Whether gift of immovable property in muslim law will be valid even though no actual possession of property was given to donee?

 The courts below have held the gift to be invalid on the
ground that it was gift of undivided property which is capable
of division and was not covered by any of the exceptions to the
rule that gift of such property is irregular. It is submitted by
learned counsel for the appellant that the property is freehold
property in the city of Jaipur, which is a large commercial town.
This has been wrongly ignored by the courts below on the
ground that there was no pleading or proof to that effect.
Description of property mentioned in plaint and in the gift
deed itself shows that it is commercial property in the city of
Jaipur which is the capital of the State of Rajasthan and is,

thus, a large commercial town. Requirement of possession is
also met when right to collect rent has been assigned to the
plaintiff under the gift deed itself, genuineness of which stands
proved.
 We find force in the submission. The gift had no infirmity
under the Muslim Law either on the ground that the possession
was not delivered or on the ground that the gift was hit by
Hiba-bil-Musha. The gift was by father to his minor son.,
Property is under tenancy. The gift is by a registered deed.
Right to collect rent stands transferred to donee. The property
is located in the city of Jaipur which is mentioned in Para 2 of
the plaint as well as in the gift deed. The courts below are not
justified in not giving effect to the gift which has been held to
be genuine.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2845 OF 2006
KHURSIDA BEGUM (D) BY LRS. & ORS. 
VERSUS
MOHAMMAD FAROOQ (D) BY LRS. & ANR. 
Dated;FEBRUARY 1, 2016.

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Whether defendant can file appeal against adverse findings given against him even though suit filed against him is dismissed?

However, I am of the clear opinion that the learned Assistant Judge was wrong in holding that the defendant-tenant is estopped from raising the contention that he is a tenant of an open plot of land. In that behalf, it requires to be noticed that under section 11 of the Code of Civil Procedure, in order that the previous decision should act as res judicata, the issue must be shown to have been heard and finally decided. In the present case, it is relevant to notice that so far as the decision in Regular Civil Suit No. 298 of 1971 is concerned, ultimately, the suit was dismissed by order dated 21-9-1972 as against the present defendant-tenant. As such, any decision or a finding on a particular issue cannot be held to be finally decided qua the defendant-tenant as the defendant-tenant could not have appealed only against the finding. In my opinion, the position in law is absolutely clear and Mr. Gokhale is also justified in relying upon the judgement of the Apex Court in Deva Ram's case (supra) wherein in para 27, it is held that an appeal does not lie against mere 'findings' recorded by the Court unless the findings amount to a 'decree' or 'order'. Where a suit is dismissed, the defendant against whom an adverse finding might have come to be recorded on some issue has no right of appeal and he cannot question those findings before the Appellate Court. Inasmuch as the defendant could not have filed an appeal, the decision in the aforesaid Regular Civil Suit No. 298 of 1971 cannot act as res judicata and the decision of the learned Judge of the lower Appellate Court in that behalf is clearly wrong. 
Bombay High Court

Balu Mahadeo Randhir vs Nabilal Haji Habib Gadiwale And ... on 15 October, 1996

Equivalent citations: 1997 (2) BomCR 462, (1996) 98 BOMLR 803

Bench: V Tipnis

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Whether continuity of adverse possession will break if court delivers symbolic possession of that property to other side?

