Judgment:
H.N. Sarma, J.
1. Being aggrieved by the judgment and decree of reversal passed in Title Appeal No. 13/1998 by the learned District Judge, Nalbari, dated 12.8.99, thereby allowing the appeal of the respondents and dismissing the suit of the plaintiff/appellant, the present second appeal is filed.
Heard Mr. D. Choudhury learned Counsel for the plaintiff/appellant. None appears on behalf of the respondents at the time of hearing. The pleaded case of the plaintiff, inter-alia, is that he having purchased a plot of land measuring 1 katha, 10 lechas vide registered sale deed No. 266, Exb-1 on 24.3.1981 from the defendant No. 3 Hazarat Ali, took over possession of the same and after about 7 years of enjoyment of possession over the suit land, the defendants dispossessed him from the suit land, which is the subject matter of dispute. Accordingly, the plaintiff having failed to get necessary declaration in the proceeding under Section 145, CPC, instituted the suit for declaration of right, title and interest over the suit land and for recovery of khash possession thereof.
2. The defendants contested the suit by filing written statement, denying the allegations made by the plaintiff. The defendants further submitted that the suit land originally belonged to Nurban Bibi and after her death it devolved upon her husband Ali Sheikh and 2 daughters viz., Aro Bibi and Nurjahan Bibi and 2 sons, Haibar Ali, defendant No. 2 and defendant No. 3, Hazarat Ali. It is further pleaded that the two daughters Aro Bibi and Nurjahan Bibi gifted their shares of 7 1/2 lechas in favour of defendant No. 2. It is also the case of the defendants that Ali Sheikh the husband if Nurban Bibi also gifted his shares in favour of the defendant No. 2. Thus the pleaded case of the defendant No. 2 is that Hazarat Ali acquired right over 15 lechas of land within the suit land. Other allegations made in the plaint have been denied.
3. Upon the pleadings of the parties the learned trial Court framed as many as 7 issues, out of which issue No. 4 is as follows:
4. Whether L. Ali Sheikh Mustt., Aro Bibi and Mustt Nurjahan acquired 30 lechas of land by way of inheritance from Nurban Bibi and donated the same to the defendant No. 2?
4. Both the parties adduced their respective evidences in respect of their claim both oral and documentary. At the end of the trial the learned trial court decreed the suit of the plaintiff disbelieving the gift of the property allegedly made in favour of the defendant No. 2. The defendants having challenged the decree, the decision of the learned trial Court was reversed by the learned District Judge, Nalbari against which the present second appeal is filed by the plaintiff. The appeal was admitted to be heard on the following substantial questions of law:
1. Whether an oral gift under Mohammedan Law without proving the handing over of possession and a acceptance can be treated as valid gift and any claim of title on that basis may exist?
2. Whether a stranger to the transaction of sale deed can challenge the sale deed as fraudulent due to non payment of consideration money?
3. Whether the learned District Judge's finding of fact as to taking presumption that it is there abundantly clear that Ali Sheikh, Aro Bibi and Nurjahan Bibi had inherited 10 lechas of land from Nurban Bibi and it was validly gifted to the defendant No. 2 Haibar Ali (Issue No. 4) is based on no evidence and perverse and whether the Issue No. 4 decided on the basis of such perverse finding of facts can stand on its legs legally?
5. Upon scrutiny of materials available on record in order to determine the substantial questions of law so framed in the suit, what is apparent from the judgment passed by the learned appellate court is that the learned appellate Court did not meet the essential requirements of the decisions that was rendered by the learned trial court, while reversing the decree.
