Civil Suit No. 12 of 2009 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. No.416 of 2017 In the matter of an Appeal under Section 100 of the Code of Civil Procedure assailing the judgment and decree dated 19.08.2017 & 31.08.2017 respectively passed by the learned Additional District Judge, Champua in R.F.A. No.13 of 2014 setting aside the judgment and decree dated 25.08.2014 & 11.09.2014 respectively passed by the learned Civil Judge (Senior Division), Champua in Civil Suit No.12 of 2009. ---- Md. Mustaque Ahmed …. Appellant -versus- Md. Jamal Akhtar (Since Dead) by his LRs. & Others …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr. S. P. Mishra, Sr. Advocate Mr.S.Mishra, L.K.Maharana, N. Sharma. A.Mohanta and E.Agarwal For Respondents - Mr. Sidheswar Rath and Md.A.Alam (Advocate for R.1) CORAM: MR. JUSTICE D.DASH DATE OF HEARING :26.09.2023::DATE OF JUDGMENT:09.10.2023 D.Dash,J. The Appellant, by filing this Appeal, under Section 100 of Code of Civil Procedure, 1908 (for short, ‘the Code’), has assailed the R.S.A. No.416 of 2017 Page 1 of 13 {{ 2 }} judgment and decree dated 19.08.2017 & 31.08.2017 respectively passed by the learned Additional District Judge, Champua in R.F.A. No.13 of 2014.
Facts
The present Appellant, as the Plaintiff, had filed Civil Suit No.12 of 2009 in the Court of Civil Judge, Senior Division, Champua for declaration of his right, title, interest over the suit land and confirmation of the possession over the same with the alternative prayer of recovery of possession if found to have been dispossessed and further prayer of permanent injunction restraining the original Defendant No.1 Abdul Hadi and original Defendant No.2 in the suit from interfering with the peaceful possession of the Appellant (Plaintiff) over the suit land. At this place, it be stated that original Defendant No.1 Abdul Hadi having died during pendency of the suit, his legal representatives had been brought on record and they are the Respondent No.1(a) to 1(f). Similarly, original Defendant No.2, being dead, his legal representatives are on record as Respondent No.8(a) to 8 (h). 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the suit. 3. The Plaintiff and the Defendants are the sons and daughters of late Md. Siddique. He died on 24.07.1992. Md. Siddique was the full Page 2 of 13 R.S.A. No.416 of 2017 {{ 3 }} owner of the properties which form the subject matter of the suit as well as other properties situated at Champua and Jayantigarh. Md. Siddique during his life time had made a settlement concerning his land by way of ‘Hiba’ (Gift) on 11.02.1988 without receiving any consideration from his sons and daughters and pursuant to the same, he had delivered the possession of the properties to the Plaintiff and on that day, he had executed a deed of settlement by way (Hiba) of the properties including the suit land. It is said that the Hiba (gift) in respect of the suit land was complete and the Plaintiff is in possession of the same since then. He thus claims to be the absolute owner of the suit properties on or from 11.02.1988 as the donee having got those under the Hiba (Gift) made by Md. Siddique, the donor. It is stated that the Defendant No.3 and 4 have got the properties by settlement at that mouja Champua and other Defendants did not get the properties at Champua and they do not posses the properties of Md. Siddique at Champua. Basing on the settlement by way of ‘Hiba’ (Gift), Md. Siddique, the Plaintiff and Defendant No.3 & 4 applied before the Tahasildar, Champua for mutation of the respective land. The Tahasildar initiated Misc. Case No.11 of 2017 under section 19(1) (C) of the Odisha Land Reforms Act ( for short, ‘OLR Act’) and passed order for recording of the lands separately in the name of Plaintiff as well as Defendant No.3 and 4. Sometime, thereafter the Defendant No.1 and 2 had filed an R.S.A. No.416 of 2017 Page 3 of 13 {{ 4 }} application before the Tahasildar, to include their names as the heirs of Md. Siddique and cancel the RORs separately issued in favour of the Plaintiff as well as the Defendant No.4. The Tahasildar receiving such application reviewed and annulled his earlier order which is said to be void being contrary to the ‘Hiba’ (gift) made by Md. Siddique on 11.02.1988. The Defendant No.1 and 2 thereafter when threatened the Plaintiff to evict him from the suit land, the suit came to be filed. 