/12/11 when defendant got converted into Muslim. He has stated that plaintiff was present there and he has seen the plaintiff himself.
18c. DW3 Sh. Mohd. Azim Ahmed defendant himself in his testimony has stated that he got converted into Muslim religion on 09.07.81. He has stated that when he got converted into Muslim plaintiff, Sh. Mohd. Faruq Ahmed, Sh. Naseem Qazzi, Sh. Faruq, Sh. Narain Singh Jatav and many other persons were also present. He has stated that Kalma was read by Sh. Hamid Ali. He has stated that after ceremony, plaintiff said that now onwards he can reside with his family at plaintiff's plot in Okhla as a owner. He has stated that he went to plot alongwith his family and raised a hut at the vacant plot and started living there. He has stated the when he went to plot he was accompanied by four people namely Sh. Naseem Gazi, Sh. Shakeel Ahmed, Sh. Mohsin and Mistri Salamuddin. He has stated that he started living in the suit property since 09.07.81 and started raising pakka construction in form of a room in year 1982. It is stated that till 1984 he had constructed four rooms, latrine and bathroom and 30 feet deep well in the suit premises. He has stated that previous number of the suit property was 219 which fall in Khasra no. 223 and at present number of the suit property is 122. He has stated that his son use to sent letters to him at the aforesaid address. He has further relied upon letters exchanged between him and his children who were studying in Rampur which are Ex. DW3/2 Pages: 14/25 Suit No. 546/03 -15- Dated : 21/12/11 to Ex. DW3/8. He has further stated that plaintiff started harassing them in year 1995 and complaints made to various authorities are Ex. DW3/9 to Ex. DW3/11. He has further stated that he had written to Hon'ble Chief Justice of India in this regard and said telegram alongwith postal receipt is Ex. DW3/12 and Ex. DW3/13. He has stated that he received letter from the Commissioner of Police in this regard which is Mark D1. It is stated that the letter sent by Hon'ble Chief Justice of India to the Police Commissioner is mark D2. He has stated that he has filed complaint case in Patiala House Courts against plaintiff which is pending in the court. He has further stated that civil suit was also filed against the plaintiff which is also pending in the court of Sh. S.K. Sharma, the then Civil Judge, Delhi. Copy of injunction order dated 25.07.95 is Ex. DW3/14. Withdrawal statement as well as order dated 02.02.98 is Ex. DW3/12. He has stated that he is residing in the suit plot since 09.07.81 in the capacity of owner, as it has been given in the gift/hiba by the plaintiff. He has denied that no construction has been made by him in 1982, 1983 and 1984. He has denied that suit property has been given to him on license by the attorney Sh. Mohd. Azim. He has denied that plaintiff was not present at the conversion ceremony in the year 1981. It is denied that no gift was made by the plaintiff in his favour. He has denied that no possession has been handed over to him in the year 1981. He has denied that possession has been taken by him 1986 and construction has been raised in year 1989. He has Pages: 15/25 Suit No. 546/03 -16- Dated : 21/12/11 denied the receipt of telegraphic notice dated 09.06.89 and its reply. However, on the confrontation of Ex. PW1/3 witness has admitted the signatures but has stated that the signatures were taken by Sh. Nasim Gaji in the office of Jamat-a-Islami Hind on blank paper. He has denied that he has engaged Sh. Madan Lal Dhingra, Advocate on his behalf to draft the said reply.
18d. DW4 Sh. Shakil Ahmed in his testimony has stated that on 09.07.81 defendant alongwith his wife and children got converted in Islam. He has stated that in the conversion ceremony plaintiff, defendant and Maulana Hamid Ali and many other persons were also present. He has stated that after conversion plaintiff has made 'Hiba' in favour of defendant and thereafter they went to Okhla, Abdul Fazal Enclave, Delhi alongwith Sh. Narain Singh Jatav, Sh. Islamuddin, Sh. Ajaz Ahmed and Sh. Hamid Ali.
