OF THE TRIAL JUDGE:- 9. The learned trial Judge found that there was no evidence, much less acceptable evidence to show that the deceased plaintiff was in possession and enjoyment of the property. The learned trial Judge was also of the view that there was no document to substantiate the contention that there was a gift in favour of deceased Abdul Rahim in the year 1955. Accordingly the learned trial Judge arrived at a factual finding that the property was never in possession and enjoyment of the deceased plaintiff and the suit was dismissed. It is the said judgment and decree which is impugned in the first appeal.
SUBMISSIONS:-
10. The learned counsel for the appellants would submit that as per Mohammedan Law it was possible for a Mohammedan to convey the property by way of gift, which is known as "Hiba" and there is no necessity to execute a formal document. Hiba is complete by delivery of possession of the property and as such the learned trial Judge was not justified in his conclusion that there was no document to substantiate the contention that there was "Hiba" in favour of deceased Abdul Rahim.
11. The learned Government Pleader supported the judgment of the trial Court and contended that the plaintiffs have miserably failed to prove their ownership and possession of suit property.
POINT FOR CONSIDERATION:-
12. The following point arises for consideration in the first appeal:-
Whether the plaintiffs have proved the oral gift in favour of the deceased plaintiff so as to give a cause of action to challenge the proceedings initiated by the first respondent invoking the provisions of the Pondicherry Land Reforms (Fixation of Ceiling on Land Act), 1973?
DISCUSSION:-
13. The suit was originally instituted by one Abdul Rahim. During the pendency of the suit he died and his legal representatives were impleaded as plaintiffs 1 to 8. It was the contention of the deceased plaintiff that there was a "Hiba" in his favour in the year 1955 whereby and whereunder the suit property was gifted to him by late Abdul Rahman, father of the second defendant. There was delivery of possession of the property and he has been cultivating the property ever since the gift. However very strangely the revenue records stood in the name of the alleged donor. There was no mutation at all till the initiation of the proceedings by the first defendant.
14. Though the legal representatives were brought on record, they have not appeared before the Court to give evidence. P.W.1 was examined to show that the deceased plaintiff was cultivating the property. Except the oral evidence of P.Ws.1 and 2 there was no acceptable materials before the Court to substantiate the contention of the plaintiffs that there was a gift in favour of deceased Abdul Rahim and there was also delivery of possession of the property and he has been cultivating the property on the strength of Hiba.
15. Except the interested testimony of the witnesses there was nothing on record to justify the contention that the property has been in the possession of the deceased plaintiff since 1955. The revenue records continued to be maintained in the name of the original owner. Therefore the plaintiffs miserably failed to prove the gift as well as the factum of delivery of possession of the property to the deceased plaintiff.
16. The learned trial Judge has considered the entire issue on the basis of the evidence and arrived at a conclusion that the property was never in the possession and enjoyment of the plaintiffs. There is nothing on record to take a different view in the matter.
17. According to the plaintiffs the gift was in the year 1955 and simultaneously there was delivery of possession of the property. It was their further case that the property was cultivated for all these years by the deceased plaintiff. However in the revenue records the person in possession of the suit property was none other than its original owner. The name of the deceased plaintiff was not seen in any of the revenue records. Even the legal heir of the deceased land owner has not supported the case of the plaintiffs. In the absence of evidence to prove the gift coupled with delivery of possession, it cannot be concluded that there was a valid gift in favour of the deceased plaintiff which is a pre-condition for excluding the land from the surplus proceedings. Therefore necessarily it has to be concluded that there was no gift in favour of the deceased plaintiff in the year, 1955. Accordingly the point is decided against the plaintiffs.
DISPOSAL:-
18. In the result, the judgment and decree dated 16.3.1994 in O.S.No.14 of 1990 is confirmed and the First Appeal is dismissed. Consequently, the connected CMP is closed. No costs.
Tr To
1. The Additional District Court, Pondicherry at Karaikal.
2. The Section Officer VR Section High Court Madras 104