1
In the Court of the Principal Civil Judge (Senior Division) : Narasaraopet.
Present:- Smt. A. Shobha Rani,
Prl. Civil Judge (Senior Division),
Narasaraopet,
Thursday, this the 28th day of MARCH, 2024
Original Suit No.37/2019
Between:-
Sk. Himambi
... Plaintiff.
And
1. Sk. Rahima
2. Mahammad Noor
3. Mahammad Amir Hamja
4. Sk. Shamshad Begum
5. Sk. Salam
... Defendants.
This suit is coming on 14.2.2024for final hearing before me in the presence of Sri B. Pitcheswara Rao, Advocate for Plaintiff and of Sri K. Sambasiva Rao, Advocate for the Defendants 1 to 5, upon considering the material on record, hearing on both sides and having stood over till this day for consideration, this Court delivered the following:-
J U D G M E N T
This is a suit to declare that the plaintiff is the absolute owner of the plaint schedule property and for consequential relief of delivering vacant possession of suit schedule property by the defendant No.1 and for costs.
The brief averments of the plaint are as follows:
2.The plaintiff submits that originally the suit schedule property and some other properties belongs to Sk. Ameer Bibi, W/o Sk. Junnu
Saheb as she got the property under registered Gift deed dt.9.8.1940.
2
The said Ameer Bi duly accepted the gift and took the possession of the property and enjoying the properties. While enjoying the said property, she in turn orally gifted the same properties to her granddaughter who is the plaintiff herein out of love and affection on 1.1.1970. Since the date onwards, she accepted the oral gift and took the possession over the property and has been enjoying the property without any interruption.
She became old and her children are settled in view of their jobs in different places, as such she is under care and protection of her son at
Mangalagiri Town. The defendant No.1 is residing at Kondaveetikota and facially known person to her family, came to her and requested that she is very poor and has no shelter to stay there by she would live in the house her house situated in the suit schedule property. Thereby she being a village lady and she felt that it is better to keep the house in some body’s protection to look after and maintain well and not being encroached by anybody like boundary owners and for keeping the property clean, accepted the request of the 1st defendant and permitted him to stay in her house, but she was staying with her children at her convenient. She and her children never suspected the defendant’s bonafidies and permitted him to stay in her house to live for all these years as a licensee. She has been put in possession of the schedule property on 1.2.2014. While the matter stood, the defendants have conspired together and hatched so many plans to grab her property taking advantage of her absence in the village and also tried to create some sham and nominal documents incorporating the schedule mentioned property even though the said documents not at all helpful to them in any manner. It is also a fact that some of the village officials were also involved in creating the fake documents with regard to the schedule property. At one point of time, the MRO, Yadlapadu issued the 3 possession certificate dt.24.3.2017. The 1st defendant is in unlawful possession of the property. She approached the defendant No.1 and demanded him to vacate the house in which she permitted her to stay to give some time to vacate the same, but subsequently at present the defendant is giving evasive replies and threatening her with dire consequences. The defendants 2 to 5 are making claim that they are in possession and enjoyment of the schedule property having title over the schedule property. She approached the police of Yedlapadu Police
Station, but they failed to resolve the matter. Hence she filed the suit for declaration of their right over the plaint schedule property and consequential possession and for perpectual injunction.
The averments of the written statement of the defendants 1, 2, 4 and 5 are as follows :
3.The defendants denied most of the allegations made in the plaint and submits that there is no relationship between the plaintiff and the alleged original holder as Sk. Ameer Bibi. The property covered the gift deed dt.9.8.1940 no way concerned with the property owned by the defendant. The plaintiff deliberately encompassed the property of the defendants and some others by showing wrong recitals. Out of the total extent of plaint schedule, the plaintiff has no iota of interest in the property. The 2nd defendant herein sold away an extent of Ac.0-02 cents to one Kakani Venkateswarlu under a regd. Sale deed dt.2.5.2016. The above said Kakani Venkateswarlu purchased an extent of Ac.96-80 Sq.
yards equalent to Ac.0-02 cents from the 3rd defendant under a regd.