4. The Defendant No.3 & 4 supported the case of the Plaintiff in their written statement. The Defendant No.5 and 6 in their written statement besides raising many technical objections, have averred that Md. Siddique was the owner of the properties under Khata No.355 of Champua as also the other landed properties in village Jayantigarh in the district of West Singhbhum in the State of Jharkhand. Their case is that Md. Siddique did not execute any Hiba (Gift) on 11.02.1988 nor he made the delivery of possession of the suit land in favour of the Plaintiff pursuant to that Hiba (gift). The Plaintiff and Defendant No.3 & 4 are said to have manufactured these documents by obtaining he signature of Md. Siddique and accordingly had applied for mutation which they had initially got done but later on cancelled being all such details, pointed out. R.S.A. No.416 of 2017 Page 4 of 13 {{ 5 }} 5. The Defendant No.1 & 2 in their written statement also stated that there was no such Hiba (gift) by Md. Siddique nor he had given the delivery of possession of the suit land. They stated that there has been no partition of the properties of Md. Siddique and all his properties in Champua as well as Jayantigarh are still joint although his legal heirs are possessing as per convenience. It is stated that the settlement of the family land by way of Hiba (Gift) is not known to Muslim Law and Muslim Law does not recognize the family settlement by way of Hiba (Gift). It is stated that the Plaintiff and Defendant No.3 & 4 had fraudulently suppressed the material facts and managed to obtain the record of right which was later on being rightly anulled. They questioned that the document (Ext.6) which is most relied upon by the Plaintiff and Defendant No.3 and 4 as not a Hibanama (Deed of Gift) and this not to be recognized and given effect to, as such. 6. On the above rival pleadings, the Trial Court framed as many as nine (9) issues. The most important issue concerning the acceptability of the claim of the Plaintiff that Md. Siddique had made the Hiba (Gift) and executed the Hibanama (Deed of Gift-Ext.6) had been answered by the Trial Court in favour of the Plaintiff upholding the HIba (Gift), the Hibanama (Deed of Gift-Ext.6) made by Md. Siddique and it held the Plaintiff to be the owner in possession of the R.S.A. No.416 of 2017 Page 5 of 13 {{ 6 }} suit land being the done upon acceptance of the Hiba (Gift) at his end. Practically, all other findings accordingly flowed from there. 7. The aggrieved Defendant No.1(a) to 1(h), 2, 5 and 6 having carried an Appeal under section 96 of the Code, the First Appellate Court has arrived at a conclusion that Md. Siddique had not made any Hiba (Gift) of the suit land to the Plaintiff and the document which is said to be the Hibanama (Deed of Gift-Ext.6) is recognizable as such to be so accepted and given effect to. Thus the claim of the Plaintiff over the suit land to the exclusion of all others, founded upon that Hiba (Gift) of Md. Siddique as pleaded and the document proved in support i.e. Hibanama (Deed of Gift-Ext.6) has seen bulldozed from the arena of consideration. The Plaintiffs thus being non-suited by the First Appellate Court, is now before this Court in Second Appeal. 8. The Appeal has been admitted to answer the following substantial questions of law. “Whether the learned lower Appellate Court has erred in law by ignoring Hibanama which is admissible and proved as per Mahomedan Law?”
