ORDER
1. By means of the present application, who is son of the defendant appellant, seeks the review of the judgment and decree of this Court passed in Second Appeal No. 1964 of 1980 on 16th of October, 1985.
2. Before dealing with the merits of the review application, it is necessary to mention that the suit was throughout contested by the father of the applicant Sri Ghulam Moham-mad, who was defendant in the suit and who unsuccessfully agitated the matter in the first appellate court and in second appeal in this Court. The applicant's father had also filed a review application against the judgment of this court passed in second appeal which was dismissed in the year 1986. The present application does not whisper that the father of the applicant has died. Thus it is clear that the present applicant has no right to challenge a decree passed against his father, who is very much alive. The review application on the alleged ground could have only been moved by the applicant's father. The applicant has not indicated in his application as to how he has an Undependent right to file a review application in a matter in which he was not a party. However, instead of rejecting the application on this ground alone, I propose to deal with the merit of the application itself.
3. The only ground for seeking review of the judgment and decree passed in second appeal as alleged in the application is that in the second week of April, 1994, the applicant received a document along with a covering letter from his grand mother, who was residing in Pakistan. The covering letter explains that the document was discovered by the grand mother of the applicant in the papers that had been taken away by her from India at the time of migration to Pakistan. On getting read the said document, she realised that the document is concerning the property at Agra and for this reason, she had sent the said document to the applicant. The applicant has filed the photostat copy of the document along with the letter of his grandmother received from Pakistan and the envelop in which the said letter has been received. The original document has not been filed.
4. According to the Hindi version of the said document, Sri Hakim Uddin Khan and Sri Fateh Mohammad Khan had executed a document wherein it is stated that one house situate at Sarjaypur Pargana and District Agra was purchased by them by sale deed, dated 5th March, 1923 for Rs.250/- only from Rahim Khan, son of Jama Khan, and they are the owners of the aforesaid house. It is further stated in the said document, that Sarvasri Sikandar Khan, Noor Mohammad Khan and Jan Mohammad Khan are their real brothers and are residing in the house, purchased by them, for last several years and since they are real brothers, the said house is being given to them by this agreement for the purpose that they may reside there and thereafter their heirs may reside there. Neither the executants nor their heirs will have any right over the said house. It is also stated that the agreement has been executed in their full sanses and proper health and without any intoxication in favour of Sikandar Khan, Noor Mohammad Khan and Jan Mohammad Khan. The document is dated 31st of July, 1929.
5. The aforesaid document is an unregistered document alleged to have been executed on a stamp paper of 8 annas.
6. The present applicant claimed that the said document has been executed By the executants in respect of the house in dispute in recognition of an oral gift and on the basis of the said gift deed, his father became the owner of the house and since the said document was not on the record, the suit of the plaintiff-respondent had been decreed taking the view that the defend ant-appellant was only a licensee of the house in dispute.
7. I have heard learned senior Advocate Sri Swami Dayal on behalf of the applicant in detail. The applicant's counsel has relied upon on a decision of Hon'ble Mr. Justice V. K. Krishna Iyer, as he then was, a Judge of Kerala High Court in Makku Rawther's Children Assan Ravther v. Manahapara Charavil, AIR 1972 Kerala 27 wherein it has been held that in view of Section 129 of the Transfer of Property Act read in the light of Part III of the Constitution, the provisions of Chapter VII of the Transfer of Property Act which includes Section 123 of the aforesaid Act will not be applicable to the gift made under the Mohammedan Law and as such the document did not require registration and is admissible in evidence.
8. I have given a careful consideration of the submissions made by the learned counsel for the applicant.
9. The document alleged to have been discovered can by no stretch of imagination be read either as a gift or adocument executed in pursuance of an oral gift made by a Mohammedan. The document clearly recited that by this agreement, the house in dispute has been given to Sikanar Khan, Noor Mohammad Khan and Jan Mohammad Khan. The document further recites that neither the executants nor their heirs henceforth will have any right over the property in dispute. The document is clearly an agreement by which the executants proposed to transfer the disputed house in favour of Sikandar Khan and others. Such a document clearly required registration and cannot be termed in any way either as a gift by a Mohammedan or a document executed as a recognition of a gift already made. There is no whisper of the word gift in the entire document. The contention to the contray made by the learned counsel for the applicant is misconceived. I am clearly of the view that the document required registration and is not admissible in its present form in evidence.
