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IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
B. Siva Sankara Rao, J.
Hifazath Hussain & Others - Appellants
Versus
Sadiq Hussain @ Mushraf - Respondent
Cross-Objections (SR) No. 50296 of 2004 in C.C.C.A. No. 269 of 2004
Decided On : 22-04-2016
Civil Law – Civil Suit – Indian Evidence Act, 1872 – Section 154 – Suit for Recovery of possession – Dismissal order – This appeal is filed by the sole plaintiff in O.S. seeking to declare plaintiff as the absolute and exclusive owner of suit schedule property, for recovery of possession ofsame and for recovery of mesne profitsfrom the date of suit till delivery of possession of the suit schedule property against the defendant, impugning dismissal decree and judgment of the trial Court supra seeking to set aside the same by allowing the appeal – The sole defendant after service of appeal summons maintained cross-objections vide Cross-Objections – Held, Trial Court’s conclusion in this regard thereby for this Court on re-appreciation of the entire material from the facts and law afresh as discussed supra even no way requires interference but for to explain the legal possession supra on the oral gift and subsequent acknowledgment of transaction no way requires registration – Thus the trial Court was right in drawing adverse inference for non-examination of plaintiff following the expression of our High Court’s expression of Division Bench in Radhabai Vs. Yashodabai (1998) 6 ALT 555) apart from it the expression of the Apex Court in Panduranga Jivaji Apte Vs. Ramachandra Gangadhar Ashtekar (AIR 1981 SC 2235) that the question of drawing adverse inference against the plaintiff for not coming to witness box is though not an automatic but for there is no other evidence in proof of the plaintiff’s case worth for consideration so to draw therefrom also as discussed supra for there is no worth material. Once the plaintiff miserably failed to succeed his case, the question of shifting onus on the defendant does not arise. No doubt, the cross-objections filed by the defendant is against the finding equally against the Ex.B.9. From cross-examination of the fingerprints Expert P.W.4 with reference to the opinion on Ex.B.9 also of ridge marks not clear to say the so called memorandum of oral gift in the year 1975 executed by the defendant’s grandmother–cum-plaintiff’s mother not proved for no other worth evidence. Even among the Exs.B.1 to B.40 no record showing, if at all it is a gift of 1975, what prevented to mutate the property in the name of defendant and his other paternal uncles so called donees-cum-sons of Ameerunnisa Begum. There is no evidence in this regard even from the defendant’s side – Even the evidence of D.Ws. 1 and 2 much less with reference to Ex.B.1 to B.40 thereby nothing when proved that finding of the trial Court also no way requires interference by sitting against in answering the cross-objections – Appeal are dismissed (Paras 24 and 25)
1. This appeal is filed by the sole plaintiff in O.S. No. 390 of 2001 (old O.S. No. 842 of 1995 seeking to declare the plaintiff as the absolute and exclusive owner of the suit schedule property, for recovery of possession of the same and for recovery of mesne profits at the rate of Rs.600/- p.m. from the date of suit till delivery of possession of the suit schedule property), on the file of XIV Additional Chief Judge, City Civil Court, Hyderabad against the defendant, impugning the dismissal decree and judgment of the trial Court supra dated 12.07.2014 seeking to set aside the same by allowing the appeal. The sole defendant after service of appeal summons maintained cross-objections vide Cross-Objections (SR) No.50296 of 2004).
2. The appeal and Cross-Objections were while coming together for hearing and during the pendency of the same, the sole appellant/plaintiff died and his legal representatives are brought on record as appellant Nos. 2 to 6 to the appeal as per orders dated 17.09.2007 in CCCAMP No.386 of 2007 and they were also brought on record as respondent Nos. 2 to 6 to the Cross-Objections as per orders of even date in CCCAMP Nos. 844 to 846 of 2007. It is further to mention that the 5th appellant also later died and his legal representatives were brought on record as appellant Nos. 7 and 8 to the appeal as per orders dated 30.01.2013 in CCCAMP No.2 of 2013 and this Court brings them equally as respondent Nos. 7 and 8 to the Cross-Objections.
3. The plaint schedule property consists of a portion of house bearing municipal No.20-2-655 comprising on an area of 85sq.yards with two rooms, kitchen, bathroom, and W.C. situated at Hussaini Alam, Hyderabad bounded by North: the other portion of H. No. 20.2.655, South: public lane East: Open land of plaintiff and West: neighbour’s house.
4. The case of the plaintiff in nutshell is that the plaintiff is the absolute and exclusive owner of a portion of the house bearing No.20-2-655 comprising on an area of 372sq.yards situated at Hussaini Alam, Hyderabad in which the plaint schedule is a part, that Smt.Ameerunnisa Begum, the mother of the plaintiff being original owner of the property, orally gifted the same to the plaintiff on 29.09.1985 in the presence of witnesses and gave symbolic possession of the same, that she later executed a memorandum of oral gift on 03.10.1985(Ex.A.1) attested by a public notary with a plan(Ex.A.2) showing the gifted property in red colour, that the gifted property was in possession of three tenants at the time of gift and they were atorned to the plaintiff, that a small portion of 85sq.yards out of the gifted property, which is the plaint schedule property, was in possession of one of the tenants by name Mahammad Osman till he vacated the same and delivered the vacant possession thereof to the plaintiff in the month of January, 1991. While so, the defendant, no other than the son of plaintiff’s one of the brothers, requested the plaintiff to permit him to reside in said plaint schedule for a period of three years on free of rent. Accordingly, the plaintiff permitted him since 01.03.1991 in the plaint schedule property as a licensee with a condition to vacate the same by the end of February, 1994. The defendant instead of vacating the same, filed a criminal case vide C.C. No. 79 of 1995 against the plaintiff and his sons, which was on contest ended in acquittal. The defendant deposed in the criminal case that the suit schedule property would be bequeathed to him by his paternal grandmother Smt. Ameerunnisa Begum. When the plaintiff issued a legal notice on 20.06.1995 (Ex.A.3), the defendant gave a reply on 24.06.1995 (Ex.A.4), claiming as if owner of the plaint schedule property under a gift deed as against the earlier plea of getting the property under the will. As a matter of fact, the defendant was in permissive possession of the suit schedule property under the plaintiff and neither any will nor any gift was made and executed in his favou
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