CAV JUDGMENT

The defendant No.2 in O.S.No.5208/2011, on the file of learned XXX Addl.City Civil & Sessions Judge, Bengaluru City, (CCH-31), (for short `trial Court’), has filed this appeal challenging the judgment and decree dated 21.12.2018 passed in the said suit.

2. The parties are referred to as per their ranks before the trial Court.

3. It was the case of the plaintiffs that plaintiffs and defendants are children of late Syed Ibrahim and Smt.Mahboob Bee. The suit schedule property was allotted to Syed Ibrahim by City Improvement Trust Board (for short, `CITB’), presently Bengaluru Development Authority (for short, `BDA’), on 26.05.1964 and thereafter, he had been in possession and enjoyment of the suit property along with his wife and children. Syed Ibrahim died intestate on 30.04.1985 leaving behind his wife, three sons and five daughters. Smt.Mahboob Bee also died intestate on 07.03.2007. The parties are governed by Mohammedan Law. After the death of parents, plaintiffs and defendants continued in peaceful possession and enjoyment of the suit property as tenants-in-common. During the life time of their father, he put up further construction on the existing building in the suit schedule property to accommodate all his sons and daughters to continue in possession of the suit property. The plaintiffs sought for partition and separate possession of their share in the suit property, however, defendant No.2 did not agree for the same and hence, they filed the suit for partition.

4. Except defendant No.2, other defendants more or less supported the case of the plaintiffs and they also sought for partition and separate possession of their respective share in the suit property.

5. The contention of defendant No.2 was that the suit schedule property was the absolute property of Syed Ibrahim. Defendant No.2 has not disputed the relationship between the parties. According to his contentions, Syed Ibrahim gifted the suit property in his favour on 24.07.1984 and handed over possession of suit property to him and executed Ex.D-13. By virtue of the said Gift, he became the absolute owner and in possession of the suit property. He had spent lot of money for reconstruction of the building in the suit property. He had given financial assistance to all the members of the family i.e., parties to the present suit and also spent his own earning for performing their marriages.

Considering all these financial assistance given by defendant No.2, his father gifted the suit property in his favour. Plaintiffs and defendants are not tenants-in-common to suit property. They have no right over the suit property and prayed to dismiss the suit.

6. From the rival contentions of the parties, the trial Court framed necessary issues.

7. The plaintiffs to prove their case examined PW-1 and got marked Exs.P-1 to P-8. Defendant No.2 to prove his case, examined himself as DW-1 and one witness as DW-2 and got marked Exs.D-1 to D-68. Other defendants have not led evidence.

8. The learned trial Judge after hearing both parties and appreciating the evidence available on record, answered issue No.1 in the affirmative, issue Nos.2 and 3 in the negative and issue No.4 partly in the affirmative and granted the relief sought for by the plaintiffs. The trial Court held that execution of Gift Deed was not proved. Both the parties to the suit are entitled for partition and separate possession of their share in the suit property.

During pendency of the appeal, the appellant has filed I.A.No.2/2019 under Order LXI Rule 27 of CPC seeking production of additional evidence.

9. I have heard the arguments on appeal and IA.No.2/2019 and perused the materials on record.

10. There is no dispute regarding genealogy of the family. Suit property was belonging to Syed Ibrahim is also not in dispute. Renovation of the house is also not in dispute. During the course of trial, it is not seriously disputed that plaintiffs and some of defendants are in possession of portion of suit property. The main