In property partition appeals, the High Court dismissed appeals by holding that the trial court correctly found an alleged oral hiba unproven as key witnesses were absent, noting the property was jointly registered in three brothers' names.
Second Appeals failed and are dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Court No. - 53
Case :- SECOND APPEAL No. - 74 of 2020 Appellant :- Mohd. Habeeb Ansari And 7 Others Respondent :- Mohammad Iliyas And Another Counsel for Appellant :- Mohd. Asif,Shyam Surat Shukla Counsel for Respondent :- Shekhar Gangal
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Case :- SECOND APPEAL No. - 76 of 2020 Appellant :- Mohd. Habeeb Ansari (Deceased) And 7 Others Respondent :- Mohammad Iliyas And Another Counsel for Appellant :- Mohd. Asif,Shyam Surat Shukla Counsel for Respondent :- Shekhar Gangal Hon'ble Vivek Agarwal,J.
Heard Sri Shyam Surat Shukla, learned counsel for the appellants and Sri Shekhar Gangal, learned counsel for the respondents.
These appeals have been filed by the plaintiff being aggrieved by judgment and decree dated 12.11.2019 and 26.11.2019 respectively passed by learned Additional District Judge, Court No.10, Aligarh in Civil Appeal Nos.57 and 58 of 2018 (Mohd. Habeeb Ansari (Deceased) along with his legal heirs Vs. Mohd. Iliyas and another) arising out of judgment and decree dated 24.03.2018 and 07.04.2018 respectively passed by the Court of Small Cause/Additional Civil Judge (Sr. Division), Aligarh in original suit No.808 of 2008 and 870 of 2011.
Two suits were respectively filed by the rival parties namely original suit No.808 of 2008 by Mohd. Habib Ansari (deceased) claiming that the suit property contained in Plot Nos.256 and 257 measuring 182.24 sq. met. situated at Kothi, Darul-Unsdodpur, Aligarh is his exclusive property as two of his brothers namely Abdul Jalil and Khalil Ahmad had transferred their share as was acquired jointly by three brothers vide registered sale deed dated 10.07.2002 through oral hiba dated 10.03.2003 in favour of the plaintiff-Mohd. Habib Ansari. On the basis of such representation Mohd. Habib Ansari filed a suit for permanent injunction against the defendants-Mohd. Iliyas and others.
Whereas defendant-Mohd. Iliyas in suit no.808 of 2008 instituted original suit no.870 of 2011, Mohd. Iliyas and others Vs. Mohd. Habib Ansari for claiming prohibitory and mandatory injunction. Both the suits were tried together and after framing issues mainly, as to whether the property contained in Plot Nos.256 and 257 measuring 182.24 sq. mts. after being declared free-hold by the Collector, Aligarh was registered in the name of the plaintiff-Mohd. Habib Ansari, and if yes, then what will be its impact.
Another issue was whether the sale deed of the free hold plot was executed in favour of three brother namely Mohd. Jalil, Mohd. Khalil and Mohd. Habib Ansari jointly.
These suits were decided by the trial court and trial court partially decreed the suit no.808 of 2008 prohibiting the defendants in that suit to interfere in the peaceful possession of portion marked in white in document no.27-A/10 which is in the peaceful possession of plaintiff-Mohd. Habib Ansari and dismissed the suit of Mohd. Habib Ansari in relation to the portion shown with blue and green colour in document no.27-A of 2010.
Similarly, learned trial court decreed the suit no.870 of 2011, Mohd. Iliyas and others Vs. Mohd. Habib Ansari directing Mohd. Habib Ansari and others to hand over possession of the property mentioned in Schedule-A and Schedule-B annexed to the plaint and restrained the defendants to not to transfer the said property either on own or through agent or any other member of the family. It further declared that map contained in Document no.27-A (leading case) shall be part of the joint decree.
Being aggrieved of judgment and decree, two appeals were filed and both the appeals have been dismissed by learned first appellate court, as a result of which, these second appeals have been filed.
It is contention of the learned counsel for the appellants that these appeals raises following substantial questions of law namely; (a)
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Whether the hiba dated 10.03.2003 could have been said to have been not proved without framing an specific issue in this regard, thus a judgment is sustainable in the eyes of law.
Learned counsel for the appellants submits that since no issue was framed in regard to transfer of share of property which was jointly registered in the name of three brother vide document dated 10.07.2002. The onus was on the defendants to have proved factum of family settlement dated 15.08.2002, according to which, free-hold plot measuring 182.24 square meter was allegedly divided in three portions measuring 60.67 sq. mets., each out of which, Eastern part was taken by Mohd. Jalil, Central part taken by Mohd. Khalil and Western part was taken by the plaintiff- Mohd. Habib Ansari.
