NASEEM BEGUM Vs. S M KALEEM

JUDGEMENT

(1.) The unsuccessful defendants in both the Courts below are the appellants and the respondent in the present Second Appeal is the plaintiff. The respondent/plaintiff instituted a suit O.S.No.577/93 on the file of V Senior Civil Judge, City Civil Court, Hyderabad for declaration that he is the absolute owner of plaint schedule property and to evict the appellants/defendants and to deliver vacant possession of the suit schedule house, for past and future mesne profits and costs of the suit. The said suit was resisted by the appellants/defendants by filing a written statement in detail and on the strength of the respective pleadings of the parties, after settlement of Issues, the Court of first instance had recorded the evidence of P.W.1 and P.W.2 and D.W.1 and D.W.2 and had marked Exs.A-1 to A-45 and after recording the appropriate findings ultimately had decreed the suit. The defendants, aggrieved by the same, had preferred A.S.No.214/2000 on the file of X Additional Chief Judge, City Civil Court, Hyderabad and the appellate Court after recording the findings had ultimately dismissed the Appeal, with costs, and aggrieved by the same, the appellants/ defendants had preferred the present Second Appeal.

(2.) Sri Basith AM Yavar, the learned Counsel representing the appellants/ defendants made the following submissions. The learned Counsel pointed out that the respondent/plaintiff had not proved his title and it is not dispute that the appellants are in possession of the plaint schedule property and hence the burden is on the respondent/ plaintiff to establish his title. The learned Counsel also would maintain that the relationship between the parties is not in dispute and in view of the clear evidence available on record the courts below had totally erred in recording a finding negativing the stand taken by the appellants/ defendants relating to the gift made by the respondent/plaintiff. The learned Counsel also had explained the essentials of gift under Mohammedan Law and had pointed out to the findings recorded by both the courts below in this regard. The learned Counsel also had advanced a contention that in a case of this nature, Article 58 of the Limitation Act 1963 alone is applicable and not Article 65 of the Limitation Act, 1963 and though this question was raised, the appellate Court had not considered this aspect. The learned Counsel also had further pointed out that at any rate the appellate court had not framed te Points for consideration in accordance with Order 41 Rule 31 C.P.C. and in this view of the matter also, the Judgment and decree of the appellate Court are vitiated. The learned counsel had placed reliance on Midakanti Nagabhushana Reddy v. Midakanti Yellaiah and others, Iruvnati Gopinatha Rao v. Vadtapudi Narayana2.

(3.) Per contra, Sri Vilas Afzulpurkar, the learned Counsel representing the respondent/plaintiff had submitted that concurrent findings had been recorded by both the courts below disbelieving the stand of the appellants relating to the gift made by the respondent/plaintiff, the father to the daughter, and these findings are well considered findings based on appreciation of both oral and documentary evidence and these aspects being questions of fact, cannot be disturbed in the present Second Appeal. The learned Counsel also further submitted that in the facts and circumstances of the case, Article 65 of the Limitation Act 1963 alone is applicable and not Article 58 and at any rate in view of the clear findings recorded by the court of first instance, the respondent/plaintiff cannot be non-suited on the question of limitation. Reliance had been placed on Pavan Kumar v. K. Gopalakrishna.