Sale deed dt.8.8.2016. After purchase the property ever since onwards he has been in peaceful possession and enjoyment. Whereas the 5th defendant gifted an extent of 136 Sq. yards equalent to Ac.0-03 cents 4 to the 4th defendant under a regd. Gift deed dt.19.9.2016. The 4th defendant accepted the gift started to enjoy the property. The 1st defendant sold an extent of Ac.0-02 cents to one Sayyad Musa under a regd. Sale deed dt.17.1.2017 and ever since onwards he is in possession.
As the plaintiff does not know about location of the property, she did not implead the persons who are in actual possession and she got mentioned the entire schedule property of the plaint as vacant, but there are several constructions thereon. As such without seeking the remedy of mandatory injunction, the suit for declaration of title and for consequential recovery of possession is not maintainable. In addition to the extent mentioned by the defendants, the 1st defendant has got Ac.0-02 cents of site as shown in the rough sketch. The remaining extent after excluding Ac.0-11 cents out of the suit schedule is in possession of third parties viz., Sk. Fakirayya and Sk. Sardar also not impleaded as parties. The plaintiff has to seek the remedy of her personal status as the grand daughter of Sk. Ameen
Bibi. It is fake to say that the MRO, Yadlapadu issued possession certificate. With regard to houses and vacant sites in Gramakantam competent authority is Panchayath Secretary under G.O. No.187 which has to be verified by his superior officer. The defendants have been in possession and enjoyment to their respective properties and mutated their names in the Gram Panchayath records and by obtaining their respective Aadhar Cards and voter cards. They also making payment of service charges to APSPDCL for electricity. The plaintiff is not entitled for the reliefs she claimed. Basing upon the oral gift, the relief of declaration of title cannot be granted. The plaintiff never in possession of the schedule property at any point of time as she left the village at about 30 years back. The 2nd defendant is unconcerned with the schedule property. The suit is bad for non joinder and mis joinder of parties. The 5 suit is barred by limitation. There is no jural relationship of licensor or licensee between the parties. The plaintiff and her men belong to ruling party, they want to grab the property by portending their power for which the suit has been filed with a wrong recitals and age old boundaries of the schedule basing upon unconcerned documents. Hence prayed to dismiss the suit with costs.
4.Basing on the above pleadings, the following issues were settled for trial:-
1. Whether the plaintiff is entitled for declaration that she is absolute owner of plaint schedule property as prayed for?
2. Whether the plaintiff is entitled for consequential relief of recovery of possession of suit schedule property from 1st defendant as prayed for?
3. To what relief?
5.During the course of trial, on behalf of the plaintiff, P.Ws.1 and 2 are examined and got marked Exs.A1 to A7. On behalf of the defendants, D.W.1 is examined and got marked Exs.B1 to B7 on their behalf.
6.Head the arguments and perused the material on record.
Issue Nos.1 and 2:
7.To avoid repetition, these Issues are inter related, it would be just and convenient evidence available on record is appreciated while answering these points together and hence these issues are being 6 answered together.
In support of the case of the plaintiff, P.Ws.1 and 2 were examined and got marked Exs.A1 to A7. Ex.A1 is the registered gift deed dt.9.8.1940 executed by Sk. Moula Saheb in favour of Sk. Ameer
Bibi, W/o Junnu Saheb. Ex.A2 is letter dt.10.12.2020 addressed by
District Collector to the District Panchayat Officer, Guntur. Ex.A3 is the true copy of proceedings in ROC.No.213/2017, dt.12.8.2017. Ex.A4 is the copy of ROC.No.4290/2021 G-3, dt.29.11.2021 issued by the District
Panchayat Officer, Guntur. Ex.A5 is the certified copy of order in
Crl.P.3565/2020, dt.24.2.2021 on the file of Hon’ble High Court of A.P.,
Amaravathi. Ex.A6 is the endorsement dt.18.5.2018 issued by Tahsildar,
Edlapadu. Ex.A7 is the F.I.R in Cr.No.133/2020 of Edlapadu P.S. along with complaint and charge sheet, which is marked during the cross- examination of D.W.1.