Legal Reasoning
14. The position of law is undisputed that Hiba (Gift) may be made orally or writing and the donor may declare the gift of any kind of property. In the instant case, in so far as the Plaintiff’s claim/case is concerned; Clause-3 as above is involved. The very document at the beginning envisages the reason for bringing out this document by Md. Siddique. Even though, we accept for a moment that it was so done by him, it clearly appears to make division/distribution of all his properties i.e. the house sites and agricultural lands amongst his children. In fact that is the opening words of the document. So the very object set forth thereunder to be fulfilled under this document if we accept its due execution is to make division/distribution of the property amongst those who might have come to succeed to those properties in due course of time. Dividing the properties amongst the children cannot be equated to gifting away of the property to them in so far as the respective property allotted to them as per the said division. R.S.A. No.416 of 2017 Page 10 of 13 {{ 11 }} That apart, in one transaction of Hiba (Gift), so many persons standing as the donees in my considered view is not only impermissible but also highly unbelievable and unworkable and then the controversy arising therefrom has to be judged separately and it may so happen that some may fall and some succeed and in that event to accept the transaction as one or more, one would fumble like anything. The document being read in entirety does not reveal that pursuant to the same, the property especially, the suit property had come to the hands of the Plaintiff exclusively and to the exclusion of others since there is no indication as to the delivery of possession of all those properties which is the mandate of Mahomedan Law law that the gift is complete only after the delivery of possession and it takes effect from the date of possession of the property delivered the done and not from that day on which the declaration was made. That apart, there is specification of the property given to the Plaintiff, Defendant No.3 and Defendant No.4 and it is written that all the three would get the property in question. That is the reason all the three had filed an application under Section 19(c)(e) of the OLR Act to amicably partition and record which conduct clearly negates the case of Gift by delivery of possession. Simply proving that the Plaintiff is in possession of the said property in view of the relationship between the parties, would not be enough to conclude that it was pursuant to the Hiba (Gift). It has to be specifically proved that pursuant to this R.S.A. No.416 of 2017 Page 11 of 13 {{ 12 }} Hiba (Gift) and execution of this Hibanama (Deed of Gift-Ext.6) by Md. Siddique as the donor, he had delivered the possession of the property in suit to the Plaintiff who physically possessed the property from that particular day, shunning his previous character as the son of the Donor but coming from that day as the donee to possess to the exclusion of all others as the absolute owner. Therefore, mere possession of the property in suit by the Plaintiff is of no significance without proof of the factum of delivery of physical possession by the donor to the donee; here by Md. Siddique to the Plaintiff. The Plaintiff has not proved any such contemporaneous document prepared shortly after the so called Hiba (Gift) made by Md. Siddique to come to a conclusion that said Hiba (Gift) of his suit property in his favour was immediately given effect to, and rather, it is seen that the Plaintiff and Defendant No.3 & 4 have woken up from slumber after more than 17 years in making a move for mutation when as per their claim of being got it by Hiba (Gift), they had all the opportunity to move for correction of the record on that very day and onwards. Thus this Court finds that the First Appellate Court has very rightly rectified the error both on facts and law committed by the Trial Court. Therefore, the decision rendered by the First Appellate Court in non-suiting the Plaintiff must receive the seal of approval. R.S.A. No.416 of 2017 Page 12 of 13 {{ 13 }} 15. The substantial questions of law being accordingly answered, it is held that this Appeal is liable to be dismissed. 16. Resultantly, the Appeal stands dismissed. There shall be however no order as to cost. (D. Dash), Judge. Gitanjali Signature Not Verified Digitally Signed Signed by: GITANJALI NAYAK Reason: Authentication Location: OHC Date: 18-Oct-2023 10:43:14 R.S.A. No.416 of 2017 Page 13 of 13
Arguments
