Delhi District Court
Sh. Mohd. Shahid vs Sh. Mohd. Iqbal on 14 August, 2013
IN THE COURT OF MS. ANJANI MAHAJAN, CIVIL JUDGE17
(CENTRAL), TIS HAZARI COURTS, DELHI
SUIT NO. 83/06
Unique ID No. 02401C0053221996
MEMO OF PARTIES
Sh. Mohd. Shahid
S/o Late Sh. Mohd. Ibrahim,
R/o 2740, Chhoti Baradari, Ballimaran,
Delhi 110006
............Plaintiff
VERSUS
1. Sh. Mohd. Iqbal
S/o Late Sh. Mohd. Ibrahim
2. Sh. Mohd. Saleem
S/o Late Sh. Mohd. Ibrahim
3. Sh. Mohd. Naeem
S/o Late Sh. Mohd. Ibrahim
4. Sh. Mohd. Aleem
S/o Late Sh. Mohd. Ibrahim
5. Ms. Zareena Begum (Divorcee)
D/o Late Sh. Mohd. Ibrahim
6. Ms. Amina Begum (Divorcee)
D/o Late Sh. Mohd. Ibrahim
7. Ms. Kishwar Beguam
D/o Late Sh. Mohd. Ibrahim
All residents of property no. 2740,
Chhoti Baradari, Ballimaran, Delhi - 110006.
.....Defendants
Suit No. 83/06 Sh. Mohd. Shahid Vs. Mohd. Iqbal & Ors. 1/23
Date of institution of the Suit: 19.11.1996
Date on which judgment was reserved: 20.07.2013
Date of Pronouncement of Judgment: 14.08.2013
SUIT FOR POSSESSION AND PERMANENT INJUNCTION AND
RECOVERY OF DAMAGES
JUDGMENT
1. The plaintiff has filed the present suit seeking the following reliefs "a) Decree for possession of the disputed portions of suit property which are shown as 'RED' for ground floor, BLUE and as GREEN for first floor, as BLACK and PINK for second floor and the portions of common use of all floor as YELLOW in the site plan attached be kindly passed in favour of the plaintiff and against the defendants, thereby dispossessing them from the said disputed portions situated in property no. 2740, Chhoti Baradari, Ballimaran, Delhi - 110006.
b) A decree for permanent injunction be also passed in favour of the plaintiff and against the defendants, restraining the defendants, their family members and associates from transferring, parting with the possession of the disputed portions occupied by them which are shown in RED, BLUE, GREEN, BLACK, PINK and YELLOW colours in the site plan attached, situated in property no. 2740, Chhoti Baradari, Ballimaran, Delhi - 110006, to anyone Suit No. 83/06 Sh. Mohd. Shahid Vs. Mohd. Iqbal & Ors. 2/23 except the plaintiff.
c) A decree for Rs. 2,000/ being the damages from 01.10.1996 to 31.10.1996 for wrongful use and illegal occupation of the said disputed portions, being used and occupied by the defendants illegally and unauthorizedly, be also passed in favour of the plaintiff and against the defendants, holding the liability of them to pay the same jointly and severally.
d) A decree for the aforesaid damages at the rate of Rs. 2,000/ per month be also awarded from the date of filing the present suit till the date of restoration of the possession of the a aforesaid portions of disputed property from the defendants, in favour of the plaintiff and against the defendants.
e) Cost of the suit be also awarded to the plaintiff and against the defendants."
