The court held that the appellant/defendant failed to prove that the suit property was gifted to him by his brother. The court also held that the unregistered documents relied upon by the respondent/plaintiff were admissible and that the respondent/plaintiff had an entitlement to take possession of the property.

JUDGMENT

Valmiki J. Mehta, J. (Oral)--This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the defendant in the suit impugning the Judgment of the Trial Court dated 5.3.2013 by which the trial court has decreed the suit for possession and mesne profits filed by the respondent/plaintiff with respect to the suit property comprising of ground floor and first floor of property bearing no. J-67/2, Thokar no. 4, Abdul Fazal Enclave, Part-I, Okhla, New Delhi on plot of 62 sq. yds. (hereinafter referred to as `the suit property').

2. The case set up by the respondent/plaintiff was that he purchased the suit property from one Laiq Ahmed in terms of documentation dated 20.2.2008 being the Agreement to Sell (Ex. PW1/F), Affidavit (Ex. PW1/H), General Power Attorney (Ex. PW1/G), Will (Ex. PW1/I), Receipt (PW1/J) etc. The seller Laiq Ahmed has purchased the suit property from the earlier owner Islauddin Safi and who was the owner of the suit property in terms of General Power of Attorney (Ex. PW3/1) and Special Power of Attorney (Ex. PW3/2). Appellant/defendant is the brother of Laiq Ahmed, and from whom Laiq Ahmed, the respondent/plaintiff has purchased the suit property. Laiq Ahmed had allowed the appellant/defendant, his brother, to stay in the suit property as licensee but in spite of notice of termination dated 23.1.2008 (Ex. PW1/K) issued by Laiq Ahmed, the appellant/defendant had failed to vacate the suit property. On the respondent/plaintiff purchasing the suit property he sent a notice dated 16.4.2008 (Ex. PW1/N) apprising the appellant/defendant that Laiq Ahmed had sold the suit property to the respondent/plaintiff, and therefore, appellant/defendant should hand over the physical possession of the property. Appellant/defendant gave his reply dated 24.4.2008 (Ex. PW1/O) claiming that no license exists between the appellant/defendant and his brother Laiq Ahmed and there did not arise any question of its revocation. Respondent/plaintiff therefore was left with no option and subject suit was for possession and mesne profits was filed.

3. Appellant/defendant contested the suit and pleaded that the suit was a collusive suit between his brother Laiq Ahmed and the respondent/plaintiff who was a practicing Lawyer. It was pleaded that the reliance placed by the respondent/plaintiff was on the unregistered documents and therefore such documents would have no value in view of Sections 17 and 49 of the Registration Act, 1908. It was pleaded that the suit property was gifted to the appellant/defendant by his brother Laiq Ahmed out of the natural love and affection and that in Muslim law oral gift/Hibba with possession was permissible and appellant/defendant since gifting to him of the suit property on 29.11.1997 was in possession of the same. Suit was therefore prayed to be dismissed.

4. After pleadings were complete, trial court framed issues and evidence was led by the parties, and which aspects are stated in paras 2.1, 2.2 and 3.1 of the impugned judgment and these paras read as under:

"2.1 On 03.08.2011, the following issues were framed, from the pleadings and record of parties:

1. Whether the plaintiff has locus-standi to file the suit ? OPP