8.P.W.1 in her chief examination affidavit reiterated the contents of the plaint. P.W.1 in her cross-examination deposed that
Ameer Bibi is the mother-in-law of her mother-in-law. Ameer Bibi had a son and a daughter. There was no partition between the children of
Ameer Bibi. The son of Ameer Bibi is Moula Saheb and he is her father-in- law. Moula Saheb had one son i.e., her husband. Ameer Bibi resided at
Kondaveedu. She do not remember when the said Ameer Bibi died. Her mother-in-law is Khasimbi. Ameer Bibi given the property to her mother- in-law, who in turn had given the same to her. Ameer Bibi did not execute any document in favour of her mother-in-law, so also her mother-in-law in her favour. Since 5 to 6 years, she has been residing at
Mangalagiri. She cannot say the extent of plaint schedule property.
7
There is a tiled house in the plaint schedule and it is constructed by her father-in-law. She do not know whether the tax was imposed to the plaint schedule either in the name of her father-in-law or in her name.
Her husband died at Guntur, by that time, she was at Guntur. She gave the plaint schedule property to the 1st defendant about 15 years ago under permissive possession. She got issued a legal notice to the 1st defendant demanding her to vacate the plaint schedule property before the filing of the suit. She presented a report against Panchayat Secretary by name Sk. Shadik Ali contending that he issued possession certificate for her land. She do not know whether the plaint schedule property is situated in Gramakantam and there are 80 families residing in the said property which is comprising Ac.20-00. She do not know that the 2nd defendant sold Ac.0-02 cents of the land out of the plaint schedule property to one Kakani Venkateswarlu under a registered sale deed dt.2.5.2016. She do not know whether the said Kakani Venkateswarlu also purchased two more cents from the 3rd defendant. She do not know whether the 5th defendant executed any gift deed in favour of 4th defendant for an extent of Ac.0-03 cents out of the plaint schedule property. She do not know whether the total property sold by the defendants was only Ac.0-09 cents and the remaining Ac.0-11 cents are in the possession and enjoyment of the 3rd parties. She do not know whether the Tahsildar issued any possession certificate for the plaint schedule in her name. She do not know the boundaries and survey numbers of the plaint schedule. P.W.1 denied that she has been residing at Mangalagiri since 30 years and all her identity proofs are with the address at Mangalagiri and the property covered under Ex.A1 is located in Door No.205/ED, whereas the schedule of the plaint shows that the property is in survey No.225/3 and it is a Gramakantam. Herself and 8
Ameer Bibi has no relation and she is not her relative. P.W.1 further denied that the 1st defendant out of Ac.0-04 cents covered under the plaint schedule, sold Ac.0-02 cents to one Moosa under a registered sale deed dt.17.1.2015 and the suit is not maintainable for non-joinder of necessary parties. P.W.1 further denied that since 30 years she was never in possession and enjoyment of the plaint schedule property and her suit is not in time and it was barred by limitation.
9.In support of the contention of P.W.1, the son of the plaintiff examined as P.W.2 and P.W.2 corroborated the evidence of
P.W.1. P.W.2 in his cross-examination stated that the plaintiff is not his relative and she is relative of his daughter-in-law. The plaintiff is the maternal grandmother of his daughter-in-law. Jakriya is the husband of the plaintiff. The husband of the plaintiff worked as constable in the
Police Department and after retirement, he died about 20 years back.
The plaintiff and Jakriya have three sons and three daughters. Jakriya resided in Anandapet, Ponnur road, Guntur and the entire service of
Jariya was at Guntur and his death was also at Guntur. Since 6 to 7 years, the plaintiff has been residing at Mangalagiri in the house of her daughter by name Mohammed Sattar. Since from his childhood, he got acquaintance with the family of the plaintiff. Ameer Bibi died more than 60 years ago and she died before his birth. One Junnu Saheb is the husband of Ameer Bibi. According to him, the said Ameer Bibi got two children i.e., a boy and a girl. The son of Ameer Bibi is Moula Saheb and the said Moula Saheb is the father-in-law of the plaintiff. He is a retired employee in Veternary Department. Since 20 years, he is residing at
Mangalagiri. He know the extent, boundaries and survey number of the plaint schedule property, it is Ac.0-19 cents in extent. An old tiled house 9 in an extent of Ac.4 ½ cents along with compound wall is also in existence in the plaint schedule property. She used to visit the plaint schedule property regularly on every Moharram. The present year also, he visited the plaint schedule property. One Raheema is residing in the old tiled house situated in the plaint schedule property. He know the defendant and he got acquaintance being their villagers. No documents were reduced into writing between the plaintiff and the 1st defendant.
