BUGGA BAI Vs. BAKRID KHAN

JUDGEMENT

(1.) THIS appeal by the plaintiff is directed against the judgment and decree dated 23.12.1995 passed in Civil Suit No. 203-A/1995 by the 7th Addl. District Judge, Raipur. The brief facts are that the plaintiff and defendant are sister and brother. Their father namely Sardar Khan, who died on 25.11.1968, was having certain movable and immovable properties at Raipur and village Seoni. The entire properties were owned by him. According to the plaint allegations, the house bearing Municipal House No. 254 to 257 were the properties situated at Raipur and in village Seoni, there were agricultural lands admeasuring 7 acres. Apart from this, there were also movable properties of their father like ornaments of gold & silver (as specified in the plaintiff). The further' allegations are that the houses were under the occupation of the tenants and 50% of the rent was being sent to the plaintiff by the defendant. The cause of action arose when the defendant stopped payment of said portion of rent to the plaintiff. The notices sent by the plaintiff in this regard were also not responded by him. The plaintiff filed the suit for declaration of her title to the extent of 1/3 share, partition and separate possession of suit houses, agricultural lands and movable properties and also for rendition of accounts in relation to the income and earning from tenanted accommodation and agricultural lands and for payment of her share in the said income.

(2.) THE defendant filed his written statement denying the contentions of the plaintiff. About the immovable properties it was specifically pleaded by him vide para 2(a) of the written statement that Sardar Khan gifted his entire immovable properties to him through a written gift deed dated 28.1.1963 and the possession of the same was also handed over to him. Since then he holds the possession of these properties (immovable properties) in his exclusive rights. About movable properties it was pleaded vide para 2(c) that they were also given by oral gift to the defendant by his father and the possession thereof was handed over to him on 28.1.1963. However, he denied about the specifications of the ornaments described in para 2(c) of the plaint.

(3.) LEARNED counsel for the appellant argued that according to para 2(a) of the written statement, the defendant has pleaded that the immovable properties were transferred to him through a gift deed dated 28.1.1963 (Ex. D-2) but this document is not registered, therefore, it cannot be held to be a document of valid transfer. He also argued that vide para 2(c) of the written statement though there are averments about an oral gift, but that gift was also not complete because the defendant himself pleaded that the possession of ornaments etc., were handed over to him 28.1.1963 which was a subsequent date to the date of oral gift, therefore, the defendant could not establish his ownership and possession of the suit properties on the basis of written gift or oral gift as has been pleaded by him. He further submitted that even otherwise also, by evidence, neither the oral gift nor the written document has been proved.