GULAM JILANI Vs. FATIMABAI

JUDGEMENT

(1.) PLAINTIFF /appellant feeling aggrieved by the judgment and decree dated 16.2.2005 passed by XVIII Additional District Judge (Fast Track), Indore in Civil Suit N0.16-A/2003 has preferred this appeal under Section 96 of the Code of Civil Procedure, 1908.

(2.) THE facts in brief are that deceased Mohd. Sahab executed a registered gift deed (Bakshish Patra) dated 13.4.1964 with respect to house No.23, Stree No.2, Kadavghat, Indore bearing Municipal Number 23/3. In the said deed the house was given on gift to plaintiff, defendant No. 2 Gulam Rabbani and defendant No.3 Gafuran Bai. The said deed of gift was irrevocable. At the time of execution of the document, the plaintiff was of one year and four months. The possession was also delivered at the relevant point of time. In the knowledge of the plaintiff, various tenants are residing in the said house and are in possession. The defendant No.1 Fatimabai (since deceased) was recovering the rent from them and had born all the expenses of plaintiff including education. It is said that the plaintiff has attained the age of majority in 1981. In 1984 he got married and thereafter in the year 1987 when defendant No.2 and 3 have denied the permission to reside with him, 1/3rd share in the said house as per gift deed was claimed from defendant No.1 by the plaintiff. On making demand of the disputed house, the defendant No.1 has not delivered the possession and became annoyed and started taking action to alienate it, however the plaintiff has filed a suit for partition and delivery of possession.

(3.) THE defendants No. 1 to 4 has filed a joint written statement and defendants No.2 and 3 have filed different written statement. In both the written statement the plaint allegations have been denied. The defendants No.1 to 4 have stated that no such gift deed dated 13.4.1964 has been executed by Mohd. Sahab. The date of birth of the plaintiff has also been disputed. The cancellation of the gift deed document of defendants No.2 and 3 has been accepted as valid and defendant No.1 is not the valid guardian of plaintiff, it is the defendants No.2 and 3. It is said that Mohd. Sahab has partitioned the disputed house in four shares. Three shares were delivered to sons and daughters and one is the wife. Thereafter the defendant No.1 after having valuation and partition settled the property with defendants No.2 and 3 and accordingly the deed was executed on 11.5.1967. It is also said that the part of the house falls in House No.14/2 and part thereof in House No.32/3. It is said that Fatima Bai is not receiving any rent for plaintiff, in fact, it was recovered by virtue of her independent right. The defendant No.1 do not want to execute any sale deed of the said house and it has been given by way of gift deed dated 31.10.1995 to defendant No.4. It is also said that the suit has not been filed within the period of limitation valuing the same properly and before the competent court, therefore it is liable to be rejected.