Except the gift deed there are no other documents. The plaint schedule extent of Ac.0-19 cents is part of Grama Kantam. The 2nd defendant sold an extent of Ac.0-02 cents to one Kakani Venkateswarlu and the 3rd defendant also sold an extent of Ac.0-03 cents to the said Kakani
Venkateswarlu. The 5th defendant executed a gift in favour of 4th defendant basing on the possession certificates issued by the Panchayat
Secretary and Surpanch. The 1st defendant sold Ac.0-02 cents out of her
Ac.0-04 cents to Syed Musa, who is her son-in-law under a registered sale deed. Basing on the fake certificates issued by the Panchayat
Secretary criminal cases were registered against the then Panchayat
Secretary so also against the defendants. Whereas P.W.5 denied that the defendants 1 to 5, Kakani Venkateswarlu and Syed Musa by raising
RCC daba houses have been in possession and enjoyment of the plaint schedule property, but not in the old tiled house. Out of Ac.0-19 cents,
Ac.0-09 cents are in possession and occupation of Pakiraiah and Shaik
Sardar. P.W.2 further denied that either Ameer Bibi or the plaintiff have no right over the plaint schedule property and the defendants occupied the plaint schedule property since long time from generations.
10.In support of the contention of the defendants, the 2nd defendant himself examined as D.W.1 and he reiterated the contents of 10 the written statement in his chief examination affidavit. Through D.W.1,
Exs.B1 to B7 are marked. Ex.B1 is the certified copy of registered sale deed dt.2.5.2016 executed by D.W.1 in favour of Kakani Venkateswarlu.
Ex.B2 is the certified copy of registered sale deed dt.8.8.2016 executed by Mohammad Ameer Hanja (3rd defendant) in favour of Kakani
Venkateswarlu. Ex.B3 is the certified copy of registered gift deed dt.19.9.2016 executed by Shaik Salam (5th defendant in favour of Shaik
Shamshad Begam. Ex.B4 is the certified copy of registered sale deed dt.17.1.2017 executed by Shaik Raheema (1st defendant) in favour of
Syed Musa. Ex.B5 is the served legal notice dt.16.11.2018 issued by the plaintiff counsel to the defendants. Ex.B6 is the rough sketch attached along with the written statement. Ex.B7 is the attested copy of proceedings of the District Panchayat Officer, Guntur in
ROC.No.1708/2017/G7, dt.4.11.2017 attested by the District Gram
Panchayat Officer, Palnadu.