9. Mr. S. P. Mishra, learned Senior Counsel for the Appellant submitted that the First Appellate Court has completely gone wrong in refusing to accept he claim of the Plaintiff based on the Hiba (Gift) made by Md. Siddique and evidence of the execution of the Page 6 of 13 R.S.A. No.416 of 2017 {{ 7 }} document i.e. Hibanama (Deed of Gift) on 11.02.1988 which has been admitted in evidence and marked Ext.6. He submitted that the approach of the First Appellate Court in judging the real controversy as to whether the said document would be treated as Hibanama (Deed of Gift-Ext.6) or not is completely erroneous. It was submitted that one of the basis for the First Appellate Court to negate the Hiba (Gift) is the delayed application for mutation of the suit land on the strength of that Hiba (Gift) in carrying a reason therefrom that there was no delivery of possession which according to him, is wholly untenable and according to him, the other round rather sounds more probable and being in possession and enjoyment, there was no immediate necessity for mutation when there was also no threat/infringement to such right of the Plaintiff over the suit land and on the face of the evidence of P.W.2 as well as other contemporaneous documents which have been proved vide Ext.3 (amin report) and Ext.5 series (rent receipts). He further submitted that when execution of Hibanama (Deed of Gift) is not in dispute, as the Defendants have claimed that Hiba (Deed of Gift) was obtained by practicing fraud; the Defendants having failed to plead and prove all such details of fraud practised upon Md. Siddique (donor), the First Appellate Court ought not to have disturbed the decision rendered in the suit as the contesting Defendants have not been able to discharge the burden of proof of the above factual aspects lying on R.S.A. No.416 of 2017 Page 7 of 13 {{ 8 }} their shoulder. He further submitted that the document (Ext.6) reveals that there is an unequivocal declaration of the donor Md. Siddique in giving his properties to his children and when the parties are in possession of the respective properties on the basis of that Hiba (Gift) which also receive support from the evidence of the Plaintiff, P.W.1 and P.W.2 as well as the documentary evidence, the First Appellate Court is not right in ignoring that Hibanama (Deed of Gift) which is otherwise valid, admissible and proved in accordance with law. 10. Mr. S. Rath, learned Counsel for the Respondent No.1 submitted that the Trial Court having committed grave error by accepting the claim of the Plaintiff based on Hiba (Gift) and Hibanama (Ext.6), the First Appellate Court has very rightly set it at naught. He submitted that the document (Ext.6) which is said to be the Hibanama (Deed of Gift) executed by Md. Siddique even if accepted as such in entirety and said to have been executed by Md. Siddique, it cannot be termed as Hibanama (Deed of Gift) pursuant to the Hiba (Gift) intending thereunder to make Hiba (Gift) of his properties to his children. He submitted that the document (Ext.6) can under no circumstance be construed as to be in support of Hiba (Gift) and, therefore, the claim of the Plaintiff over the suit property to the exclusion of all others founded upon that Hiba (Gift) has been very rightly repelled by the First Appellate Court. In support of the R.S.A. No.416 of 2017 Page 8 of 13 {{ 9 }} same, he has placed the document (Ext.6) in pointing out as to how the First Appellate Court has refused to accept it as a Hibanama (Deed of Gift) which according to his is correct. 11. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below. I have also gone through the rival pleadings placed by the learned Counsel for the parties in course of hearing. 12. As per Mahomedan Law, a Hiba or Gift is a transfer of property made immediately and without any exchange, by one person to another and accepted by or on behalf of the latter. 13. In the backdrop of above, the document proved by the Plaintiff in support of his claim of Hiba made by Md. Siddique in respect of the suit property in his favour stands for its construction, whether to be recognized in law and respected as such for being given effect to in accordance with that. It would be profitable therefore to reproduce the English version with that relevant clause in that so- called Hibanama (Ext.6) in Urdu which is as under:- “I. Md. Siddique son of late Haider Ali, am the resident of Jaintgarh, PS-Jagannathpur, Dist-Singhbhum, today on 11.02.1988, I am making partition of my landed properties amongst my sons and daughters in presence of the witnesses. 1. xx xx R.S.A. No.416 of 2017 Page 9 of 13 {{ 10 }} 2. xx xx 3. All cultivable land situated at mouza-Champua given to (1) Md. Yunus, (2) Md. Mustaque Ahmed and (3) Md. Yusuf. These cultivable lands at Champua are given on the condition that Md. Yusuf, Md. Mustaque Ahmed and Md. Yunus would give food and drink and clothes to me till death. xxxxxxx xxxxxxxx xxxxxx