2. The plaintiff's case is that the plaintiff is the absolute owner of property no. 2740, Chhoti Baradari, Ballimaran, Delhi - 110006 consisting of four rooms, two stores, covered varandah, one W.C. on the ground floor, two rooms, one kitchen, one store, one bath room, covered verandah and W.C. st on the 1 floor, three rooms, two kitchens, one store, one bath room and W.C. nd on the 2 floor of the property in dispute (hereinafter referred to as the suit property). The suit property was gift to the plaintiff by his deceased father Sh. Mohd. Ibrahim on 01.01.1975. On the basis said oral gift the plaintiff was also Suit No. 83/06 Sh. Mohd. Shahid Vs. Mohd. Iqbal & Ors. 3/23 declared the absolute owner of the suit property by the court of Sh. J.M. Malik, the then Ld. S.J.I.C., Delhi vide order dated 07.10.1983, which was duly registered with the SubRegistrar, Delhi. The ownership of the plaintiff was accepted openly by the defendant and other legal heirs of Late Sh. Mohd. Ibrahim. The disputed property had also been assessed to house tax in the name of the plaintiff. The father of the parties expired in the month of June, 1976 in the suit property. The plaintiff and the defendants were residing in the suit property at the time of death of their father Late Sh. Mohd. Ibrahim together. On 07.09.1979, the plaintiff got marriage of defendant no. 6 with Sh. Mohd. Ahsan done and also got the marriage of defendant no. 5 done on 15.10.1982 with Sh. Islam from his own funds. Since the date of death of Late Sh. Mohd. Ibrahim, the defendants had been residing in the suit property as licensees of the plaintiff being his real brothers and sisters. The defendants no. 5 and 6 after their marriage had been living at their matrimonial home however after their divorce they started residing in the suit property as licensees of the plaintiff. Defendant no. 1 was the elder brother of the plaintiff and the defendants no. 2 to 7 were younger to the plaintiff. The plaintiff was running the business on the entire ground floor of the disputed property under the name and style of M/s. Simco Industries (India) under his sole proprietorship. In the month of May, 1987, the plaintiff had included the Suit No. 83/06 Sh. Mohd. Shahid Vs. Mohd. Iqbal & Ors. 4/23 defendants no. 2 to 4 in his business as they were jobless and started his business with defendants no. 2 to 4 under the partnership vide partnership deed dated 07.05.1987.
2.1 It is claimed that the said partnership business was run by the plaintiff and the defendants no. 2 to 4 till June, 1992. Thereafter, some disputes arose between the plaintiff and the defendants no. 2 to 4. The defendants no. 1, 5 and 6 also joined hands with the defendants no. 2 to 4 and the plaintiff was pushed out by the defendants with bare hands from the partnership business and its premises and they did not allow the plaintiff to even enter the business st premises. Defendant no. 1 was in possession of a room situated on the 1 floor of the suit property shown in blue in the site plan annexed to the plaint while defendants no. 4 to 7 were in possession of a room, kitchen and store st situated on the 1 floor of the suit property shown in green in the site plan.
st The covered verandah, bath room and W.C. Situated on the 1 floor were being used by defendants no. 1, 4 to 7 as common shown in yellow in the site plan and defendant no. 2 was in possession of a room and store situated on nd the 2 floor of the suit property shown in black in the site plan, which was earlier in possession of the plaintiff. In the year 1993, when the plaintiff had gone to his inlaws place with his family, the defendant no. 2 with the help of other defendants occupied the said portion of the suit property after breaking Suit No. 83/06 Sh. Mohd. Shahid Vs. Mohd. Iqbal & Ors. 5/23 open the locks of the plaintiff and removed his belongings forcibly, illegally and unauthorizedly in his absence. Plaintiff lodged a complaint with the police post Ballimaran, PS Hauz Qazi, Delhi to this effect. Defendant no. 