MOHAMMAD AKHTAR ALI Vs. BADRUDIN

JUDGEMENT

(1.) Bibi Aisha, owner of holding No. 1285 (new holding No. 1728) within Ranchi Municipality obtained an order of eviction against Pardeshi Wali Mohammad from the court of Controller at Ranchi. Under Section 18 (as then it was) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, (Act 3 of 1947), that order could be executed as a decree by a Civil Court having jurisdiction over the matter, Hence, Bibi Aisha filed a petition in the Court of Munsif at Ranchi for execution of the said order. Before the disposal of that petition, Bibi Aisha died in 1963. Her two sons and two daughters, who arc respondents in this appeal, and her husband, Juman Mian, got themselves substituted in place of Bibi Aisha as decree-holder. In 1967 Juman Mian too died. On 3rd of October, 1969, when the petition of the respondents for delivery of possession was pending, appellant Akhtar Ali, son of Afzal, a brother of Juman Mian, also filed a petition. His case was that Bibi Aisha had made an oral gift of the said house to him in the year 1962 and the tenant had put him in possession over it. Thus, according to him, the decree stood satisfied and there was nothing to be executed.

(2.) According to the children of Bibi Aisha, i.e., the respondents, neither their mother made an oral gift of the house to the appellant, nor the tenant delivered possession of it to him. Therefore there was no substance in the petition of the appellant and it was fit for dismissal.

(3.) The executing court held that the petition of the appellant was maintainable under Section 47 of the Code of Civil Procedure (hereinafter referred to as 'the Code' in this Judgment) and Bibi Aisha did make an oral gift of the house to the appellant. The lower appellate court held that the application was not maintainable under Section 47 of the Code and Bibi Aisha did not make an oral gift of the house to the appellant. Hence, it dismissed the petition. The appeal is directed against the aforesaid order of the lower appellate court.