A gift under Muslim Law requires a valid declaration, acceptance, and delivery of possession; gifts of undivided property can be valid if established correctly, confirmed through evidence.

JUDGMENT :

Jaspreet Singh, J

The instant first appeal has been filed by the defendants/appellant under Section 96 CPC against the judgment and decree dated 6.4.1977 passed by the Ist Additional District Judge, Bahraich in Regular Suit No. 14 of 1973 whereby the suit for eviction and damages for use and occupation has been decreed in favour of the plaintiffs/respondents. For the sake of convenience this Court shall refer to the parties as impleaded in the trial Court.

2. The brief facts giving rise to the instant appeal are being noticed herein after :

3. The plaintiffs [respondents herein] instituted a suit against the defendants Noor Ahmad and Shamshuddin [appellant before this Court] for eviction from a shop, godown and upper portion of the disputed house in question and also for a decree of damages for wrongful use and occupation.

4. The case of the plaintiffs was that their father Quadir Mian had gifted the property in question to the plaintiffs by means of registered gift deed dated 20.4.1967. In terms of the said gift deed the plaintiffs have the title to the same and since the defendants who are their step brothers (sons of Quadir Mian from his first wife) who requested the plaintiffs to permit them to continue with their occupation in the disputed property for sometime and they promised to vacate the same and later as they refused to do so, hence the plaintiffs treating the defendants as licencees terminated their licence and issued a notice for vacation of the premises which was not complied with and thus instituted the suit seeking decree of eviction as well as damages for wrongful use and occupation. Significantly, the plaint also contained a map indicating the portion which was in the possession of the plaintiffs and the defendants respectively.

5. The defendants filed their written statement and contested the suit on the premise that the property in question belonged to Barati Mian, the grand father of the defendants (father of Quadir Mian). As Barati Mian was aware of the fact that after Quadir Mian had re-married, his relations with his children from the first marriage was not cordial, hence in order to protect and secure the rights of the children from the first marriage of Quadir Mian, Barati Mian had gifted the property to the defendants and as such they claimed their title over the same and that for the said reason the plaintiffs could not seek their eviction nor could seek damages for wrongful use and occupation.

6. The trial Court on the exchange of the pleadings framed five issues which read as under :

(1) Whether the property in suit belonged to Mohd. Quadir Mian as alleged by the plaintiffs if so did he make a gift of the property to the plaintiffs?

(2) Whether the property in suit belonged to the father of Quadir Mian and he made a gift in favour of the defendants and his brother Badruddin as pleaded in para-17 of the written statement?

(3) Whether the suit is bad for non-joinder of Badruddin?

(4) Whether the suit is not within time?

(5) Whether the defendants have become owners by adverse possession?

7. The trial Court considering oral as well as documentary evidence, by means of its judgment and decree dated 6.4.1977, decreed the suit against the defendants awarding possession to the plaintiffs over the disputed portion shown by blue colour in the map annexed w