3 was in nd possession of one room and kitchen situated on the 2 floor of the disputed suit property shown in pink in the site plan. The plaintiff was at present in nd possession of one room and kitchen situated on the 2 floor including the entire roof of the suit property shown in violet in the site plan. Defendants no. 2 to 4 were in possession of the entire ground floor but defendants except defendant no. 2 were in possession as licensees in their respective portions. Prior to 1993, defendant no. 2 was residing with defendants no. 4 to 7 in the st portions of 1 floor of the suit property shown in green in the site plan. Since July, 1992, the behaviour of all the defendants no. 2 to 4 changed and they started harassing the plaintiff on account of the partnership business. 2.2 Plaintiff alleges that in September, 1992 the behaviour of the defendants became cruel towards the plaintiff and he lodged various police complaints. Legal notice was issued to the defendants no. 2 to 4 but no reply was given by the defendants. Thereafter on 17.11.1992 legal notice was issued to all the defendants by which the plaintiff terminated the license of the defendants. The said notice was received back as unclaimed on 30.09.1992. Plaintiff filed a suit for permanent injunction against the defendants no. 2 to 4 Suit No. 83/06 Sh. Mohd. Shahid Vs. Mohd. Iqbal & Ors. 6/23 regarding his tenanted shop situated at Ram Bazar, Morigate, Delhi 6 which was decreed on 17.10.1995. Another suit for declaration and rendition of accounts was filed against the defendants no. 2 to 4 regarding the partnership business of M/s. Simco Industries (India). The defendants no. 2 to 4 had deprived the plaintiff for all his rights in the said business since June, 1992 and the case was pending (at the time of filing of the present suit) before the court of Ld. ADJ, Delhi. The defendants had filed a suit against the plaintiff challenging the ownership of the plaintiff in respect of the suit property which was pending at the time of the filing of the suit before the court of Sh. Sudesh Kumar, Civil Judge, Delhi. The defendant no. 1 had also filed a suit against the plaintiff regarding a telephone of the plaintiff which was pending before the court of Ld. Civil Judge and another case regarding the dispute of the tenanted shop of the plaintiff was pending before the S.D.M. (Kotwali), Delhi between the plaintiff and defendants no. 2 to 4. A criminal case U/s 341 I.P.C. vide FIR no. 368/94 titled as State Vs. Mohd. Saleem & Ors. registered against the defendants on the complaint of the plaintiff was also pending before the court of Ld. M.M., Delhi. The defendants had no intention to vacate the suit property and were adamant to take the law in their hands. Despite requests to vacate the suit property, the defendants had failed to do so. Legal notice dated 15.07.1996 was issued to the defendants who gave a Suit No. 83/06 Sh. Mohd. Shahid Vs. Mohd. Iqbal & Ors. 7/23 purportedly false reply dated 10.08.1996. The plaintiff revoked the license of the defendants. The plaintiff claims damages of Rs. 2,000/ w.e.f. 01.10.1996 from the defendants for their wrongful use and occupation of the portions of the disputed property. It is claimed that the defendants had threatened the plaintiff that they would part with possession of the suit property after taking huge amount as Pagri from him. Such a threat was lastly extended on 09.11.1996 by them, plaintiff claimed that the defendants had no right to part with possession of the suit property. It is claimed that the cause of action arose first of all on 07.10.1983 when the plaintiff was declared the absolute owner of the suit property and thereafter on 12.10.1992 when the plaintiff issued a notice to the defendants no. 2 to 4. On 17.11.1992 when notice was issued to all the defendants and on 15.07.1996 when last notice was issued thereafter on 10.08.1996 when the defendants gave their reply and lastly on 09.11.1196 when the defendants threatened to part with possession of the property.
