HAFIZABI MIYAJANI Vs. GULAM MOHAMADS DADAMIYA

JUDGEMENT

(1.) THESE two appeals are directed against a common judgment and Order, dated 8-4-1985, passed by the learned IInd additional District Judge, Beed, dismissing Regular Civil Appeal Nos. 133/1982 and 134/1982.

(2.) THE property in dispute in both the appeals is a house property, bearing Municipal House No. 2087 (old No. 1850), situated at Badi Rajgalli, within the limits of Beed Municipal Council (hereinafter referred to as "suit property" ). The suit property originally belonged to Dadamiya, who died in the year 1978, leaving behind him four sons, by name (i) Mohamad Hasham, (ii) Miyajani (iii) Abdul Gafur, and (iv) Gulam mohamad. Mohamad Hasham died long ago and there is no mention of his heirs. Miyajani died in the year 1950, leaving behind him a widow hafisabi and a daughter Khajabegum, the appellants herein. It appears that after the death of Dadamiya and Miyajani, the suit property was transferred in the name of the appellants by the Beed Municipal Council in its records. Gulam Mohamad, the youngest son of Dadamiya, therefore, filed a Suit bearing Regular Civil Suit No. 147/1979 for declaration that the mutation entry, recording the name of the appellants in the Municipal records was illegal, null and void and be set aside and for further order to correct the entries in Municipal records recording the names of the appellants as heirs of Dadamiya to the suit property. The appellants filed a counter suit, bearing Regular Civil Suit No. 366/1980, for declaration that they were the owners of the suit property and for restraining gulam Mohamad from disturbing their peaceful possession of the suit property. Both the Suits were heard together and evidence was recorded in common. By a common Judgment and Order dated 31-7-1982 the learned Joint Civil Judge, Junior Division, Beed, dismissed the Suit filed by the appellants and partly decreed the suit filed by Gulam Mohamad. The learned Civil Judge declared the mutation entry, recording the name of the appellants as owners of the suit property to be illegal, null and void and further ordered that the names of the appellants be removed and the pervious entry of the name of Dadamiya be continued in the records until the heirs of late Dadamiya settle their respective shares in the property. Being aggrieved by the said decision, the appellants filed two separate appeals, bearing Regular Civil Appeal No. 133/1982 and regular Civil Appeal No. 134/1982, in respect of two decrees in the two suits. By a common Judgement and Order, dated 8-4-1985, the learned iind Additional District Judge, Beed dismissed both the appeals. That judgement is impugned in these two appeals.

(3.) DADAMIYA was the owner of the suit property and some other properties. According to the appellants, with a view to avoid any future disputes between his sons Dadamiya, in his life time, separated and divided his properties in the year 1940 or thereabout. In the said separation, dadamiya allotted the suit property to Miyajani exclusively and after miyajani's death the present appellants Hafisabi and Khajabegum, being his widow and daughter respectively, became the absolute owners of the suit property. According to them, the parties being Muslims there was no partition as such, but Dadamiya had made an oral gift (Hiba) of the suit property in order to avoid any future disputes between the sons. The appellants, therefore, contend that they are the absolute owners of the suit property and neither Gulam Mohamad nor any other son of Dadamiya has any share in the suit property. In support of their contention of oral gift (Hiba) of the suit house by Dadamiya to Miyajani the appellants relied upon a registered deed of relinquishment executed in the year 1349 fasli (i. e. 1940 A. D.) A certified copy of the relinquishment deed which is in Urdu language alongwith true English translation thereof is filed at exh -45. According to the learned Counsel for the appellants, this deed has not been properly appreciated and interpreted by the courts below. The learned Counsel further submits that this document clearly shows that the suit property was gifted by means of a 'hiba' to Miyajani by dadamiya in the year 1940.