JUDGMENT
P.S. Narayana, J.
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 Ali 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 the 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 Ors., 1991 (1) ALT 821, Iruvnati Gopinatha Rao v. Vadlapudi Narayana, .
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, .
4. Heard both the Counsel and also perused the oral and documentary evidence available on record and the findings recorded by the Court of first instance and also the Appellate Court.
5. The respondent/plaintiff instituted the suit O.S. No. 577/93 on the file of V Senior Civil Judge, City Civil Court, Hyderabad against the appellants/defendants for declaration that he is the owner of the plaint schedule property and for eviction and also for past and future mesne profits. It was pleaded by the respondent/plaintiff as hereunder:
6. The plaintiff who as Chief Head Warden in Jail Department, Government of A.P., purchased a country tiled house through registered sale deed dated 15-6-1967, got water connection and constructed additional accommodation. Syed Bilal and Syed Sadat are the sons, Mrs. Rizwana Begum, Mrs. Naseem Begum (1st defendant) and Miss. Rehana Begum are the daughters of the plaintiff. The plaintiff performed the marriages of his sons and two daughters except Miss. Rehana Begum who is unmarried. The plaintiff has no other property except the suit schedule property. The plaintiff performed his first daughter’s marriage about 15 years back and performed the marriage of his 2nd daughter about 8 years back and at the time of marriages the plaintiff provided customary articles which are usually given by the parents in Muslim community to the daughters. The plaintiff with his wife and his unmarried daughter were staying in the suit house. The 2nd defendant is the husband of the 1st defendant. Both the defendants after their marriage, were staying in Noor Khan Bazar and subsequently in Malakpet, Hyderabad. In the month of November 1987 on the request of Defendants 1 and 2, since they are in need of residential accommodation, the plaintiff leased out a portion of the suit schedule property on a monthly rent of Rs. 200/- exclusive of water and electricity charges. The defendants who have paid rent upto 31-1-1989 stopped payment and did not pay in spite of repeated demands and notice dated 3-1-1990. It was further pleaded that the plaintiff filed Rent Control Case No. 502/90 on the file of Principal Rent Controller, Hyderabad in which the 2nd defendant denied the tenancy on the ground that the plaintiff is not the owner of the suit schedule house in view of the oral gift made by him in favour of the 1st defendant. He never made gift much less oral gift to his daughters or sons. He is paying taxes and the house is standing in his name. In view of the title dispute, the Court of the Principal Rent Controller, Hyderabad dismissed the R.C. No. 502/90 on 23-11-1992 on the ground that the parties have to approach Civil Court. During the pendency of the Rent Control case, the 1st defendant occupied the remaining portion also. The defendants are liable to pay mesne profits for three years from March, 1990 till the end of February, 1993 at the rate of Rs. 300/- per month.
7. The appellants/defendants resisted the suit by filing written statement in detail admitting the relationship and also ownership, but denying the stand taken by the respondent/plaintiff that they are tenants. It was further pleaded by the appellants/ defendants that the plaintiff who purchased the suit schedule property, gifted the same in favour of the 1st defendant orally on 20-4-1984, the date of celebration of Valima dinner and delivered possession to the 1st defendant who accepted the gift in the presence of the persons who attended the Valima dinner. Since 20-4-1984 the 1st defendant along with her husband and the 2nd defendant are continuously residing in the suit schedule property as absolute owners. The plaintiff also gifted his other properties to his sons and daughters. From 204-1984, the 1st defendant has become the absolute owner and possessor of the suit house. The plaintiff is not at all the owner of the suit house from 20-4-1984. As the 1st defendant is residing in the suit house as absolute owner, the question of paying mesne profits from March 1990 does not arise. The plaintiff filed the present suit for declaration of title, with mala fide intention. As per Muslim law, oral gift is valid and no writing or document is necessary. Since the 2nd defendant did not give partnership in his fruit business, the plaintiff bore grudge and filed the Rent Control Case No. 502/90 with false allegations and after the dismissal of the said Rent Control Case, the plaintiff filed this false suit. The suit is barred by limitation.
8. On the strength of the respective pleadings of the parties, the following Issues were settled by the Court of first instance:
(1) Whether the plaintiff is entitled for the relief of declaration of title of the suit premises as prayed for ?
(2) Whether the plaintiff is entitled for the vacant possession of the suit premises by duly evicting the defendants therefrom?
(3) Whether the plaintiff is entitled for mesne profits as prayed for?
(4) Whether the suit is barred by limitation?
(5) To what relief ?
9. The plaintiff examined himself as P.W.1 and also had examined one Mohd. Ismail as P.W.2 and Exs.A-1 to A-45 were marked. The 1st appellant/1st defendant examined herself as D.W.1 and also examined one Mirza Ahmed Baig as D.W.2. The relationship between the parties is not in dispute. The respondent/plaintiff is none other than the father of the 1st defendant/1st appellant and father-in-law of the 2nd appellant/2nd defendant. The Court of first instance, as already referred to supra, had decreed the suit and aggrieved by the same, A.S.No. 214/2000 on the file of X Additional Chief Judge, City Civil Court, Hyderabad was preferred by the unsuccessful defendants and being unsuccessful there also the present Second Appeal had been preferred.