18e. DW5 Sh. Mohd. Mohsin in his testimony has stated that plaintiff was also present at the time of conversion ceremony and after conversion plaintiff made 'Hiba' in favour of defendant and defendant accepted the said 'hiba'. He has stated that thereafter he went to the spot alongwith defendant and plaintiff handed over the possession of the plot to the defendant. He has stated that he alongwith Sh. Shakil Ahmed, Sh. Narain Singh Jatav, Sh. Islamuddin and Sh. Rais Ahmed went alongwith plaintiff to the suit property.
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Suit No. 546/03 -17- Dated : 21/12/11
18f. DW6 Sh. Islamuddin in his testimony has stated that he attended the conversion ceremony and during the conversion ceremony plaintiff made 'hiba' in favour of defendant and defendant accepted the same. He has stated that plaintiff alongwith Sh. Narain Singh Jatav, Sh. Mohsin, Sh. Shakil and Sh. Islamuddin accompanied to the suit property.
18g. PW1 Sh. Ejaz Ahmed in his testimony has brought on record power of attorney Ex. PW1/1 executed in favour of Sh. Abdul Azim Khan. PW1 has reaffirmed the averments made in the plaint and has stated that he has never gifted the property in dispute to the defendant and license of the property was given to the defendant in year 1986 for his residence. The plaintiff has brought on record telegraphic notice revoking the licence of defendant which is Ex. PW1/2. The reply of the said notice is Ex. PW1/3. The site plan is Ex. PW1/4. It is stated that premises can easily fetch rent about Rs. 500/- to Rs. 600/- p.m. at the time of filing of suit and at present can fetch Rs. 1200/- p.m. In cross-examination PW1 has failed to give exact date when he has visited the suit property but it is stated that may be in the year 1980 or in the beginning of year 1981 he has visited the suit property. It is stated that present number of the suit property is 122 and it does not have any earlier number. Plaintiff has admitted that Mohd. Azim Khan has been converted into Muslim but has expressed his ignorance to the fact that he has converted on Pages: 17/25 Suit No. 546/03 -18- Dated : 21/12/11 09.07.81. He has admitted that in year 1981 he was 38 years old and was in sound state of mind. He has also admitted that he is owner of the suit property. He has stated that he was not present when the defendant converted his religion. He has denied that he had gifted the property to defendant on his conversion. He has denied that Mohd Satar and Sh. Narain Singh Jatav were present at the time of conversion of defendant into muslim. He has denied that defendant came into possession in 1981 and since then defendant is in possession of suit property. He has stated that there was construction already made in year 1980-81 under his instructions and has denied that there was no construction before 09.7.81. He has denied that defendant has raised kacha jhopri after 09.7.81. It is stated that before 1986 there was one small room, kitchen, bathroom in the suit property. It is stated that his attorney inducted defendant as licensee. Witness has failed to tell the date and month when the defendant has become licencee. It is stated that defendant has not taken possession from the plaintiff. It is stated that defendant was given licence on humanitarian ground without charging anything. It is stated that defendant has raised unauthorised construction from his own funds. It is stated that license was cancelled in 1989 by the attorney of plaintiff and attorney informed him in this regard. Regarding the site plan witness has submitted that he was not present when it was prepared. He has stated that he is not aware about the notice issued to defendant. He has stated that he do not Pages: 18/25 Suit No. 546/03 -19- Dated : 21/12/11 have any documents in his possession to show that defendant was inducted as licencee in the suit property. He has admitted that defendant has obtained electricity connection in his name and earlier there was no electricity supply.