3. Written statement was filed by the defendants. In the written statement, preliminary objections were taken. It was stated that the suit was not maintainable in the present form. The suit for declaration and permanent injunction had been filed by all the defendants against the plaintiff herein. The plaintiff and defendants were legal heirs of Late Sh. Mohd. Ibrahim and Suit No. 83/06 Sh. Mohd. Shahid Vs. Mohd. Iqbal & Ors. 8/23 defendants no. 1 to 7 were residing in house no. 2740, Chhotti Baradari, Ballimaran, Delhi 6. Smt. Zamani Begum, W/o Sh. Nazar Mohd. was landlady of the owner of the Double storied house no. 2740, Gali Pergone Wali, Bara Dari Sher Afghan, Ballimaran who shifted to Karachi in the year 1947 before partition. Late. Sh. Mohd. Ibrahim became the owner/landlord in the year 1947 when his mother Smt. Zamani Begum permanently shifted to Pakistan. Late Sh. Mohd. Ibrahim expired in the year 1976. In the lifetime of Late Sh. Mohd. Ibrahim, Mohd. Akil, Mohd. Kamil and Mohd. Shahid shifted to their respective addresses and had done separate business from the other family members. Mohd. Akil was residing at 2752, Baradari, Ballimaran, Delhi6 nd while plaintiff was residing at 2545, 2 floor, Tirha Beraham Khan Daryaganj, New Delhi while Mohd. Kamil, was residing at 2736, Baradari, Ballimaran, Delhi 6. It is averred that the plaintiff as well as two brothers Sh. Mohd. Akil and Sh. Mohd. Kamil has no right, title or interest in the suit property because they had taken their share in the property as well as their business during the lifetime of their father. On the suit property, on the ground floor, Sh. Mohd. Aleem (wrongly mentioned to be the plaintiff in the written statement, he is actually one of the defendants) who is stated to be an attorney was running a 'Karkhana' and all other the defendants were residing with Sh. Mohd. Aleem and other brothers. It was admitted that the defendants no. 5 and 6 were Suit No. 83/06 Sh. Mohd. Shahid Vs. Mohd. Iqbal & Ors. 9/23 divorcees and were residing in the suit property after the death of Late Sh. Mohd. Ibrahim. The plaintiff got an arbitration agreement dated 21/021993 executed between himself and one Sh. Gulfam Ahmed, S/o Sh. Abdul Karim, R/o H. No. 9000, Pul Bangash , Bara Hindu Rao, Delhi. The defendants have reproduced certain portions of the purported arbitration agreement in the written statement. It is pleaded that in collusion with Sh. Gulfam Ahmed, one Sh. Devender Kumar Sharma, Advocate was appointed as an Arbitrator who passed the award in favour of the plaintiff which was made rule of the court vide order dated 07.10.1983 by the cout of Ld. Sub Judge, Delhi. On the basis of the order dated 07.10.1983, the plaintiff applied for mutation before the office of MCD and without the knowledge of the defendants in collusion with Mohd. Akeel, Mohd. Kamil and Mohd. Gulfam. In the last week of July, 1994 the plaintiff along with two persons one of them being the property dealer in Ballimaran came to the ground floor where Mohd. Aleem was running a Karkhana and for the first time it came to their knowledge that the plaintiff was going to sell the property and some forgery had been done. It is claimed that the suit is not maintainable being hit by Section 34 and 41(j) of the Specific Relief Act.
3.1 On merits, the defendants denied that the plaintiff was the absolute owner of the property in dispute, or that vide oral gift deed dated 01.01.1975, Suit No. 83/06 Sh. Mohd. Shahid Vs. Mohd. Iqbal & Ors. 10/23 the suit property was gifted to the plaintiff by the deceased father Sh. Mohd. Ibrahim. It was also denied that the ownership of the plaintiff was accepted openly by the defendants and other legal heirs of Late Sh. Mohd. Ibrahim. It was denied that the suit property has been assessed in the name of the plaintiff in the house tax department. It was averred that the plaintiff never served Late Mohd. Ibrahim when Sh. Mohd. Ibrahim was seriously ill and always misbehaved with his father and was living separately since that time. The defendants have reproduced order dated 21.09.1994 purportedly passed by the court of Ld. Civil Judge in the suit for declaration and permanent injunction filed by the defendants therein. It is denied that the plaintiff and defendants were residing in the disputed property at the time of death of their father Sh. Mohd. Ibrahim. It is submitted that the plaintiff did not spend a single penny on the marriages of defendants no. 5 and 6. It is denied that the defendants are licensees. It is submitted that the defendants are residing in the suit property as legal heirs in their father's property. It is denied that the plaintiff was running business on the entire ground floor of the suit property in the name and style of M/s. Simco Industries (India) Ltd. under his sole proprietorship. It is submitted that the plaintiff tried to enter into the suit premises a number of times however the defendants did not allow the plaintiff nd to enter the same because he was residing at house no. 2545, 2 floor, Tirha Suit No. 83/06 Sh. Mohd. Shahid Vs. Mohd. Iqbal & Ors. 11/23 Beraham Khan Daryaganj, New Delhi. The averments contained in the plaint are basically denied. Legal notices have been denied and it is prayed that the suit of the plaintiff be dismissed with heavy cost.