Ancillary to this, it was also necessary to frame an issue as to whether as has been pleaded by the plaintiff Mohd. Habib Ansari that two of his brothers had transferred their shares through oral hiba dated 10.03.2003 in his favour and, therefore, he had become sole owner of the plot measuring 182.024 sq. mts. was since not framed, no finding could have been recorded in this regard.
It was plaintiff who had filed document no.10-A, copy of the registered deed dated 10.07.2002 and agreement vide document no.34(c) which reflected that Collector had executed free-hold deed jointly in favour of Mohd. Jalil, Mohd. Khalil and Mohd. Habib Ansari. Document no.34(c) proved that Smt. Mahmooda Yasmin Khan had executed an agreement in favour of the plaintiff-Mohd. Habib Ansari and his brothers Mohd. Jalil and Mohd. Khalil. These documents conclusively rebutted the contention of the plaintiff that Smt. Mahmooda. Yashmin Khan had executed the agreement only with the plaintiff and not with three brothers.
Sri Shekhar Gangal, learned counsel for the respondent in his turn submits that firstly; the issue of hiba is ingrained in the issues framed by the trial court namely issue nos.1, 2 and 3, inasmuch as, first issue is to the effect that whether plaintiff is owner/possessor of
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plot nos.256 and 257 measuring 182.24 sq. mts. vide registered deed dated 10.07.2002 executed by the Collector after declaring the plot to be free-hold. Issue no.3 is ancillary to this, as to whether, the disputed property was registered in the joint names of the three brothers by the Collector after declaring it to be free hold. And, third issue is as to whether the construction existing on the property has been made by the plaintiff on the strength of the agreement executed by Smt. Mahmooda Yasmin Khan in favour of the plaintiff.
It is submitted that if issue nos.3 and 1 would have been answered in favour of the plaintiff then by implication, it would have been proved that three some mechanism, two brothers namely Mohd. Khalil and Mohd. Jalil transferred their shares in favour of Mohd. Habib.
It is also submitted that in fact evidence has been led as is apparent from the internal page 14 of the judgment of the trial court and in para 27 of the judgment of the first appellate court, there is an elaborate discussion as regard to hiba dated 10.3.2003. Therefore, it now not open to the appellant to claim that since issue was not framed in regard to the validity of the hiba dated 10.03.2003, he was precluded from leading evidence as proof of such hibanama in his favour.
After hearing learned counsel for the parties and going through the records, it is evident that learned trial court has categorically dealt with the aspect of hiba in relation to the statements made by the plaintiff-Mohd. Habib Ansari to the effect that the hiba was made on 10.03.2003 at home, it was not written down, it was oral. At the time of giving of such hiba which was between 5 to 6 p.m. Besides his elder brother Abdul Jalil and Khalil Ahmad, his mother and one friend of his mother namely Nusrat Aapa were present and nobody else. Court has dealt with this aspect and has categorically mentioned that plaintiff has not examined either his mother or Nusrat Aapa to prove the factum of gift deed. He has examined Zaheer Ahmad and Rahat
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Ali besides himself as witnesses and as per the averments of the plaintiff-Mohd. Habib Ansari, they are not the witnesses of oral hiba.
In view of such facts and findings, the plea of oral hiba has been negativated. Besides this, defendants examined their witnesses D.W.-5, Naeem Ahmad son of the deceased-Khalil Ahmad who not only denied the factum of hiba but proved the fact of joint ownership of the plot, partition through family settlement and, thereafter, sell in favour of the defendants vide sale deed dated 15.04.2008.
D.W.-1, Mohd. Iliyas and D.W.-2, Seema Bano Khan supported these contentions. Besides this, D.W.-3, Shamim Begum wife of Mohd. Jalil also supported the statements of Mohd. Iliyas and filed original copy of the sale deed on record vide document Nos.56-A and 57-A.
In view of such facts and also the fact that plaintiff-Mohd. Habib Ansari encroached upon the property of the defendants as was purchased by them vide registered sale deed dated 15.04.2008. It was allegedly encroached upon by the plaintiff-Mohd. Habib Ansari during their absence between 25.03.2011 to 27.03.2011. Report in regard to which was made to the S.S.P., Aligarh, copy of which was filed on record and also taking into consideration, the deed executed by the Collector, Aligarh on 10.07.2002 in favour of three brothers, the Trial court did not commit any error in passing the impugned judgment and decree.
Learned first appellate court has rightly dismissed the appeal which does not call for any interference in this second appeal as the only substantial question of law pressed by learned counsel for the appellant that in absence of any specific issue being framed in regard to validity of hiba, no finding could have been recorded is not made out from the documents on record.
Accordingly, Second Appeals fail and are dismissed.
Order Date :- 3.2.2020 Ashutosh
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2 issues framed by the court
Whether valid oral hiba concerning property shares was established without specific issues being framed to test its veracity.
Whether the trial court erred in relying on existing evidence to negative the claim of oral gift deed.
Mohd. Habeeb Ansari
Mohammad Iliyas
Vivek Agarwal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