18h. PW2 Sh. Shabir Ali has stated that number of premises is 122 and defendant is residing in suit property since 1986. He has stated that suit property was consisting one room, kitchen, latrine and bathroom and at present it consists of three more rooms. He has stated that plaintiff is owner of suit property and suit property could have easily fetched Rs. 500/- / Rs. 600/- in year 1990 and at present it can fetch Rs. 1000/- p.m. In cross examination this witness has failed to produce any documents to show that he is residing in the same locality. He has admitted that passport & voter ID Card relied upon him belongs to year 2000 and 1994-95. He does not have any document to show that he was residing in Abdul Fazal Enclave, Delhi in year 1985. It is stated that plaintiff has allowed the defendant to reside in suit property on humanitarian ground and defendant in 1985 made authorised construction which was objected by plaintiff. It is stated that initially suit property consisted of one room, kitchen, latrine and bathroom but after that three rooms has been constructed by defendant. He has expressed his ignorance about the time when the said construction was raised by plaintiff. He has denied that defendant started living at the vacant plot. He has expressed his Pages: 19/25 Suit No. 546/03 -20- Dated : 21/12/11 ignorance as to fact that when the defendant got converted from Hindu to Muslim. He has stated that he has no personal knowledge of conversion and gift / donation made by plaintiff to the defendant. It is denied that number of disputed property earlier was 219. He has stated that the suit property can fetch of Rs. 1000/- p.m. as the other properties in same location fetch the same amount of rent. He has stated that property was given to defendant for living by Sh. Abdul Aziz Khan who was attorney of plaintiff. He has denied that property in dispute was gifted by plaintiff to defendant on 09.7.81 and defendant was residing in the suit property since then.
18i. Before proceeding further it will be important to refer to the law laid down by Hon'ble Supreme Court in the case of Mahboob Sahab Vs. Syed Ismail & Ors., AIR 1995 SC 1205 wherein it was held that :
"5. Under S.147 of the Principles of Mahomedan Law by Mulla, 19th Ed., Edited by Chief Justice M. Hidayatullah, envisages that writing is not essential to the validity of a gift either of movable or of immovable property. Section 148 requires that it is essential, to the validity of a gift, that the donor should divest himself completely of all ownership and dominion over the subject of the gift. Under S.149, three essentials to the validity of the gift should be, (i) a declaration of gift by the donor, (ii) acceptance of the gift, express or implied, by or on behalf of the donee, and (iii) delivery of possession of the subject of the gift by the donor to the donee as mentioned in S.150. If these conditions are complied with, the gift is complete, Section 150 specifically mentions that for a valid gift there should be delivery of possession of the subject of the gift and taking of possession of the gift by the donee, actually or constructively. Then only gift is complete. Section 152 envisages Pages: 20/25 Suit No. 546/03 -21- Dated : 21/12/11 that where donor is in possession, a gift of immovable property of which the donor is in actual possession is not complete unless the donor physically departs from the premises with all his goods and chattels, and the donee formally enters into possession. It would, thus, be clear that though gift by a Mohammadan is not required to be in writing and consequently need not be registered under the Registeration Act, as gift to be complete, there should be a declaration of the gift by the donor; acceptance of the gift, expressed or implied, by or on behalf of the donee, and delivery of possession of the property, the subject matter of the gift by the donor to the donee. The donee should take delivery of the possession of that property either actually or constructively. On propf of these essential conditions, the gift becomes complete and valid. In case of immovable property in the possession of the doner, he should completely divest himself physically of the subject of the gift. No evidence has been adduced to establish declaration of the gift, acceptance of the gift by or on behalf of the minor or delivery of possession or taking possession or who had accepted the gift actually or constructively. Admittedly he was in possession and enjoyment of the property till it was sold to the appellant. Equally, in Mohammadan Law mother cannot act nor be appointed as property guardian of the minor. She equally cannot act as legal guardian."