4. Replication has been filed by the plaintiff to the written statement of the defendants. It was denied that during the lifetime of Late Sh. Mohd. Ibrahim, the plaintiff shifted from the suit property to another place and it was denied that the plaintiff had no right, title or interest in the suit property or that he had taken a share in the property and the business in the lifetime of his father. The contentions raised in the written statement were basically denied by those of the plaint were reaffirmed.
5. The following issues were framed in this case on 17.09.1998
1. Whether the suit is not maintainable in the present form as alleged in preliminary objection of written statement? OPD
2. Whether the plaintiffs are the owners of the suit property by way of oral gift as alleged and by way of declaration of court order dated 07.10.1983 passed by the court of Sh. J.M. Malk, the then SJIC, Delhi as mentioned in para no. 1 of the plaint? OPP
3. Whether the defendants are shareholders in suit propety being L. Rs. of late Mohd. Ibrahim, father of both the parties as alleged in written statement? OPD Suit No. 83/06 Sh. Mohd. Shahid Vs. Mohd. Iqbal & Ors. 12/23
4. Whether the defendants are licencees of the plaintiffs as claimed in the plaint? OPD
5. Whether the plaintiff is entitled to the possession of the premises in suit? OPP
6. Whether the plaintiff is entitled to the mesne profits? If so, at what, for what period and to what amount? OPP
7. Relief.
6. The plaintiff in evidence examined himself as PW1, Sh. Sujauddin as PW2, Sh. Shatrughan Poddar, record clerk from the SubRegistrar's office Kashmere Gate who had brought the summoned record as, PW3 and Sh. Sudeshi Ram, Record keeper from the House Tax Department who had brought the summoned record, was examined as PW4. The defendants in evidence examined Sh. Mohd. Aleem as DW1.
7. Final arguments were substantially addressed by counsel for plaintiff however thereafter despite opportunities further arguments were not addressed. The plaintiffs were granted an opportunity to file written arguments. The written arguments are on record. Ld. counsel for defendants addressed oral arguments. The certified copies of the judgment in the suit for declaration and permanent injunction (filed by the defendants herein) along with the judgment of the Ld. Appellate Court in the appeal thereto (file by the Suit No. 83/06 Sh. Mohd. Shahid Vs. Mohd. Iqbal & Ors. 13/23 plaintiff herein), were filed by counsel for defendants. The LRs have also filed the photocopies of the said judgments.
8. I have heard the final arguments and perused the record as well as the written arguments furnished by the plaintiff.
9. My issue wise findings are as follows Issues no. 1, 2 and 5 - (1) Whether the suit is not maintainable in the present form as alleged in preliminary objection of written statement? OPD, (2) Whether the plaintiffs are the owners of the suit property by way of oral gift as alleged and by way of declaration of court order dated 07.10.1983 passed by the court of Sh. J.M. Malk, the then SJIC, Delhi as mentioned in para no. 1 of the plaint? OPP and (5) Whether the plaintiff is entitled to the possession of the premises in suit? OPP