11.D.W.1 in his cross-examination deposed that the defendant No.1 is his wife, the defendant No.3 is his brother, one Syda
Musa is his son-in-law i.e., his daughter’s husband, the defendant No.5 is his brother-in-law. All the defendants are his relatives. A crime is registered against him and Sarpanch of his village with regard to the plaint schedule property and also himself and his family members are attending adjournments before the Addl. Junior Civil Judge’s Court,
Chilakaluripet vide C.C.No.503/2021 i.e., Ex.A7. He is residing at
Kondaveedu Kota in Door No.7-89 and the same was given by his mother-in-law. He has no documentary proof to show that the above property stands in his name. He has proof to show that his mother-in- 11 law paid house tax for a period of 20 years. From the date of construction of the plaint schedule property, his mother-in-law used to pay the house tax. He do not know when the current connection take place in the plaint schedule property. As on today, they have paying electricity bill in the name of his mother-in-law. The plaint schedule property having electricity connection. The plaint schedule property is an extent of Ac.0-19 cents including his house. He know that the son of the plaintiff was died in the suspicious manner in the suspicious manner in the occasion of Moharam festival. The police examined him in the above suspicious death of plaintiff’s son, the plaintiff also filed complaint against him. As per Ex.B6, the measurements are not mentioned to any side of the boundaries. Before Exs.B1 to B4, the property is not surveyed and measurements are not taken by them. Hence Exs.B1 to B4 does not contain any kind of measurements. Exs.B2, B3, B4 of vendees are his relatives. Ex.B1 vendee is not his relative. There is no document stand in the name of his mother-in-law with regard to the plaint schedule property. Before Exs.B1 to B4, they obtained possession certificate and sold Exs.B1 to B4 property. The Panchayat Secretary by name Sadiq Ali issued possession certificate and the Sarpanch is Gouse Sandani. The said Sadiq Ali disputed that he issued false possession certificate. The possession certificate issued by Sadiq Ali is canceled by the District
Panchayat Office, Guntur in ROC.No.1708/2017/G7, dt.4.11.2017. Ex.B7 is the attestation copy by District Grama Panchayat Officer, Palnadu in
ROC.No.1708/2017/G7, dt.4.11.2017. Earlier the roof of top of plaint schedule property is tiles and same were damaged, hence he put Iron sheets in an extent of Ac.0-01 1/2 cents and the same is not informed to the plaintiff. He did not made any application before Gram Panchayat 12 with regard to alteration. He did not inform about the alteration to
Kakani Venkateswarlu. The defendants 1 to 5 are their relatives. D.W.1 denied that Exs.B1 to B4 are created by them as they have no right in the property of Exs.B1 to B4 and also denied that the defendants 1 to 5 and Kakani Venkateswarlu are created sham and nominal documents of the plaint schedule property.
12.A conjoint reading of pleadings of both the parties and evidence, oral and documentary, adduced by them and the material on record makes it clear that the plaintiff claiming right, title and possession over the plaint schedule property through Ex.A1 contending that originally the suit schedule property belongs to Sk. Ameer Bibi, W/o Sk. Junnu
Saheb and she got the property under registered Gift deed dt.9.8.1940 and the said Ameer Bibi accepted the gift and took the possession of the property under Ex.A1 and while enjoying the said property, the said
Ameer Bibi orally gifted the some properties to her grand daughter i.e., the plaintiff out of love and affection on 1.1.1970 and since the date onwards, she accepted the oral gift and took the possession of the property and had been enjoying the property without any interruption, whereas the 1st defendant came to her and requested her that she has no shelter to stay thereby she would live in her house situated in the schedule property and she permitted him to stay in her house to live all the years as a licensee and she has been put in possession of the schedule property on 1.2.2014. The MRO, Yadlapadu issued the possession certificate dt.24.3.2017. Then she approached the 1st defendant to vacate the house, but D.Ws.2 to 5 making claim that they are in possession and enjoyment of the schedule property having title and enjoyment over the schedule property. Whereas the defendant in the 13 written statement contended that there is no relationship between the plaintiff and the alleged original holder Sk. Ameer Bibi.
13.It is a settled proposition of law that in a suit for declaration of title and possession, the onus is upon the plaintiff to prove his title and also to prove his title independently, and a decree in her favour cannot be awarded for the only reason that the defendants have not been able to prove their title. Furthermore, as per the settled proposition of law that no person can convey a better title then that he has vendee. In the present case, the plaintiff contended that the said
Ameer Bibi orally gifted some properties to the plaintiff out of love and affection on 1.1.1970. As per Ex.A6, the property under Ex.A1 situated in Survey No.225/3, which is Grama Kantam.
