The burden of proof lies on the party claiming an oral gift, and adverse possession cannot be claimed while being a tenant.

JUDGMENT:

S.B. SINHA, J :

1.This appeal is directed against the judgment and order dated 31.12.1999 passed by the High Court of Andhra Pradesh, allowing the appeal from a judgment and decree dated 05.09.1998 passed by the IV Senior Civil Judge, City Civil Court, Hyderabad in O.S. No. 161 of 1989.

2.Respondent No. 3 herein was the owner of the property which is situated at Bagh Lingampalli, Hyderabad. It was let out to Respondent No. 1, where an educational institution was being run on a monthly rent of Rs.1,200/- by a deed of lease dated 16.05.1973. The period of lease was initially for 11 months, which expired in 1975. Respondent No. 1, however, did not surrender the tenancy or deliver vacant possession of the tenanted premises to Respondent No.3. It tendered rents till December 1976. No rent, however, was demanded by Respondent No. 3 from Respondent No.1. Several constructions were raised by it from time to time.

3. Respondent No. 3, however, entered into a development agreement with the managing partner of the appellant and other persons on 01.04.1986. A deed of partnership was executed on 21.04.1986. Disputes and differences having arisen between the partners, the same were referred to an arbitrator. An arbitration award was passed on 22.11.1987, in terms whereof a sum of Rs.4,00,000/- was awarded in favour of Respondent No. 3. The said award was made the rule of court in terms of Section 14(2) of the Arbitration Act, 1940 by an order dated 29.02.1988. Allegedly, by reason of the said award, the appellant became the owner of the property. Respondent No. 1 was called upon to pay rents in respect of the suit property by a notice dated 22.11.1987. The tenancy was terminated by a notice dated 30.10.1988. On or about 08.12.1988, Respondent No. 1, in reply to the said notice, asked the appellant to furnish the particulars in regard to the ownership of the suit property. It, however, not claimed therein that it had acquired any ownership by reason of a purported oral gift made by Respondent No. 3 herein, as appears to be the case now. As it failed to vacate the premises, a suit for recovery of possession and arrears of rents and also for damages for wrongful use and occupation of the property was filed by the appellant. In the written statement filed in the suit, it was, inter alia, contended that Respondent No. 3 herein made an oral gift in its favour on or about 01.10.1975. In the alternative, it was contended that it had acquired an indefeasible title in respect of the property in question by adverse possession. Respondent No. 3 in its written statement supported the case of the appellant, inter alia, denying and disputing the claim of Respondent No. 1 herein that he made an oral gift in its favour.

4.In the suit, inter alia, the following issues were framed :

"I. Whether the oral gift by the third defendant in favour of first defendant is true and valid and binding on the plaintiff ?

II. Whether the documents relied upon by the plaintiff are brought into existence in between the plaintiff and third defendant in the circumstances alleged in W.S. ?"

5. Respondent No. 1 admittedly did not examine himself. The suit of the appellant was decreed. The learned Trial Judge opined :

i)The burden was on Respondent No. 1 to prove the oral gift.

ii)There was no reason for it not to disclose thereabout in its reply to the notice issued by the appellant.

iii)No declaration was filed by Respondent No. 1 before the Urban Land Ceiling Authority in the year 1976.

iv)A purported letter written by Respondent No. 3 confirming the oral gift had not been produced.

v)Although constructions were raised by it on the suit premises, in none of the applications, the right to make constructions was based on the ownership of the property derived by reason of the oral gift. vi)No disclosure was made in regard to the ownership of the property, in the return filed by it before the Registrar under the Societies Registration Act.

vii) No resolution had been passed by