MOHAMMAD GHAYASULLA Vs. H ASADULLA SHARIFF

JUDGEMENT

(1.) THIS is a defendants' appeal questioning the correctness and legality of the judgment and decree passed in O.S. No.4692/2007 dated 10-4-1997 on the file of the VIII Additional City Civil Judge, Bangalore where under the suit filed by the appellants for declaration came to be dismissed.

(2.) THE facts leading to the filing of this appeal are as under and the parties are referred to as per their rank in the trial Court.

(3.) IT is contended by Mr. Shariff that during 1996 process server from Small Causes Court came near the suit schedule property to serve Court summons to second defendant in respect of an eviction petition filed by first defendant against second defendant in HRC 10357/1995. IT was contended in the suit that plaintiffs made enquiries and found that first defendant had filed an eviction petition as referred to above claiming himself to be the owner and depicting second defendant as the tenant and on enquiry with the first defendant they came to know that he had purchased the suit schedule property and immediately there after wards an application for getting impleaded themselves as parties to the eviction proceedings was filed by them which application was dismissed in the year 1997 and immediately on such dismissal the present suit has been filed seeking for declaration as stated herein above. IT was contended that on 1-8-1991 the first wife of the second defendant i.e., plaintiffs mother expired and on the 40th day ceremony the second defendant gifted the property in favour of the plaintiffs i.e., on 23-9-1991 and confirmed the Hiba. Second defendant has given consent letter to the Corporation authorities for change of khatha in favour of the plaintiffs by letter dated 25-9-1991 and confirmed the Hiba declaration has been given by the second defendant himself which is dated 23-9-1991 as also an affidavit of even date and contends that the said Hiba is in consonance with the Mohammedan Law and as such trial Court has dismissed the suit without examining as to whether Hiba is revoked in accordance with law. He would submit, trial Court also did not examine as to whether Hiba suffers from any infirmities and contends that as per Ss. 167 of Mohammedan Law once gift is made, it cannot be revoked except by a decree of Court and contends that finding of the trial Court on issue No. 1 is erroneous since the trial Court has not examined as to whether Hiba suffers from any infirmities and trial Court has also not considered the fact that plaintiffs have proved lawful possession over the suit schedule property as on the date of the suit. Mr.Sharif would contend by drawing the attention of the Court to paragraph 2 of the written statement filed by the second defendant where under he admits execution of Hiba in favour of the plaintiff of 23-9-1991 and when such admission is there the burden is not on the plaintiffs to disprove these facts since admitted facts need not be proved. He would contend that when second defendant has taken a contention that Hiba executed by him is revoked. The burden is on the second defendant to prove this fact and the second defendant having not proved this fact trial Court ought not to have dismissed the suit. He would draw the attention of the Court to Ex.P.2 to show that possession has been delivered and Ex.P.8 to P.11 and P.13 to evidence the fact that khatha is in the name of the plaintiffs and they have been paying the taxes. He would also submit that admittedly second defendant had delivered original title deeds of the suit schedule properties to the plaintiffs and these facts clearly go to show that plaintiffs are in possession of the suit schedule property.