14.In this regard, I relied upon the citation in Hafeeza Bibi
and others Vs. Shaikh Farid (Dead) by L.Rs., and others reported
in AIR 2011 Supreme Court 1695, wherein it was held by their
Lordships of Hon’ble Apex Court that ----
“The Privy Council in the case of Mohammad Abdul Ghani (since
deceased) & Anr.v. Fakhr Jahan Begam & Ors.1 referred to
‘Mohammadan Law'; by Syed Ameer Ali and approved the statement
made therein that three conditions are necessary for a valid gift by a
Muslim: (a) manifestation of the wish to give on the part of the donor; (b)
the acceptance of the donee, either impliedly or expressly;
"5. Under Section 147 of the Principles of Mahomedan Law by
Mulla, 19th Edn., edited by Chief Justice M. Hidayatullah, envisages that
writing is not essential to the validity of a gift either of moveable or of
immovable property. Section 148 requires that it is essential to the validity
of a gift that the donor should divest himself 1 1922 (49) IA 195 2 (1995) 3
SCC 693 completely of all ownership and dominion over the subject of the
14
gift. Under Section 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 Section 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 the gift is
complete. Section 152 envisages that where the 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 Mohammedan is not required
to be in writing and consequently need not be registered under the
Registration Act; for 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
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 proof of these essential conditions, the gift becomes
complete and valid. In case of immovable property in the possession of the
donor, he should completely divest himself physically of the subject of the
gift......."
27. The position is well settled, which has been stated and restated
time and again, that the three essentials of a gift under Mohammadan Law
are; (i) declaration of the gift by the donor; (2) acceptance of the gift by
the donee and (3) delivery of possession. Though, the rules of
Mohammadan Law do not make writing essential to the validity of a gift;
an oral gift fulfilling all the three essentials make the gift complete and
irrevocable. However, the donor may record the transaction of gift in
writing. Asaf A. A. Fyzee in Outlines of Muhammadan Law, Fifth Edition
(edited and revised by Tahir Mahmood) at page 182 states in this regard
that writing may be of two kinds : (i) it may merely recite the fact of a
prior gift; such a writing need not be registered. On the other hand, (ii) it
may itself be the instrument of gift; such a writing in certain
circumstances requires registration. He further says that if there is a
declaration, acceptance and delivery of possession coupled with the
formal instrument of a gift, it must be registered. Conversely, the author
says that registration, however, by itself without the other necessary
conditions, is not sufficient.”
15
15.In view of the above citation, there are primarily three elements that must be met in order for a Muslim to successfully transfer property or make a gift. The following are the conditions i.e., the donor makes a gift declaration, the donee’s acceptance of the gift, the donor’s transfer of ownership and the donee’s acceptance of it. The donor is someone who expresses their readiness to donate their possession to another individual. The donee, on the other hand, is the individual who affirms his assent to the acceptance of the donor’s gift.
16.In the present case, the plaintiff contended that the said
Ameer Bibi who duly accepted the gift under Ex.A1 and she orally gifted some properties to her out of love and affection on 1.1.1970, since then she accepted the oral gift and took the possession of the property.
Further, P.W.1 in his cross-examination stated that one Ameer Bibi is the mother-in-law of her mother-in-law. Ameer Bibi had a son and daughter.
Her mother-in-law is Khasimbi. Ameer Bibi given the property to her mother-in-law, who in turn given the same to her and the said Ameer Bibi did not execute any document in favour of her mother-in-law, so also mother-in-law in her favour. She cannot say the extent of the plaint schedule property. She gave the plaint schedule property to the defendant about 15 years ago under permissive possession and she do not know the boundaries and survey numbers of the plaint schedule property.
17.The P.W.2 who stated that he is the son of the plaintiff, but in the cross-examination P.W.2 stated that the plaintiff is not his relative and she is relative of his daughter-in-law. The plaintiff is the maternal 16 grandmother of his daughter-in-law and the P.W.2 also categorically admitted that the said Ameer Bibi died more than 60 years ago and she died before her birth and the husband of the plaintiff worked as Constable in the Police Department. After retirement, he died about 20 years ago.
One Raheema is resident in the old tiled house situated in the plaint schedule property. No documents were reduced into writing between the plaintiff and the 1st defendant. Except the gift deed, there are no other documents and the plaint schedule property is a part of Grama Kantam.
18.On thorough analysis of oral and documentary evidence adduced by both the parties, it reveals that Ex.A1 which is the registered gift deed executed by Sk. Moula Saheb in favour of Sk Ameer Bibi, W/o
Junnu Saheb and the Ex.A1 is the registered gift deed dt.9.8.1940 pertains to the D.No.205/ED to an extent of 0-19 cents, but whereas the plaint schedule property is located in Survey No.225/3. On perusal of
Ex.A2, dt.10.12.2020, letter addressed by the District Collector to the
Panchayat Officer, Guntur contains that the representation given by Sk.
