IMPORTANT POINT
If Gift is not in accordance with Mohammedan law, Section 123 of T.P. Act, 1882 attracted and provisions of relevant Stamp Act and Registration Act also get attracted.

Aravind Kumar, J.— This is a defendant appeal questioning the correctness and legality of the judgment and decree passed in OS No. 4692 of 1997, dated 10.4.1997 on the file of the VIII Additional City Civil Judge, Bangalore whereunder the suit filed by the appellants for declaration came to be dismissed.

2. The facts leading to the filing of this appeal are as under and the parties are referred to as per their rank in the Trial Court.

2.1 The plaintiffs instituted a suit in OS No.4692 of 1997 on the file of the City Civil Court, Bangalore, seeking the following relief:

(i) To declares that the plaintiffs as the absolute owners of the schedule property and that the defendants have no manner of right, title or interest in the property.

(ii) To issue an order of permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the schedule property in any manner.

(iii) To declare that the sale deed registered as No. 8244, dated 28.4.1994 at pages 71-74 in Book I, Volume 5086 of 1993-94 between the defendants as null and void, and

(iv) To grant such other consequential relief including costs as this Hon’ble Court deem fit in the circumstances of the case in the interest of justice and equity.

2.2 It was contended in the plaint that the suit schedule property bearing No.52, formed in Sy. No. 88/4 in Venkateshpura, Kadugondanahalli Dakhle, Bangalore North, which has been described in the plaint and hereinafter referred to as suit schedule property was purchased by second defendant under a registered sale deed dated 6.1.1979. It was contended that suit schedule property was gifted by way of Hiba; delivered possession to the plaintiffs on 23.9.1991 and on the same day original title deeds of the suit schedule properties were handed over to the plaintiffs. It was also contended that second defendant wrote confirmatory letters to the concerned authorities namely the Municipal authorities to change over the khatha to the names of the plaintiffs. It was further contended consequent to Hiba plaintiff took possession of the suit schedule property and enjoyed all the rights of ownership and got the khatha transferred to their name and leased out the shop premises to different defendants and also applied for regularisation of construction. Hence, it was contended that plaintiffs were in possession and enjoyment of rights over the suit schedule property. It was contended that second defendant left suit schedule property and was living separately with the second wife and he never interfered with possession on, right, title and interest of the plaintiffs.

2.3 It was contended that process server came over to the suit schedule property to serve the Court summons to the second defendant respect of an eviction petition filed by the first defendant against the second defendant in HRC No.10357 of 1995 before Small Causes Court and he was informed that the second defendant is not living in the suit schedule property. It was contended by the plaintiff in the suit that immediately they suspected foul play and plaintiffs made enquiries and found that first defendant had filed an eviction petition falsely contending that it is leased out by first defendant to second defendant on monthly rent of Rs.2,800 showing the suit schedule property as the petition schedule premises. It was contended by the plaintiffs that they made enquiries with the first defendant and he produced the registered sale deed dated 26.2.1994 claiming that it has been sold by the second defendant to the first defendant as such that plaintiffs contended that as application for getting themselves impleaded in the said HRC petition was filed and same came to be rejected and immediately on dismissal of the said application for plaintiffs approached the Civil Court for redressal of their grievances contending that defendants have no manner of right title and interest over the suit schedule property and the proceedings in HRC No.10357