AHASAN ALI vs SHASHI KANT JAIN - 2011 Supreme(All) 1033

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2011 Supreme(All) 1033

[2011(4) ADJ 925 (DB)]
ALLAHABAD HIGH COURT
BEFORE : YATINDRA SINGH AND ABHINAVA UPADHYA, JJ.
AHASAN ALI …Petitioner
Versus
SHASHI KANT JAIN AND OTHERS …Respondents
(First Appeal No. 805 of 2000, decided on 6th April, 2011)

Advocates:
Counsel :
R.K.Mathur and Madan Singh for the Petitioner; T.A. Khan and K.K. Arora for the Respondents.

Headnote:Code of Civil Procedure, 1908—Order XXI, Rule 58, Sections 47, 11 and 151—Specific Relief Act, 1963—Section 34—Suit—Declaration of—Based on oral gift—Sustainability of—Plaintiff-appellant filed a suit for declaration that he is owner of property in dispute—Allegedly, father of appellant orally gifted the property in dispute to him when he was minor and the same was accepted on behalf of his mother—Trial Court concluded that suit was barred by principles of estoppel and acquiescence—And plaintiff was not in possession over the property in dispute since 16.1.1980 and there was no oral gift in favour of plaintiff and no cause of action available to him—Hence, this appeal—No oral gift established in favour of plaintiff-appellant—Property auctioned in favour of respondent No. 2—Fact that earlier case was taken by father as well as mother of plaintiff that property was gifted to the mother of appellant shows that the case is set up for purposes of the suit—Held, that no oral gift in favour of plaintiff-appellant was made. [Paras 8 to 20]

JUDGMENT

By the Court.—This is an appeal against the judgment and decree dated 22.5.2000 passed by the Ist Additional Civil Judge (Senior Division), Moradabad in Original Suit No. 1260 of 1995.

THE FACTS

2. The plaintiff-appellant filed a suit for declaration that he is the owner of the property in dispute and the defendants have no concern with the same. The allegations in the plaint are as follows:

Rahim Bux, father of the plaintiff-appellant was the owner of the property in dispute described in the end of the plaint. He had orally gifted the property in dispute to the plaintiff on 14.8.1972. He was minor at that time and the gift was accepted on his behalf by his mother;

The father of the plaintiff was working as a labourer in the shop of defendant Nos. 1 and 2 (respondent Nos. 1 and 2 in the present appeal). He had developed bad habits and started taking loan from them;

The defendant Nos. 1 and 2 by taking undue advantage of the father of the plaintiff, got his thumb impression on the papers by committing fraud;

The defendant Nos. 1 and 2 filed original suit No. 25 of 1975 against the father of the plaintiff, which was dismissed by the trial Court on 30.11.1977. However, the appeal filed against the dismissal of the suit was allowed for alternative relief on 19.5.1978.

The father of the plaintiff had nothing to do with the property in dispute after gifting the same to the plaintiff. However, he and defendant Nos. 1 and 2 colluded with each other and the father of the plaintiff did not look after the proceeding in the appeal properly because of which the appeal was allowed;

The defendants have illegally obtained the possession over the property in dispute;

The plaintiff was minor. He came to know about the fraudulent act when he became major and he inspected the file of original suit No. 25 of 1975. Thereafter he requested the defendants to take the money owed by his father and return the house to him. However, it was refused then he is filing the present suit.

3. In the aforesaid suit, written statement was filed by defendant Nos. 1 and 3, (respondent Nos. 1 and 3 in the present appeal). The defence in the written statement is as follows:

The Original Suit No. 25 of 1975 and Civil Appeal No. 11 of 1978 was contested by the father of the plaintiff;

The decree in the aforesaid proceedings were not satisfied by the father of the plaintiff and thus, the execution proceeding No. 27 of 1978 was filed;

In the execution proceeding, objection under Section 47 was filed. After it was rejected, the execution proceeding was finalised and auction was held. It was settled in favour of defendant No. 3 (respondent No. 3 in the present appeal). This auction was confirmed on 1.8.1981;

The possession of the property in dispute was also handed over to defendant No. 3 through the Court on 16.1.1981 and since then he is in possession of the property in dispute;

The suit is barred by principles of estoppel and acquiescence as well as barred by time.;

No cancellation of the decree in Civil Appeal No. 11 of 1978 has been sought in the suit. It is binding upon the plaintiff. The suit is barred under Section 11 of the CPC.

4. The plaintiff examined the following witnesses:

Ahsan Ali, plaintiff, PW-1;

Rais Ahmad, PW-2.

No documentary evidence was filed by the plaintiff.

5. The defendants examined the following witnesses:

Shashi Kant Jain, DW-1;

Mohd. Haneef, DW-2.

6. Apart from other documents, the defendants filed the following documents:

Copy of judgment in Civil Appeal No. 11/78 (Ext. Kha-1);

Copy of order sheet in Suit No. 9/81 (Ext. Kha-11);

Copy of application under Section 151 CPC in Case No. 9/81 (Ext. Kha-9);

Copy of affidavit on behalf of Smt. Chando in Case No. 9/81 (Ext. Kha-10);