10. Ex.A-1 is the sale document; Ex.A-2 is the property assessment letter; Ex.A-3 is the letter in Urdu from H.E.H. Nizam with English translation; Ex.A-4 is the agreement of sale; Ex.A-5 is the receipt; Ex.A- 6 is the registered sale deed; Ex.A-7 is, the notice; Exs.A-8, 9 and 12 are property tax receipts. Exs.A-10, A-11 and A-13 to A-45 are property assessment notice, demand notice, disconnection notice, water bills, postal receipts, acknowledgments, sanctioned plan, water cist receipt, electricity pass book, certified copy of order in R.C.No. 502/90, and other documents. The stand taken by the appellants/defendants is that there was oral gift on 20-4-1984 on the day of celebration of Valima dinner and this defence was negatived. The two substantial questions of law which had been canvassed at length by the learned Counsel for the appellants are as hereunder:
(1) Whether the Appellate Court had complied with the mandatory requirements of Order 41 Rule 31 C.P.C.?
(2) Whether Article 58 or Article 65 of the Limitation Act, 1963 is applicable to the facts of the case?
No doubt, apart from these questions, the learned Counsel also made an attempt to point out to certain factual aspects on the ground that the findings recorded by both the Courts below cannot be sustained. The Appellate Court at paragraph 9 had recorded the Point as hereunder:
“Whether the plaintiff/respondent is entitled to evict the defendants/appellants from the suit property and also to recover mesne profits from them?”
It is no doubt true that the point for consideration is not happily worded. But however, while deciding this requirement, the appreciation of evidence and the findings recorded by the Appellate Court also may have to be taken into consideration. No doubt, strong reliance was placed on the decisions Midakanti Nagabhushana Reddy v. Midakanti Yellaiah and Ors. and Iruvnati Gopinatha Rao v. Vadlapudi Narayana referred (supra). As already referred to supra, though the Point framed at para 9 by the appellate Court is not happily worded, in my considered opinion, in substance, the requirement of Order 41 Rule 31 C.P.C. had been complied with for the, reason that the Appellate Court had well discussed all the aspects at paras 10, 11, 12 and 13 of the judgment. While deciding this aspect, the Court may have to consider in the light of the object and intent of the provision whether the appellate Court had taken all the aspects into consideration while arriving at a particular conclusion and while recording necessary findings relating thereto. If the Court is satisfied that the findings recorded or the judgment and decree do not otherwise suffer from any other legal infirmity, this question may not assume prime importance.
11. It is not in dispute that the respondent/plaintiff purchased the plaint schedule property and he had taken a stand that the appellants/defendants had taken a portion of the plaint schedule house from the month of November 1987 on a monthly rent of Rs. 200/- and during the pendency of the rent control proceedings, they had occupied the remaining portion of the house. No doubt, the appellants/defendants had taken a stand that there was an oral gift made in favour of the 1st appellant/1st defendant, daughter, on 20-4-1984, the date of Valima dinner. Apart from D.W.1, D.W.2 was examined to prove this aspect. In MD. Usman v. MD. Anwar Baig, , while dealing with the essential conditions necessary to effect Hiba – gift, under Mohammedan Law, it was held:
“Under Mohammedan Law three essential conditions are necessary for the gift to take effect; (1) a declaration of the gift by the donor; (2) acceptance of the gift, express or implied by or on behalf of the donee; and (3) delivering of possession of the subject of gift by the donor to the donee, and that if these conditions are satisfied, the gift will be complete. Taking possession of the subject-matter of the gift by the donee either actually or constructively is necessary but where physical delivery of possession is not possible such possession as to property admits of, may be delivered. In other words the donor must divest himself of his possession to complete the gift.”
In Ziauddin Ahmed v. M.A. Raof, it was held:
“The Gift need not necessarily be in writing as per the principles of Mohammedan law. Section 147 of the Principles of Mohammedan Law by Mulla, 19th Ed., envisages that writing is not essential to the validity of a gift either of movable or of immovable property. Section 148 requires that it is essential, to the validity of a gift, that the donor should divest himself completely of all ownership and dominion over the subject of the gift. Under Section 149, three essentials to the validity of the gift should be, (i) a declaration of gift by the donor (ii) acceptance/of the gift, express or implied, by or on behalf of the donee, and (iii) delivery of possession of the subject of the gift by the donor to the donee as mentioned in Section 150. If these conditions are complied with, the gift is complete. Section 150 specifically mentions that for a valid gift there should be delivery of possession of the subject of the gift and taking of the possession of the gift by the donee, actually or constructively. Then only gift is complete. Section 152 envisages that, a gift of immovable property of which the donor is in actual possession is not complete unless the donor physically departs from the premises with all his goods and chattels, and the donee formally enters into possession.”