Even assuming that the grant of symbolic delivery of possession ought not to have been made and that the executing court acted illegally in making such an order, it cannot be argued that the executing court had no jurisdiction to make the order or that the act of symbolic possession was a nullity in the eye or law. I am, therefore, of the opinion that the grant of symbolic possession by the court in favour of Prakasalingam after notice to the defendants 2 to 5 was tantamount in law to delivery of actual possession and, therefore sufficient to break up the continuity of adverse possession in favour of the defendants. In AIR 1917 PC 197 it was held by Lord Sumner that symbolic possession was available to dispossess a party to the proceedings in which it was ordered and given. I am accordingly of the opinion that the suit of the plaintiff is not barred by limitation under Article 144 of the Limitation Act and the view taken by the High Court on this part of the case is not correct and must be overruled member and the Court cannot, on a mere application for execution by such purchaser, enforce his right by an order for partition. It was further held that no such order can be made under Section 318 of the Code of Civil Procedure and the dismissal by the Court of an application by the purchaser under S. 318 cannot be a bar to a suit by the purchaser for partition. Even assuming that the grant of symbolic delivery of possession ought not to have been made and that the executing court acted illegally in making such an order, it cannot be argued that the executing court had no jurisdiction to make the order or that the act of symbolic possession was a nullity in the eye or law. I am, therefore, of the opinion that the grant of symbolic possession by the court in favour of Prakasalingam after notice to the defendants 2 to 5 was tantamount in law to delivery of actual possession and, therefore sufficient to break up the continuity of adverse possession in favour of the defendants. In AIR 1917 PC 197, it was held by Lord Sumner that symbolic possession was available to dispossess a party to the proceedings in which it was ordered and given. I am accordingly of the opinion that the suit of the plaintiff is not barred by limitation under Article 144 of the Limitation Act and the view taken by the High Court on this part of the case is not correct and must be overruled.

IN THE SUPREME COURT OF INDIA

Decided On: 27.08.1965

Appellants:Mamidi Venkata Satyanarayana Manikyala Rao and Anr.
Vs.
Respondent:Mandela Narasimhaswami and Ors.

Hon'ble Judges/Coram:
A.K. Sarkar, Raghubar Dayal and Y.V. Chandrachud, JJ.

 Citation: AIR1966SC470, [1966]1SCR628

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Whether bonafide tenant has right to approach DRT under securitisation Act?

  Bearing in mind

the decision in Harshad Govardhan Sondagar (supra), in a case where the

aggrieved person claims to be or is a bona fide lessee or a tenant from whom

possession is yet to be taken over but a sale notice has been issued involving the

leasehold or tenanted property, different considerations would apply and even

without losing possession or handing over of possession of the portion of the

secured asset under lease or tenancy to the secured creditor, the lessee or the

tenant, as the case may be, being a non-borrower would have the right to

approach the tribunal no sooner the sale notice is issued in terms of the provisions

of Rule 8(6) of the Rules, and notwithstanding the decisions in V. Noble Kumar

(supra) and Mercury (supra). This, I hold, because V. Noble Kumar (supra) did not

have the occasion to deal with a grievance espoused by a person who claimed

himself to be a bona fide lessee or tenant and any observation made therein may

not apply to a non-borrower. If this right of the non-borrower is not recognized, he

shall be without a remedy.

 Consequently, I hold that the relevant tribunal having jurisdiction under Section 17

of the Act on being approached has a duty to consider the status of the party

approaching it to arrive at a considered opinion as to whether the application should be entertained or not. 

Kolkata High Court (Appellete Side)

S. Vision Comptech Integrators ... vs State Bank Of India on 20 June, 2014

Author: Dipankar Datta

Citation; AIR 2014 Calcutta 161

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Whether jurisdiction of court is to be decided on the basis of averments in plaint?

 It is a settled and an elementary rule of law that to see
whether a suit is between a landlord and tenant one must see the
Plaintiff's case from the plaint, whatever be the defence. The Plaintiff
is the dominus litis. It is for him to sue. It is for the Plaintiff to show
whether his suit is between him as the landlord and the Defendant as
the tenant for recovery of possession, for recovery of rent of any other
application under the Maharashtra Rent Control Act. 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
SUIT NO.2955 OF 2010

Shaikh Jaber Abdulah J AI Sabah Vs. Ravindra Mukund Chafe

CORAM : MRS. ROSHAN DALVI, J.

DATED : 19th December, 2013
Citation;2014(3) ALLMR 293 Bom

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