10. These issues are taken up together since the discussion on these issues is interconnected.
11. In a suit for possession of immovable property, the plaintiff is required to show a better right/title/interest to the property in dispute than the defendants. Admittedly, the parties to the suit are siblings, all legal heirs of Sh. Mohd. Ibrahim. The plaintiff claims in the plaint that the plaintiff and the defendants were residing in different portions of the property no. 2740, Baradari Sher Afghan Khan, Ballimaran, Delhi at the time of death of Sh. Mohd. Ibrahim and that the defendants were the licensees of the plaintiff in the suit property since the death of Sh. Mohd. Ibrahim (who admittedly died in the year 1996), as Sh. Suit No. 83/06 Sh. Mohd. Shahid Vs. Mohd. Iqbal & Ors. 14/23 Mohd. Ibrahim had gifted the suit property to the plaintiff on 01/01/75 by way of an oral gift which was accepted by all the defendants. The defendants on the other hand claim that they are in possession of the suit property being the legal heirs of Sh. Mohd. Ibrahim and deny the oral gift as pleaded by the plaintiff.
12. It is settled that under Muslim Law, a gift of immovable property can be made orally but the same must fulfil the requisites of a valid gift. Since the plaintiff bases his claim on the oral gift dated 01.01.1975, it is to be seen whether the plaintiff has been able to establish the factum of a valid oral gift in his favour or not.
13. The plaintiff examined himself as PW1 and deposed that the oral gift was executed on 01/01/75 in the presence of S/sh. Mohd. Anif, Mohd. Yamin, Sujauddin and Mohd. Ahmed. Further, the plaintiff deposed that Sh. Sujauddin called the other witnesses on the direction of the parties' father Lt. Sh. Mohd. Ibrahim. PW1 also deposed that all the family members were present at the time when all the witnesses were gathered and that Sh. Mohd. Ibrahim stated "Main gift kar raha hoon, yeh property no. 2740, Mohd. Shahid ko." PW2/Sh. Sujauddin testified in his examination in chief that the suit property was gifted to the plaintiff by his father and supported the plaintiff's version that he (PW2) was present at the time of gift orally made by Mohd. Suit No. 83/06 Sh. Mohd. Shahid Vs. Mohd. Iqbal & Ors. 15/23 Ibrahim and also went to call two persons Sh. Mohd. Hanif and Sh. Mohd. Yameen at the request of Sh. Mohd. Ibrahim. PW2 was the only witness to the alleged gift who was called by the plaintiff in evidence. The plaintiff testified in his examination in chief that out of the four witnesses, only Sh. Sujauddin and Sh. Mohd. Ahmed were alive (as on the date of the deposition of PW1) and no suggestion has been put to the plaintiff that his deposition in this regard is false. This deposition of PW1 that two of the witnesses had expired has thus gone unrebutted. The plaintiff/PW1 denied the suggestion that no gift of the suit property was made by the father of the parties and PW2 also denied the suggestion that no gift was made in his possession by Mohd. Ibrahim (it is obvious that the due to a typographical error, instead of 'by' the work 'to' has been mentioned in the suggestion). The question then is whether the alleged oral gift made by Mohd. Ibrahim to the plaintiff can, as per the principles of Muslim law on oral gifts be considered to be legally valid.
14. Ld. counsel for the plaintiff in this regard placed reliance on AIR 1995 SC 1205 Mahboob Sahab Appellant versus Syed Ismail and Ors wherein the essential conditions for a valid gift in Muslim Law have been laid down. It was held by the Hon'ble Supreme Court as follows " 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 Suit No. 83/06 Sh. Mohd. Shahid Vs. Mohd. Iqbal & Ors. 16/23 Registration Act; a 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 subjectmatter 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 proof of these essential conditions, the gift becomes complete and valid. In case of immovable property in the possession of the doner, her should completely divest himself physically of the subject of the gift."
