JUDGMENT :

The unsuccessful plaintiff has filed this Appeal Suit assailing the judgment and decree dated 03.06.2014 in OS No.474 of 2012 on the file of the learned VII Senior Civil Judge, City Civil Court at Hyderabad.

2. The plaintiff has filed the original sit for partition and separate possession of his share in the suit schedule property, house with municipal No.18-12-418/D/1/10 admeasuring 250 square yards situated at Hafez Babanagar, Hyderabad (hereinafter referred to as ‘suit schedule property’). The plaintiff married the defendant in the year 2003, however, after the marriage the plaintiff came to know that the defendant has already contracted three marriages with Arab nationals and obtained divorce. When questioned by the plaintiff, she requested for mercy, accordingly, the plaintiff and the defendant lived together, lead marital life and they were blessed with two children. The plaintiff and the defendant are in joint possession of the suit schedule property, but actually the defendant along with her children are staying in the same and the plaintiff was paying maintenance to them. Despite providing all comforts, the defendant started showing disrespect towards the plaintiff. Accordingly, he divorced her on 03.03.2009 as per Shariath Law. He has also filed a petition in OP No.132 of 2012 on the file of the learned Judge, Additional Family Court, Hyderabad claiming the custody of his minor children and the defendant refused to settle the OP before the Lok Adalat. Hence, the suit is filed for partition and separate possession of the half share of the plaintiff in the suit schedule property.

3. The defendant has resisted the suit and filed a detailed written statement denying the plaint averments admitting her marriage with the plaintiff. It is denied by the defendant that she has already contracted three marriages with Arab nationals and obtained divorce. In fact, the defendant is divorcee and the plaintiff is aware of the same. During subsistence of marriage, the suit schedule property was purchased by the defendant only. However, at the request of the plaintiff, his name was also included in the sale deed as joint owners. In fact, she has contributed the sale consideration by selling her gold ornaments, as such question of plaintiff’s spending money for purchase of suit schedule property does not arise. Further, during subsistence of the marriage itself on 12.01.2009 the plaintiff has gifted his undivided and unspecified half share in the suit schedule property orally to the defendant in the presence of two witnesses viz., Mohd. Ahmed and Mohd. Sajid and from the date of oral gift she is in exclusive possession and enjoyment of the suit schedule property, there was no such demand by the plaintiff for partition at any time. Hence, the suit is not maintainable and liable to be dismissed.

4. The trial Court after full length trial dismissed the suit of the plaintiff with an observation that the defendant is able to establish that she has become the owner of the entire suit schedule property by virtue of oral hiba dated 12.01.2009 and the plaintiff is not entitled for partition and separate possession of the half share in the suit schedule property. Accordingly, both the issue Nos.1 & 2 were answered in favour of the defendant and against the plaintiff.

5. Feeling aggrieved by the judgment and decree of the trial Court, this appeal is filed by the appellant/plaintiff on the following grounds :

(i) that the trial Court erred in dismissing the suit filed by the appellant/plaintiff ignoring the oral and documentary evidence and failed to appreciate the evidence in deciding the issue relating to the oral gift;

(ii) that the trial Court has erroneously held that the defendant has established her plea of oral gift, even though she has failed to plead and prove the essential ingredients of oral gift as held by various High Courts;

(iii) that the trial Court has failed to take into consideration that one of the witnesses of the alleged