IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 11.08.2021 CORAM THE HONOURABLE MRS. JUSTICE R.HEMALATHA S.A.No.850 of 2008 H. Chand Basha ...Appellant Vs.

1. Abdul Wahid 2. The Tahsildar Vaniyambadi

3. The Collector Vellore District Vellore ... Respondents P rayer: Second Appeal filed under Section 100 of CPC, 1908 against the decree and judgment dated 24.09.2007 on the file of the Sub-ordinate Court, Thirupattur, in A.S. No.58/06, upholding the decree and judgment dated 25.02.2005, on the file of the District Munsif-cum Judicial Magistrate Court, Ambur, in O.S. No.206/04. For Appellant : Mr. L. Prabakar For R1 : No appearance For R2 & R3 : Mr. Mr. M.R. Gokul Krishnan Government Advocate.

JUDGMENT

The unsuccessful plaintiff before both the courts below, has filed the present Second Appeal.

2. For the sake of convenience, the parties are referred to as per their ranking before the trial court.

3. The brief facts of the case of the appellant/plaintiff are as follows:

The suit property is the property of the appellant/plaintiff and the first respondent/defendant and their father executed a gift settlement deed (Hiba) dated 20.02.1986, through the original of Ex.A1 in favour of the appellant and his sister Dowlath Bi. The possession of the suit property was also handed over to them. However, the first defendant, in order to grab the suit property, created a cancellation deed dated 26.11.1986 cancelling the gift deed dated 20.02.1986. According to the appellant/plaintiff, the first respondent is attempting to get the mutation of records in his name and that as per Mohammedan law, the first defendant does not have any right over the suit property. He, therefore, prayed for the following reliefs.

1) a decree of declaration that the plaintiff and his sister Dowlath Bi are the absolute owners of the suit property by means of the gift settlement deed dated 20.02.1986.

2) for a mandatory injunction directing the respondents 2 and 3 to include the names of the plaintiff and his sister Dowlath Bi in the revenue records and

3) for costs.

4. The suit was resisted by the first respondent/defendant on the following grounds.

1) The appellant has filed the suit without disclosing the actual facts.

2) The settlement deed dated 20.02.1986 was cancelled on 26.11.1986 through a registered Cancellation deed. The father of the plaintiff and the first defendant earlier executed a settlement deed in favour of his first wife Bibijohn during the year 1981, who in turn executed a settlement deed in favour of the first defendant on 24.04.1997. By virtue of the said settlement deed executed by Bibijohn in favour of the first defendant, the first defendant became entitled to the suit property and patta was also issued in favour of the first defendant. The plaintiff did not raise any objection at the time of issuance of patta in favour of the defendant.

3) Neither the plaintiff nor his sister was in the possession of the suit property.

4) Since Dowlath Bi has not been impleaded as a party to the suit, the suit is bad for non joinder of necessary parties.

The first defendant, therefore, prayed for dismissal of the suit.

5. In the written statement filed by the second respondent/second defendant and which was adopted by the third respondent/third defendant, it is averred that they granted patta to the first defendant after perusing the various documents provided by the first respondent/appellant including the settlement deed dated 24.04.1997 executed in his favour and that the appellant/plaintiff did not raise any objection at the time of issuance of patta, They had, therefore, prayed for the dismissal of the suit.

6. The trial court, after framing necessary issues, dismissed the suit vide its decree and judgment dated 25.02.2005. The first appellate court also upheld the findings of the trial court vide its decree and judgment dated 24.09.2007. Both the courts concluded that the appellant/plaintiff did not adduce any acceptable evidence to show that the possession of the s