6. The learned appellate court in reversing the findings on Issue No. 4 with regard to the gifted property pertaining to the suit land came to a finding that the gift should be proved by documentary evidences and I find that there is no basis to arrive at such findings. That apart the learned appellate court while accepting the alleged gift made by Nur Jahan and Aro Bibi did not at all consider whether such gift could be proved by the defendants through evidences either oral or documentary. On the other hand the materials available on record apparently does not satisfy the said test. However, there is no finding of the appellate court with reference to the evidences adduced in this case by the parties, nor the learned appellate court considered the essentials requirements of a valid gift under the Mohammedan Law in passing the impugned judgment. In this connection we may refer to the decision of the Apex Court rendered in the case of (Maqbool Alam Khan, Appellant v. Mst. Khodaija and Ors. Respondents reported in : [1966]3SCR479 wherein the Apex Court at paragraphs 7, 8, held as follows:
7. 'Previously, the rule of law was thought to be so strict that it was said that land in the possession of a usurper (or wrongdore) or of a lessee or a mortgagee cannot be given away, see Dorrul Mokhtar, Book on Gift, P. 635 cited in Mullick Abdool Guffoor v. Muleka (1984) ILR 10 Cal 1112 at P. 1123. But the view now prevails that there can be a valid gift of property in the possession of a lessee or a mortgagee and a gift may be sufficiently made by delivering constructive possession of the property to the donee. Some authorities still take the view that a property in the possession of a usurper cannot be given away, but this view appears to us to be too rigid. The donor may lawfully make a gift of a property in the possession of a trespasser. Such a gift is valid, provided the donor either obtains and gives possession of the property to the donee or does all that he can to put it within the power of the donee to obtain possession.' In Mahomed Bukash Khan v. Hosseini Bibi (1988) 15 Ind App 81 at P. 95 (PC) Lord Macnaghten said:
In this case it appears to their Lordships that the lady did all she could to perfect the contemplated gift, and that nothing more was required from her. The gift was attended with the utmost publicity, the hibbanama itself authorises the donees to take possession, and it appears that in fact they did take possession. Their Lordships hold under these circumstances that there can be no objection to the gift on the ground that Shahzadi had not possession and that she herself did not give possession at the time.
8. But a gift of a property in the possession of a trespasser is not established by mere declaration of the donor and acceptance by the donee. To validate the gift, there must also be either delivery of possession or failing such delivery, some overt act by the donor to put it within the power of the donee to obtain possession. If, apart from making a declaration, the donor does nothing else, the gift is invalid. In Macnaghten's Muhammedan Law, Precedents of Gifts, Case No. VI the question was:
A person executed a deed of gift in favour of his nephew, conferring upon him the proprietary right to certain lands, of which he (the donor) was not in possession, but to recover which he had brought an action, then pending, against his wife.... About a month after executing the deed, the donor died, and the donee, in virtue of the gift, lays claim to the litigated property. Under these circumstances is his claim, under the deed, allowable?
and the answer was that the gift was null and the claim of the donee was inadmissible. The precedent covers the present case. Najma did nothing after the alleged declaration. She did not even file a petition in Title Suit No. 127 of 1939 mentioning the gift and asking for the substitution of the appellant in her place. Had she filed such a petition and submitted to an order of substitution, she would have placed it within the power of the appellant to obtain possession of the property; but she did nothing. Nor did the appellant obtain possession of the property during her lifetime with her consent. The gift is, therefore, invalid.
7. Thus on perusal of the impugned judgment, I find that the learned trial court did not address its mind to the relevant materials available on record germane to the issue for reversing a decree passed by the learned trial court.
8. I am of the considered opinion that the learned trial court failed to exercise the power as provided under Section 107 of the CPC more particularly with reference to Order 41, Rule 33 CPC as interpreted by the Apex Court in the case of (Santosh Hazari, appellant v. Purushottam Tlwari (Deceased) By LRS. respondents) reported in (2001) 3 SCC 179.
9. In that view of the matter, the decisions made by the learned appellate court is not valid a decision in the eye of law and has been arrived at without exercising the provisions of law and accordingly the same stands set aside and quashed. The case is remanded back to the learned first appellate court for hearing afresh after giving necessary opportunities to parties on the basis of materials available on record, in the light of the discussions made above.
10. Registry is directed to transmit the LCR forthwith. The appellant shall appear before the learned appellate court to receive further instructions on 28.2.2007. The learned appellate court shall also issue notice to the respondents through his engaged counsel and dispose of the matter within a period of one month of the service of notice.
11. Since it is the suit of 1993, the learned appellate court is directed to dispose of the entire matter in accordance with law within a period of one month from the date of appearance of the parties, No costs.