SYED MUSTAN Vs. SYED MUBARAK

JUDGEMENT

(1.) THE defendants in O.S. No.419 of 1981 on the file of the District Munsif Court, Nagapattinam, are the appellants in the above second appeal. THE respondent herein filed the suit for declaration of his title to the suit property and for a direction to the defendants to remove the superstructure put up by them on the land and deliver vacant possession of the land and for mesne profits for the immediate past three years.

(2.) THE case of the plaintiff was that the first defendant was his brother and the second defendant was the first defendant's wife, that the plaintiff and the first defendant are the brothers and the sons of Syed Mohammed, that the property originally belonged to the grandfather Hammed Sultan, who settled the same in favour of the plaintiff's father Syed Mohammed under a registered settlement deed dated 3.7.1968 and subsequently, under a settlement deed dated 23.3.1972 an extent of 42 cents in R.S. No.69/1 and his share in the house came to be settled in favour of the plaintiff out of love and affection, and that the said deed of settlement was duly registered and therefore, the plaintiff is the owner of the property. It is the further case of the plaintiff that the first defendant's brother used to often go to Singapore on business purposes and he requested in the end of 1969 the plaintiff to provide a small portion of suit property for temporarily putting up a small shed for his residence undertaking to vacate and though in an extent of about 3 cents such superstructure was put up, wherein the first defendant and the second defendant (first defendant's wife) were living, the defendants have not made any arrangement to remove the superstructure and deliver vacant possession. Since the defendants started denying thereafter the right of the plaintiff, after exchange of notices, the suit come to be filed for the relief referred to supra.

(3.) IN Johara Bibi v. Subera Bibi, (1964)2 M.L.J. 237), Veeraswami, J. as the learned Judge then was, held that when a donor makes a statement in the gift deed that he or she was in possession and put the donee in possession, that is an admission of the donor of the fact of delivery of possession to the donee, and the admission is not an irrebuttable or conclusive one on the question of delivery of possession and the real effect of the recital is only that the person who contends to the contrary, namely that no possession was delivered, should establish the contention.