In Mahboob v. Syed Ismail, AIR 1955 SC 1205, the Apex Court held:
“Though gift by a Mohammedan is not required to be in writing and consequently need not be registered under the Registration Act, a gift to be complete, there should be a declaration of the gift; by the donor; acceptance of the gift, expressed or implied by or on behalf of the donee; and delivery of possession of the property, the subject-matter of the gift by the donor to the donee. The donee should take delivery of possession of that property either actually or constructively. On proof of these essential conditions, the gift becomes complete and valid. In case of immovable property in the possession of the donor, he should completely it was held divest himself physically of the subject of the gift.”
In Moqbool Alam v. Khodaija, , it was observed by the Apex Court:
“Three pillars of a valid gift under the Mohammedan law are declaration, acceptance and delivery of possession. There can be a valid gift of property in the possession of lease or a mortgagor and a gift may be sufficiently made by delivering constructive possession of a property to the donee. Some authorities still take the view that a property in the possession of a usurper cannot be given away, but this view appears to be too rigid. The donor may lawfully make a gift of a property in the possession of a trespasser. Such a gift is valid provided the donor either obtains and gives possession of the property to the donee or does all that he can to put it within the power of the donee to obtain possession……. But a gift of a property in the possession of a trespasser is not established by mere declaration of donor and by acceptance of the donee. To validate the gift there must also be either delivery of possession, or failing such delivery some overt act by the donor to put it within the power of the donee to obtain possession. If apart from making a declaration, the donor does nothing else the gift is invalid.”
12. It is needless to say that the burden of proving the oral gift is on the appellants/ defendants. The stand taken in the written statement and also the evidence of D.W.2 apart from the evidence of D.W.1 was well considered in detail by both the Courts and a finding had been recorded that the plea of oral gift pleaded by the appellants/ defendants had not been established. This is a question of fact and concurrent findings had been recorded by both the Courts below on a question of fact which needs no disturbance in the present second Appeal, especially in the absence of any perversity in the findings recorded in this regard. Hence, the said finding is hereby affirmed.
13. The suit is filed for declaration, eviction and mesne profits. It is pertinent to note that the alleged oral gift was on 20-4-1984 and the suit was instituted on 5-3-1993 which is within the period of 12 years even from the date of the alleged oral gift and delivery of possession. As can be seen from Ex.A-40, certified copy of order in R.C.No. 502/90, dated 23-11-1992, which is not in dispute, the Principal Rent Controller had dismissed the case on the ground that there is a dispute relating to title which should be resolved by the competent Civil Court. It is also pertinent to note that the case set up by the respondent/ plaintiff is permissive possession and the close relationship between the parties also may have to be taken into consideration in this regard. Hence, the plea of limitation raised by the appellants/defendants cannot be sustained.
14. Article 65 of the Limitation Act, 1963, reads as hereunder:
Description of Suits Period of Time from which the
limitation period begins to run
For possession of immovable Twelve When the possession
property or any interest years of the defendant
therein based on title becomes adverse
to plaintiff
Explanation :--For the purposes of this article--
(a) Where the suit is by a remainderman, a reversioner (other than a landlord) or adivasee, the possession of the defendant shall be deemed to become adverse only when the estate of the remainderman, reversioner or adivasee, as the case may be, falls into possession;
(b) Where the suit is by a Hindu or Muslim entitled to the possession of immovable property on the death of a Hindu or Muslim female, the possession of the defendant shall be deemed to become adverse only when the female dies;
(c) Where the suit is by a purchaser at a sale in execution of a decree when the judgment debtor was out of possession at the date of the sale, the purchaser shall be deemed to be a representative of the judgment debtor who was out of possession.
Likewise, Article 58 of the Limitation Act, 1963 reads as hereunder:
Description of Suits Period of Time from which the
limitation period begins to run
To obtain any other Three When the right to
declaration years sue first accrues
15. When a suit is based on title and the relief of declaration and recovery of possession apart from other reliefs had been prayed for, the period of limitation is 12 years and not 3 years since Article 65 of the Limitation Act, 1963 is applicable and not Article 58. In the decision Pavan Kumar v. K. Gopalakrishna referred (supra), the Division Bench of this Court had observed:
“The suit is essentially and primarily a suit for possession based on title. The mere fad that the declaration of title is also sought for therein does not bring it within Article 58 or 113 so as to attract three years period of limitation. There is practically no controversy as to title for the simple reason that the defendants recognize the plaintiff as the predecessor-in-title.”
The Division Bench held that where a suit is for possession, Article 65 of the Limitation Act; 1963 applies and the mere fact that the plaintiff is also seeking declaration does not take the suit out of purview of Article 65 of the Limitation Act, 1963 and bring it within Article 58 or Article 113 of the Limitation Act, 1963. In view of this position and in the light of the facts which are not in controversy, the suit instituted by the respondent/plaintiff is perfectly within limitation. Hence, viewed from any angle, the appellants/defendants had miserably failed to establish to substantiate their stand relating to oral gift and consequently the respondent/ plaintiff is bound to succeed and both the Courts on appreciation of both oral and documentary evidence had recorded clear, categorical and concurrent findings which need not be disturbed in the present Second Appeal. Hence, viewed from any angle, the Second Appeal is devoid of merits and accordingly the same shall stand dismissed. The appellants/defendants are granted a month’s time to vacate the premises. In view of the close relationship between the parties, this Court makes no order as to costs.