Imambi i.e., the plaintiff that one Gouse Sandhani and others of
Kondaveedu Villge colluded with Panchayat Secretary, Kondaveedu and created fraudulent certificates for Sy.No.225/3. Hence requested to conduct enquiry. Whereas the Ex.A2 is only a representation given by the plaintiff and it does not establish any kind of title in favour of the plaintiff.
On perusal of Ex.A3, dt.12.8.2017, which is a true copy of proceedings in
ROC.213/2017, it does not establish any title. On perusal of Ex.A4 is a copy of ROC.4290/2021 G-3, dt.29.11.2021 issued by the District
Panchayat Officer, Guntur with regard to the Survey No.225/3 and it does not establish any kind of title of plaintiff with regard to the plaint schedule property. Ex.A5 is dt.24.2.2021 certified copy of order in 17
Crl.P.3565/2020, dt.24.2.2021 on the file of Hon’ble High Court of A.P.,
Amaravathi. On perusal of Ex.A5 is related to the crime was registered against Shaik Sadik Ali, the Panchayat Secretary, Thimmapuram
Grampanchayat and the defacto complainant is the plaintiff in the present suit. Hence, Ex.A5 also does not establish any title of the plaintiff with regard to the plaint schedule property. Ex.A6 is an endorsement dt.18.5.2018 issued by Tahsildar stating that as per Ex.A1, the Survey
Number is 225/3, which is Grama Kantam and a representation submitted by the plaintiff. The defendants also filed Exs.B1 to B4 in support of their contention. On perusal of Ex.B1 executed by Mohammad Noor in favour of Kakani Venkateswarlu of Ac.0-02 cents in Door No.225/3 with the boundaries of East – Z.P. Road, South – Ameer Hanja’s land, West –
Mohammad Sardar’s land, North – Abdul Salam limits. On perusal of
Ex.B2, registered sale deed dt.8.8.2016 executed by Mohammad Ameer
Hanja (3rd defendant) in favour of Kakani Venkateswarlu to an extent of 96.8 Sq. yards in D.No.225/3. On perusal of Ex.B3, certified copy of registered gift deed dt.19.9.2016 executed by Shaik Salam (5th defendant) in favour of Shaik Shamshad Begam to an extent of 130 Sq.
yards in D.No.225/3. On perusal of Ex.B4, certified copy of registered sale deed dt.17.1.2017 executed by Shaik Raheema (1st defendant) in favour of Syed Musa to an extent of Ac.0-02 cents or 97 Sq. yards in
D.No.225/3.
19.As per Section 101 to 104 of Indian Evidence Act deals with the burden of proof. It is well settled dictum that the burden of proving a fact rests on the party, who subsequently asserts the affirmity of the issue and not upon the party who denies it for negative is usually in capable of proof. Section 102 of Indian Evidence Act enumerates the possession for 18 ascertain on which the burden of proof lies. Section 102 of Indian
Evidence Act states the burden of proof in a suit or proceedings lies on the person who would fail if no evidence at all were given on either side it means that the burden of proof lies on the party that party must fail if he does not discharge the burden by giving evidence. In the instant case, the burden is heavily on the plaintiff and she did not place any material
before this Court that she is having right and interest over the property.
It is settled preposition of law in a suit for declaration of title and possession onus is upon the plaintiff to prove her title and also to prove her tile independently and a decree in her favour cannot be awarded for the only reason that the defendants not been able to prove their title.
Admittedly, the plaint schedule property is a Grama Kantam. P.W.1 failed to prove the 3 essentials of gift under Mohammedan Law i.e., declaration of the gift by the donor, the acceptance of the gift by the donee and delivery of possession. Whereas the plaintiff not stated when the plaint schedule property gifted by the donor to her and when she accepted the gift by the donee and she did not state about the delivery of possession though the rules of Mohammedan Law do not make writing essentials to the validity of the gift and an oral gift fulfilling all the three essentials make the gift complete and irrevocable. As per Exs.A1 to A7 the plaintiff failed to establish his title over the plaint schedule property. Even though the plaintiff stated that he gave plaint schedule property to the 1st defendant about 15 years ago under permissive possession, but the plaintiff not filed any proof with regard to her possession from the date of oral gift and she filed the present suit for declaration and injunction.