18j. From the law laid down by Hon'ble Supreme Court it is clear that there has to be declaration of gift, acceptance of gift and delivery of possession of the property of gift by the defendant. In present case it is admitted position that defendant is in the possession of suit property. However, the dispute between the parties is that plaintiff is claiming that defendant is in possession as licencee since 1986 and on other hand defendant is claiming to be in possession as owner since 09.7.81 i.e. date of gift. The testimony of PW2 is contrary as on the one hand he has stated that he has no knowledge about the conversion and gift and on the other hand he Pages: 21/25 Suit No. 546/03 -22- Dated : 21/12/11 has denied that property in dispute was gifted by plaintiff to defendant on 09.7.81. DW1 to DW6 in their testimony have categorically stated that defendant was converted to Muslim in their presence and plaintiff declared gift of suit property in favour of defendant which was duly accepted by defendant and possession was also handed over in their presence by the plaintiff to defendant. Plaintiff has failed to lead any evidence to rebut the testimony of DW1 to DW6. Plaintiff has also failed to bring power of attorney holder Sh. Abdul Azim Khan into witness box to depose regarding licensor and licensee relationship. Plaintiff has also failed to bring on record any document showing that suit property was given on licence basis to defendant. It is the case of plaintiff that defendant started raising unauthorised construction since the date of possession but it is not understood why plaintiff has issued telegraphic notice Ex. PW1/2 only in the year 1989 on 09.06.89. Plaintiff has failed to clarify on record why he maintained silence for such a long period when defendant failed to vacate the property within the stipulated period of six months. On the contrary defendant has brought on record documents i.e.copies of passport issued in name of defendant on 24.2.83. Ration card issue in name of defendant on 24.2.83. The letters written by children of defendant before the year 1986. The passport and ration card are government record which shows that defendant was in possession of suit property before 1986. So far as disputed property number is Pages: 22/25 Suit No. 546/03 -23- Dated : 21/12/11 concerned it is admitted position of plaintiff that colony where the suit property is situated is not regularised and no property number has been allocated by the MCD. Plaintiff has failed to lead any evidence to show that property number had not changed from 219 to 122. Moreover in his testimony he has stated that he is not aware about the earlier property number.
18k. From the facts of this case it is clear that plaintiff has admitted the possession of defendant. It is clear that defendant is in possession of suit property since 09.7.81. It is also admitted and proved that defendant got converted into muslim and suit property was gifted to defendant by plaintiff in year 1981. It is also proved from the testimony of DW1 to DW6 that possession of suit property was handed over to defendant in presence of said witnesses. Plaintiff on the contrary has failed to lead any evidence to show that defendant was inducted as licensee in the suit property. It is clear that property was gifted by plaintiff to defendant and defendant accepted the same. Accordingly, this issue is decided in favour of defendant and against plaintiff.
19.ISSUE NO. 2The onus to prove this issue was on defendant. Hon'ble Supreme Court in Mahboob Sahab (Supra) has observed that declaration of gift, acceptance of gift and delivery of possession are cardinal to Pages: 23/25 Suit No. 546/03 -24- Dated : 21/12/11 make a gift complete and valid. I have already arrived at a finding that the suit property has been gifted by plaintiff to defendant as per muslim law and plaintiff divested himself from suit property. Plaintiff has failed to lead any evidence to rebut testimony of DW1 to DW6 to show that he was not present at the time of conversion of defendant into muslim. In view gift/hiba from plaintiff, the defendant has became owner of the suit property as per muslim law and defendant is entitled to relief of declaration as prayed in the counter claim. Accordingly, this issue is decided in favour of defendant and against plaintiff.
20.ISSUE NO. 3, 4 and 5The onus to prove these issues were on plaintiff. I have already decided in issue no. 1 that suit property was gifted by plaintiff to defendant as per muslim law. After completion of gift under muslim law plainitiff has left with no rights in the suit property and not entitle to claim possession/mesne profits and damages in the suit property. Therefore, issues no. 3,4 and 5 are decided in favour of defendant and against plaintiff.
21.RELIEF In view of the discussions above, the suit filed by plaintiff is dismissed. Counter claim is decreed. Decree of declaration is passed in favour of defendant and against plaintiff and defendant is Pages: 24/25 Suit No. 546/03 -25- Dated : 21/12/11 declared owner of suit property bearing no. 122 in Khasra No. 223 min behind market Masjid, Abul Fazl Enclave, Okhla, Jamia Nagar, New Delhi-110025 (shown as red colour in site plan). Costs of the suit are awarded in favour of defendant.
Decree sheet be prepared accordingly.
File be consigned to record room as per rules.
Announced in the open (Abhilash Malhotra)
court on 21/12/2011 Civil Judge, Central-02
Tis Hazari Courts,Delhi
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