15. Thus, one of the essential conditions of a valid gift under Muslim Law is delivery of possession of the subject matter of the gift by the donor to the donee. Of course, when the donee is in possession of the property which is the subject matter of the gift, as is the plaintiff's case in the present suit, the donor may not be required to hand over physical possession of the same, but there is still the requirement of handing over atleast constructive possession of the suit property by the donor and to divest himself of the dominion or control over the property gifted. In the written arguments furnished on behalf of the legal heirs of the plaintiff, it is stated that the constructive possession was handed over to the plaintiff but the plaintiff has failed to plead and prove that Sh. Mohd. Ibrahim divested himself completely of the dominion and control over the suit property. In addition, it cannot be ignored that the defendants were admittedly residing at the suit property at the time the Suit No. 83/06 Sh. Mohd. Shahid Vs. Mohd. Iqbal & Ors. 17/23 alleged oral gift was executed but neither the plaintiff nor PW2 deposed that Sh. Mohd. Ibrahim said anything about the portions of the suit property which were in possession of the defendants. Further, it is not the case of the plaintiff that the portions of the property in question which were in possession of the defendants were in common/joint possession of all, rather it is claimed that some portion was for common use and as such everyone was occupying their respective portions. The defendants claim to be coowners and the plaintiff along with Sh. Mohd. Ibrahim was required to do some overt act so that at least constructive/symbolic possession of the portions of the suit property in possession of the defendants at the time of execution of the alleged gift could be handed over to the plaintiff which could have been done by for instance, Sh. Mohd. Ibrahim and the plaintiff giving notices to the defendants immediately in this regard, or any other act which could prove that the donor did all in his power to put the plaintiff in possession (physical/constructive/symbolic) of the entire suit property but no such overt act is pleaded by the plaintiff to have been done at the time of execution of the alleged oral gift. The legal notices have been sent by the plaintiff admittedly not at the time of execution of the alleged oral gift but many years later in 1992 and thereafter in 1996, which were replied to by the defendants. Nothing turns on these legal notices. Even to show his dominion and control of the suit Suit No. 83/06 Sh. Mohd. Shahid Vs. Mohd. Iqbal & Ors. 18/23 property, the plaintiff has not adduced any cogent evidence. PW4/ Sh. Swadeshi Ram, Record Keeper from the House Tax Department brought the record pertaining to the suit property showing mutation for the purpose of house tax of the suit property in the name of Sh. Mohd. Shahid/plaintiff having been effected on 27/02/84 prior to which the record was apparently in the name of Mohd. Zamani (PW4 deposed that as per his record the name was Smt. Mohd. Zamani but this discrepancy is of no significance to the present dispute since the parties do not dispute that Sh. Mohd. Ibrahim derived interest in the suit property from Smt. Zamani Begum). The plaintiff furnished no explanation for not having got the property mutated in his name immediately upon the alleged gift being executed and even the basis for the mutation as per the deposition of PW4, was the copy of the award which has admittedly been held to be void by the Ld. Civil Judge, Delhi vide judgment dated 23.12.2011 which has been subsequently confirmed by the Ld. Appellate Court vide judgment dated 25.03.2013. In any case, mere mutation of the suit property in the name of the plaintiff that too done on the basis of an award now held to be void does not constitute proof of dominion and control of the suit property by the plaintiff.
16. The essential ingredient of handing over of possession by Sh. Mohd. Ibrahim, including divesting himself of the dominion and control of the suit Suit No. 83/06 Sh. Mohd. Shahid Vs. Mohd. Iqbal & Ors. 19/23 property in favour of the plaintiff, has thus not been established by the plaintiff. Valid oral gift is not proved by the plaintiff.
17. Thus valid oral gift not having been proved by the plaintiff, he cannot be said to be the absolute owner of the suit property and additionally regarding the arbitral award having been made a rule of court vide order dated 07.10.83 by the then Ld. SJIC, as earlier observed, admittedly the suit of the defendants herein seeking declaration that the said award is void has been decreed and the said judgment has been upheld vide judgment of the Ld. Appellate Court dated 25.02.2013, certified copy of which has been placed on record by the defendants while a photocopy of the same has been filed by the LRs of the plaintiff along with their written arguments. The issue of the validity of the arbitral award is thus no more res integra and the finding that the arbitral award is void operates as res judicata between the parties.