Hence the burden is always lies in the suit for declaration and title for possession is that of the plaintiff.
19
20.On careful perusal of documents relied upon by both the parties and in the light of the evidence adduced on their behalf coupled with the admissions made by the witnesses examined on behalf of the plaintiff during the course of cross-examination, it is crystal clear that not even a scrap of paper is filed by the plaintiff to show that she is in possession and enjoyment of the plaint schedule property and got perfect title and it is very much clear that the plaintiff is seeking the relief on the basis of weaknesses of the case of the defendant not placed any material to show her title and also interest over the suit schedule property.
Therefore the plaintiff is not entitled to the relief of declaration of title though the entire burden is on the plaintiff to prove her title and interest over the property, but she failed to establish the same by placing cogent and convincing evidence before the Court. On the over all contentions of the entire material after discussing the evidence on record coupled with the admissions made by the witnesses, I found that the plaintiff miserably failed to establish her right, title and possession over the schedule property and therefore the plaintiff is not established her claim over the plaint schedule property. Accordingly these issues are answered.
Issue No.3:
21.In view of my findings on Issues 1 and 2, the plaintiff is not entitled for any relief as prayed for.
22.In the result, the suit is dismissed. No costs.
Dictated to the Steno Gr.III, transcribed by her, corrected and
pronounced by me in the open Court on this the 28th day of MARCH, 2024.
Sd/- A. Shobha Rani,
PRINCIPAL CIVIL JUDGE (SENIOR DIVISION),
NARASARAOPET.
20
Appendix of Evidence
Witnesses Examined
For Plaintiff:For Defendant:
P.W.1: Shaik Himambi D.W.1: Shaik Mohammad Noor P.W.2: Noor Mahammad
Exhibits Marked
For Plaintiff:
Ex.A1 :Regd. Gift deed dt.9.8.1940 executed by Sk. Mowla Saheb in favour of Sk. Ameer Bibi, W/o Junnu Saheb. Ex.A2 :Letter dt.10.12.2020 addressed by District Collector to the District Panchayat Officer, Guntur. Ex.A3 :True copy of proceedings dt.12.8.2017 in ROC No.213/2017. Ex.A4 :Copy of ROC No.4290/2021, G-3, dt.29.11.2021 issued by the District Panchayat Officer, Guntur. Ex.A5 :Certified copy of Order in Crl.P.3565/2020, dt.24.2.2021 on the file of of Hon’ble High Court of A.P., Amaravathi. Ex.A6 :Endorsement dt.18.5.2018 issued by Tahsildar, Edlapadu. Ex.A7 : F.I.R. in Cr.No.133/2020 of Edlapadu P.S. along with complaint and charge sheet.
For Defendants:
Ex.B1 :Certified copy of registered sale deed dt.2.5.2016 executed by D.W.1 in favour of Kakani Venkateswarlu. Ex.B2 :Certified copy of registered sale deed dt.8.8.2016 executed by Mohammad Ameer Hanja (3rd defendant) in favour of Kakani Venkateswarlu. Ex.B3 :Certified copy of registered gift deed dt.19.9.2016 executed by Shaik Salam (5th defendant) in favour of Shaik Shamshad Begum. Ex.B4 :Certified copy of registered sale deed dt.17.1.2017 executed by Shaik Raheema (1st defendant) in favour of Syed Musa. Ex.B5 :Served legal notice dt.16.11.2018 issued by the plaintiff counsel to the defendants. Ex.B6 :Rough sketch attached along with the written statement. Ex.B7 :Attested copy of proceedings of the District Panchayat Officer, Guntur in ROC.No.1708/2017/G7, dt.4.11.2017 attested by the District Gram Panchayat Officer, Palnadu.
Sd/- A. Shobha Rani,
P.C.J. (S.D), NRT.