AHMED IBRAHIM Vs. N. M. K. SYED MOHIDEEN

JUDGEMENT

(1.) THE plaintiff is the appellant. He filed a suit in O.S. No. 224 of 1966 on the file of the District Munsif's Court of Ramanathapuram declaration and possession. The suit property measures 20 feet east to west and 24 feet south to north in Ward No. 1 of Keelakarai Panchayat and a hut bearing Door No. 204 -A standing thereon. There was also a prayer for injunction.

(2.) THE property originally belonged to one Nadar Ammal. She made an oral gift of the entire property to her daughter Syed Ali Bathummal. She had another daughter by name Yusuf Sulaike, and son by name Seeni Mohamed. Seer Mohammed married Mohammed Ameena Ummal. After the death of Syed Ali Bathummal, a half share of the property devolved upon her daughter Mohamed Aisha and the dispute in this second appeal relates only to this half share. Consequent to this devolution Aisha sold the property in favour of the predecessor -in -interest of the plaintiff. Mohammed, Ameena Ummal filed O.S. No. 1 of 1946 against Seeni Mohammed, her husband. That resulted in a decree. Thereupon in execution of the decree, the defendant purchased 2/3rds of the suit property in Court auction. Sulaika, the other daughter preferred a claim petition under Order 21, Rule 90, Code of Civil Procedure and her claim was allowed and thus the matter reached a finality as far as O.S. No. 1 of 1946 was concerned. However, Aisha also filed a claim concerning her half share which was negatived. Thereupon she preferred O.S. No. 402 of 1950 on the first of September, 1950, to set aside the dismissal of her claim. In that suit she entered into a compromise with Ameena Ummal. It may be noted here that neither Seeni Mohammed, the judgment -debtor, nor the auction purchaser Mohammed Kassim, the first defendant, who died pending suit (whose L.Rs. have been brought on record) was made a party to this compromise. The plaintiff, con - tending that neither the judgment -debtor nor the auction -purchaser is a necessary party to the claim suit preferred the present suit and also contended that his title ought to be upheld in view of the oral gift. In defence it was pleaded that in far as neither the decree -holder nor the auction -purchaser who purchased 2/3rds of the suit property in execution of O.S. No. 1 of 1946 had been impleaded in the suit, any compromise between Mohamed Ameena Ummal and Aisha, the predecessor -in -title of the plaintiff, would not be binding. Factually there was no oral gift and therefore the plaintiff could not base his title on the strength of the so -called oral gift. The learned District Munsif, before whom the matter came up for trial, on a consideration of oral and documentary evidence decreed the suit whereupon the defendants filed A. S. No. 90 of 1970 and the learned Subordinate Judge reversed the findings of the trial Court and dismissed the suit. Hence the present second appeal.

(3.) IT is his further submission that on evidence it has been found by the Lower Appellate Court that there was no valid oral gift and as such no interference is called for on this point.