Point of Law: Under the proviso, the Court should be "satisfied" that the case involves a "substantial question of law" and not a mere "question of law

JUDGMENT :

1. The substitution of sole appellant as allowed earlier is permitted to incorporate during the course of the day.

2. Heard Mr. Aftab Ahmad learned counsel for plaintiff-appellant and Mr. Subhash Vidyarthi learned counsel for defendant respondent.

3. Second appeal under Section 100 of the Code of Civil Procedure 1908 has been filed against judgment and decree dated 16th February, 2015 relating to suit No. 32 of 1982, Mohd. Farooq Siddiqui versus Smt. Saeeda Bano.

4. A preliminary objection regarding maintainability of the second appeal has been raised by learned counsel for respondent on the ground that no substantial question of law is involved in the present second appeal. The said question therefore is also being adjudicated upon.

5. The plaintiff-appellant had filed a suit for declaration with regard to the suit premises which was decreed by means of the judgment and decree dated 31st March, 2003 but the first appeal was allowed by means of the judgment and decree dated 16th February, 2015 leading to the filing of the present second appeal.

6. Learned counsel for appellant has submitted that the suit premises had earlier belonged to Smt. Abida Bano who was the owner in possession of the house bearing Municipal No. 337/1991 having purchased the same by means of a registered sale deed from one Altaf Husain. It is submitted that the plaintiff-appellant entered into the suit premises as a tenant of Smt. Abida bano who was widow but issueless. Learned counsel submits that due to the care being taken by the plaintiff-appellant, Smt. Abida Bano being pleased with his services gifted the suit premises to the plaintiff-appellant by means of an oral gift deed i.e. a hiba. It is submitted that merely to recognize the oral gift deed, a written deed of hibanama was also executed on 10th April, 1972 while delivering formal possession of the suit premises on the same date. It is submitted that subsequently the defendant-respondent filed SCC suit No. 715 of 1980 claiming herself to be the owner of the entire suit premises due to which the plaintiff-appellant was compelled to file the present suit No.32 of 1982 seeking the relief of declaration. It is submitted that since the plaintiff-appellant was already in possession over the suit premises, no further relief of possession was sought nor was required to be taken in the plaint.

7. Learned counsel submits that the trial court framed four issues with the first issue pertaining to the ownership and possession of the plaintiff and issue No.3 being framed with regard to the ownership of the suit premises by the defendant. He has submitted that after examination of evidence, the suit has been decreed in favour of the plaintiff-appellant by means of the judgment and decree dated 31st Mach, 2003 which was appealed against by the defendant-respondent.

8. Learned counsel for appellant has further indicated that the first appellate court had framed three points of determination with the first point adverting to the question regarding validity of the oral hiba and the ownership of the plaintiff on that basis. The second issue framed by the first appellate court was with regard to the suit being barred in terms of the proviso to Section 34 of the Specific Relief Act, 1963.

9. Learned counsel for the plaintiff-appellant has submitted that the first appellate court has erred substantially in law in reversing the judgment and decree of the trial court primarily on the ground that the reversal has been done with regard to findings of fact recorded by trial court without scrutinizing the said findings and pointing out any errors therein. It is also submitted that finding recorded by the first appellate court regarding invalidity of the hibanama is also against the oral evidence on record. It has also been submitted that the first appellate court has misinterpreted the proviso to Section 34 of the Specific Relief Act in holding against the plaintiff-appellant and has also erred substantially in law with