10. There is another aspect of the matter which may also be looked into. In the present case, the plaint allegations were that the plaintiffs father Fateh Mohammad was owner and in possession of the house of premises No. 2122/2570 (old), new 5/31, situate at Media Katra, Agra, Mohammad died leaving the plaintiffs as his sons and daughter legal heirs to the property, as such the plaintiffs became the exclusive owner in possession of the said premises. Plaintiff No. 1 Taj Mohammad Khan is in railway service. Plaintiff No. 3 Smt. Sabira Begum is married to Sri Ajmer and plaintiff No. 2 occupied a portion of the house which is the suit property. The defendant Sri Ghulam Mohammad (who is father of the present applicant) along with Sikandar Khan and Noor Mohammed Khan were alone in possession and occupation of the said premises as licensees to look after the premises in the absence of plaintiffs Nos. 1 and 3. About a year back of the date of filing of the suit, Sikandar Khan and Noor Mohammad Khan died and their licence automatically ended and the possession of the defendant remained that to a licensee but the defendant started quarrelling with plaintiff No. 2 and with the help of his supporter he fell out and turned out plaintiff No. 2 forcibly from the portion of the house in his possession and occupation in the first week of August, 1967, consequent thereto the plaitiffs filed the suit praying eviction of the defendant, who, according to the plaintiffs, was only a licensee.
11. The suit was contested by the defendant on the ground that the house in dispute is an ancestral property and the defendant had a right over it and the allegation that the defendant was only a licensee is incorrect. It was also asserted that the defendant alone has been residing in the house for more than last 12 years there by matured the right over the house in dispute by adverse possession.
12. All the three courts have concurrently held that the plaintiffs were the owners of the house in dispute and the defendant was occupying the house only in the capacity of a licensee. It has also been held that the house in dispute was throughout recorded from the year 1923 onwards showing the name of Fateh Mohammad alone.
13. According to the document filed along with the present review application, the house was given to Sikandar Khan, Noor Mohammad Khan and Jan Mohammad Khan. The defendant appellant is the son of Jan Mohammad Khan. There is no reason worth the name to believe as to why, if the property was given to Sikhadar Khan, Noor Mohammad Khan and Jan Mohammad Khan as far back as the year 1929, the name of Fateh Mohammad Khan, the father of the plaintiffs, continued to be recorded over the property in dispute. According to the applicant himself Jan Mohammad Khan, the father of the defendant appellant, migrated to Pakistan in 1947. If any document was executed in favour of Jan Mohammad Khar., there is no reason to believe that Jan Mohammad Khan would not have told it to his son the defendant-appellant Ghulam Mohammad who decided to continue to reside in the house and stayed in India, as such if by any stretch argument, the contention of the application's counsel that the document only recites an oral gift executed in favour of the aforesaid three persons, namely, Sikandar Khan, Noor Mohammad Khan and Jan Mohammed Khan is accepted, it is the requirement of even Mohammedan gift that the gift in favour of a donee will be valid only if the gift is accepted by the donee. If there would have been any acceptance of the alleged gift by Jan Mohammad, there is no reason to imagine as to why Jan Mohammad did not assert his right on the basis of the said gift during his stay in India and why the said property continued to be recorded in the name of the father of the plaintiffs.
14. Another aspect which required consideration in the present matter is that the suit was filed in the year 1967 and ultimately the decree was confirmed by this Court in 1985. As to why for such a long period Jan Mohammad the father of the defendant appellant did not disclose this important document to his son Ghulam Mohammad. This fact also belies the theory of the alleged gift executed in favour of Jan Mohammad. It has not been whispered in the application as to when Jan Mohammad died after his migration to Pakisthan and on this basis it is clear that even if the document is treated to be a gift or a document in pursuance of an oral gift executed in favour of Jan Mohammad, the father of the defendant appellant, there is no evidence worth the name to show that the said gift was ever accepted by Jan Mohammad and for this reason also, it is clear that there is no valid gift executed in favour of Jan Mohammad, the father of the defendant-appellant, and no rights will accrue in favour of the defendant-appellant on the basis of the said document which the learned counsel for the applicant claims to be document executed in pursuance of an oral gift.
15. In this view of the matter, I am of the opinion that the alleged document will have no bearing on the rights of the parties and the alleged discovery of the document, referred to and relied upon by the applicant, is only an effort to stall the execution proceedings in a suit instituted in the year 1967 and decreed as far back as in the year 1978.
16. The review application has no merits. However, it is surprising to note that the plaintiffs' suit was decreed in the year 1978 and the decree has been confirmed right up to this Court in second appeal which wsa decided as far back as the year 1985, still the said decree has not yet been executed and Execution Case No. 2 of 1986 is still pending. It is clear that the defendant is applying delaying tactics for avoiding the execution of the decree of the suit. There is no justification for keeping the execution matter pending for such a long time. Accordingly, I direct the III Addl. Civil Judge, Agra to dispose of the Execution Case No. 2 of 1986 as expediti-ously as possible but not later than three months of the receipt of the certified copy of this judgment. The Registrar of this Court is directed to send a copy of this judgment immediately to the III Addl. Civil- Judge, Agra for compliance of the order.
17. The review application is accordingly rejected. Since the opposite parties have not been issued notice, no cost is being awarded on the applicant.
18. Let the order be placed before Registrar of the Court immediately for compliance.
19. Application dismissed.