JUDGMENT:

Challenging the validity and legality of the judgment and decree dated 26.12.2024 passed by the V Additional District Judge, Bodhan, Nizamabad district, confirming the order dated 29.01.2024 in E.A.No.72 of 2019 in E.P.No.27 of 2019 in O.S.No.23 of 2012 passed by the Senior Civil Judge, Bodhan, the present Second Appeal is filed.

2. The appellants herein are the petitioners/claim petitioners, respondent No.1 herein is the 1st respondent/DHr and respondent No.2 herein is the 2nd respondent/JDr before the first Appellant Court.

3. The facts of the case in brief, which led to filing of the present Second Appeal, are that the appellants are the sons of respondent No.2/JDr; that the mother of the appellants had orally gifted the petition schedule property in their favour on 01.01.2008 and they accepted the same and they are in possession and later, vide their mother/JDr executed a gift deed document Nos.2358/2012 and 2359/2012, dated 03.04.2012 in their favour in respect of the petition schedule property; that thereafter the relationship between the appellants and their mother was strained due to internal disputes.

4. It is further averred that on 23.08.2019 the respondent No.1/DHr came to the schedule property and threatened the appellants to dispossess them claiming that he filed a suit in O.S.No.23 of 2012 for specific performance of agreement of sale dated 29.01.2010 and obtained a decree on 26.06.2019 and obtained vide a sale deed from the Court document No.7326/2019 dated 24.06.2019 and he filed E.P.No.27 of 2019 dated 26.07.2019 for issuance of warrant of possession of schedule property mentioned in the decree in O.S.No.23 of 2012. It is further averred that prior to entering into an agreement of sale dated 29.01.2010, their mother had orally gifted the petition schedule property to them and their mother never executed any agreement of sale dated 29.01.2010 in favour of respondent no.1/DHr, which is a created one to grab the schedule property. In those circumstances, petitioners constrained to file E.A.No.72 of 2019 in E.P.No.27 of

2019.

5. Respondent No.1/DHr filed counter affidavit before the lower Court denying the averments made in the application and contended that he purchased the schedule property from the respondent No.2/JDr under an agreement of sale and as she failed to execute a sale deed, he had filed the suit and it was decreed and later, he filed E.P.No.119 of 2024 and obtained a registered sale deed in respect of the schedule property. It is further averred that respondent No.2/JDr contested the suit and filed her written statement and in the written statement, she did not plead that the schedule property was orally gifted to her sons; that he filed I.A.No.92 of 2012 under order XXXIX Rules 1 and 2 CPC, seeking temporary injunction not to alienate the schedule property and obtained injunction order and the same was served on the respondent No.2/JDr on 28.03.2012; that immediately thereafter, respondent No.2/JDr executed two gift deeds dated 03.04.2012 in favour of their sons showing wrong boundaries intentionally to protract the suit proceedings and the said gift deeds are not binding on the respondent/DHr.

6. During the course of enquiry, on behalf of petitioners, Pws.1 to 5 were examined, Ex.A1 to A8 were marked. On behalf of respondent No.2/JDR, Dws.1 and 2 were examined and Ex.R1 & R2 were marked. On behalf of respondent no.3/DHr, he himself was examined as RW.3 and marked Exs.R3 to R7.

7. The trial Court, on due consideration of oral and vide documentary evidence and the contentions of both the parties, order dated 29.01.2024 dismissed the claim petition and observed as under:

“22. … The conditions required for oral gift are not fulfilled. There are several circumstances which has come on record to infer the said fact, which are as follows: i) the JDr never referred about the oral gift in the suit proceedings, ii) Ex.R1 which is the judgment and decree in OS No.23/2012 is silent on this aspect; iii) E