IMPORTANT POINTS
(1) Mohammedan Law – Gift (Hiba) – For a valid gift declaration by donor is must – A gift cannot be implied.
(2) Amendment of plaint – It is always open to court to allow an amendment if it is of the view that allowing of an amendment shall really sub-serve ultimate cause of justice and avoid further litigation.

JUDGMENT (CAV)

This is plaintiff’s second appeal filed under Section 100 of the Code of Civil Procedure, 1908 against the judgment and decree dated 5-9-2014 passed by the First Additional District Judge, Bilaspur (CG) in Civil Appeal No. 24-A/2010, affirming the judgment and decree dated 15-2-2001 passed in Civil Suit No.33-A/1999 whereby the appeal filed by the plaintiff was dismissed.

2. This appeal has been admitted by this court on 13-1-2015 on the following substantial questions of law:

(i) Whether the Tehreenama dated 7-2-1955 Ex.D/4 can be negated by taking recourse to Section 58 of Indian Succession Act on account of non- examination of attesting witness No.1?

(ii) Whether the omission to decide the applications filed under Order 6 Rule 17 of CPC and Order 41 Rule 27 of CPC has vitiated the entire judgment and decree?

(iii) Whether the lower appellate Court erred in holding that the plaintiff’s suit is barred by time, by reversing the findings of the trial court in this regard?

3. For sake of convenience, the parties have been referred to as shown in the original suit filed in the trial court.

4. The brief facts as reflected from the record are that the plaintiff has filed a civil suit in the year 1990 claiming declaration of title and possession by alleging inter alia, that the suit property bearing Khasra No. 176, 177, 178 and 180 (renumbered as Khasra Nos.180/1, 180/2 an 180/3) admeasuring respectively 1.10 acres, 0.72 acres, 0.08 acres and 8.5 acres (total 11.14 acres) situated at village Chantidih, District Bilaspur was recorded in the revenue records in the name of Mohd. Sharif S/o. Afzal Beg. It has been further averred in the plaint that the plaintiff and respondents No.1 and 2 are relatives and they are governed by the Mohammadan Law. It has also been contended that the father of plaintiff and defendant No.2 Sheikh Daud @ Daddu has purchased the land from his own income and due to love and affection he has recorded the suit land in the name of his younger brother namely late Mohammed Sharif, but in fact neither late Mohammad Sharif was real purchaser nor he was owner of the suit property. It has also been contended that late Mohammed Sharif was aware of the factual position, as such, he has declared to give the land to the legal representative of original owner late Mohammad Sheikh Daud @ Daddu’s, defendant No.1 Mohammed Saeed and Mohammed Ishaq are aware of this declaration. It has also been averred in the plaint that Mohammed Sharif expired in the year 1955, at the time of his death plaintiff was minor and his mental position was also not proper as he was mentally disturbed and getting treatment at Nagpur. It has also been contended that as per advice of Doctor, he was kept away from all the mental tensions. It has also been contended that the defendant No.1 Mohammed Saeed taking advantage of the plaintiff’s incapacity of look after the property, he has done conspiracy and decided to take the said land on rent for Rs 3,000/- from the plaintiff. The plaintiff was not aware about the conspiracy committed by the defendant No.1 who is his cousin. Therefore, the plaintiff has given the said land on rent to defendant No.1 and defendant No.1 was paying rent of Rs.3,000/- annual rent to the plaintiff as a tenant. This fact has been brought to the notice of the plaintiff in the month of April 1990 that defendant No. 1 is tenant of the plaintiff and is being paid Rs. 3,000/- per month by defendant No. 1. It has also been contended that in the month of April 1990, the plaintiff was made aware that defendant No.1 intended to sell the property on the basis of possession. When the plaintiff has contacted defendant No.1, then defendant No.1 informed him that his name has been recorded and the Patwari has also verified the same fact, therefore, the plaintiff has sent a registered legal notice to the defendant No.1 only on 11-4-1990. Defendant No.1 replied the said notice on 20-4-1990. Since, the defendant No. 1 is maki