GULAM MOHMAD KHAN Vs. GULAM NABI CHANNU MIYA

JUDGEMENT

(1.) This Second Appeal is filed by the original plaintiff who lost in the First Appellate Court since the First Appellate Court set aside the decree passed by the trial Court. The parties herein after are referred to as plaintiff and defendant.

(2.) The facts giving rise to the appeal are as follows: Plaintiffs are sons and daughter of one Hakimmiya son of Rasulkhan who died in the year 1931. Hakimmiya's father Rasulkhan was the original owner of the suit property and he died in the year 1917 leaving behind him a widow, three sons and a daughter. Few years after the death of Rasulkhan his widow died and the property came into the hands of three sons and daughter namely Sahebkhan, Hakimkhan, Ahamad khan and Munirbi. The three sons inherited 28.56 Ps. Share in the entire property of Rasulkhan while Munirbi inherited 14.28 Ps. Share. Three sons of Rasulkhan were joint in estate but separate in mess. They were therefore occupying separate portion of the property. Youngest son Ahamad died in 1928. Two years thereafter Hakimmiya died. Thereafter in the year 1946 Sahebkhan, Munirbi and heirs of Hakimmiya and Ahamad decided to effect the partition of the property of Rasulkhan. A Panchayat was therefore called to effect amicable settlement between the parties. Accordingly a partition took place. A settlement was arrived at which was reduced into writing on 25.08.1946. It was decided that 2/7th share would go to the sons and heirs of the son of Rasulkhan and 1/7th would go to Munirbi. On 25.08.1946 Sahebkhan in presence of panchas declared that out of love and affection he was gifting his property to plaintiff No. 1. Accordingly plaintiff No. 1 became owner of property of Sahebkhan. It is also the contention of plaintiffs that on the same day Rabiyabi and Bibi daughters of Ahamadkhan also orally gifted their share in the suit property in favour of their brother Abdul Rehman Khan. Thus Abdul Rehman became the owner of the entire 2/7th share of Ahamadkhan. He sold his entire 2/7th share to plaintiff No. 1 on 19.05.1973 by registered sale deed. Similarly Muneerbi also sold her 1/7th share in the property to plaintiff No. 1 on 05.10.1974. Thus it is the contention of the plaintiffs that plaintiff No. 1 became the absolute owner of 5/7th share in the suit property apart from 2/7th share which he inherited from his father. The said settlement arrived at between the parties was even signed by Channumiya son of Nannumiya. However thereafter Channumiya left along with his family for Hyderabad. After Hyderabad merged into Union of India Channumiya came back to Nagpur and requested the plaintiff to allow him to reside in the portion of the house. He agreed to pay Rs. 6/- as rent and thus Chunnumiya started occupying the portion of the suit house as a tenant. Plaintiffs called upon Chunnumiya to pay the rent. Channumiya and his heirs instead of paying rent raised a contention that suit property belonged to them, the same having been gifted to them by Sahebkhan before migrating to Pakistan. Thus the defendants asserted title in themselves and denied the plaintiffs status as land lord. Since the relationship of land lord and tenant was denied the plaintiffs instituted this suit in the civil Court without obtaining the requisite permission from the Rent Controller under the C.P. & Berar Rent Control Order.

(3.) Defendants filed their Written Statement and resisted the claim of the plaintiff. They denied all allegations made by the plaintiffs. Their contention is that the suit property belonged to Sahebkhan who had gifted the same to the defendants under a oral gift deed. They contend that they are therefore the owners of the suit property and they are occupying the same in their own right. Further they contend that the suit without obtaining permission of the Rent Controller was not maintainable.