18. Therefore, since the plaintiff and defendants are all the legal heirs of Sh. Mohd. Ibrahim through whom all the parties claim interest in the suit property, all the parties would be coowners, none would have a better right to the same qua the others and plaintiff is not entitled to the relief of possession qua the defendants. Neither is the plaintiff the exclusive owner of the suit premises. The plaintiff's appropriate remedy would have been to file a suit for partition and possession. The suit of the plaintiff in the present form is not Suit No. 83/06 Sh. Mohd. Shahid Vs. Mohd. Iqbal & Ors. 20/23 maintainable. It is true that the other defendants except DW1 have not entered the witness box however the plaintiff must first be able to establish his case and discharge his onus before asking the court to look at the deficiencies in the case of the defendants.
19. In view of the aforesaid discussion, issue no. 1 is decided in favour of the defendants and against the plaintiff and Issues no. 2 and 5 are also decided against the plaintiff and in favour of the defendants. Issue no. 3 Whether the defendants are shareholders in suit property being L. Rs. of late Mohd. Ibrahim, father of both the parties as alleged in written statement? OPD
20. The defendants examined DW1/Sh. Mohd. Aleem who deposed in his affidavit of evidence that the plaintiff and two other brothers namely Mohd. Akil and Mohd. Kamil had no right, title or interest in the suit property as they had taken their share in the property as well as the business during the lifetime of their father but no documentary evidence has been adduced to prove this contention which merely remains a bald averment. In fact, DW1 admitted in his crossexamination that he had no documentary proof to show that the said three brothers had taken their share during the lifetime of their father. It is however admitted by the defendants that the plaintiff and defendants are the legal heirs of Sh. Mohd. Ibrahim and there is no dispute that Sh. Mohd. Ibrahim did not have any right over the suit property. It is not Suit No. 83/06 Sh. Mohd. Shahid Vs. Mohd. Iqbal & Ors. 21/23 alleged by any party that Sh. Mohd. Ibrahim died leaving behind any will and the alleged oral gift dated 01/01/1975 in favour of the plaintiff does not fulfil the essential ingredients of a valid gift as per Muslim Law. Thus, all the legal heirs of Sh. Mohd. Ibrahim who include the plaintiff and the defendants are co sharers in the suit property.
Issue decided as above.
Issue no.4 Whether the defendants are licencees of the plaintiffs as claimed in the plaint? OPD
21. The onus to prove this issue is actually on the plaintiff since it is the plaintiff's contention that the defendants are licencees in the suit property but apparently due to a typographical error the onus reads as 'OPD', the onus is corrected to read as 'OPP' in exercise of the powers of the court under Order 14 Rule 5 CPC.
22. The plaintiff has not established sole and exclusive ownership of the suit property and the existence of licensorlicensee relationship between himself and the defendants and I have already held that the plaintiff (whose share would now devolve on his legal heirs impleaded in the present case upon his death) and defendants are cosharers in the suit property. Therefore, this issue is decided against the plaintiff and in favour of the defendants. Issue no.6 Whether the plaintiff is entitled to the mesne profits? If so, at what, for what period and to what amount? OPP Suit No. 83/06 Sh. Mohd. Shahid Vs. Mohd. Iqbal & Ors. 22/23
23. The plaintiff has been held to not be entitled to the relief of possession, having merely a right/title/interest in the suit property equivalent to, and not better than, that of the defendants, all being legal heirs of Late Mohd. Ibrahim. Consequently, the plaintiff is not entitled to any mesne profits. Issue is decided against the plaintiff and in favour of the defendants. Issue no. 7 Relief.
24. In view of the aforesaid issuewise discussion, the suit of the plaintiff is dismissed. Parties to bear their own costs.
Decree sheet be prepared accordingly.
File be consigned to Record Room after necessary compliance.
Announced in the open court ANJANI MAHAJAN
On 14.08.2013 Civil Judge - 17 (Central)
14.08.2013
Suit No. 83/06 Sh. Mohd. Shahid Vs. Mohd. Iqbal & Ors. 23/23