- (1.)Rasheeda Khatoon, the predecessor-in-interest of present appellants, instituted regular suit No. 31 of 1975 in the Court of Civil Judge, Faizabad, seeking recovery of possession from the original defendants. The case of original plaintiff before the trial Court was that one Abdul Haq was the owner of the house No. 2868 situated in Mohalla Hayat Ganj in Tanda, District Faizabad. The only son of Abdul Haq had shifted to Pakistan at the time of Partition and there was no one to look after him. The father of Rasheeda Khatoon, Hazi Madari, was a close friend of Abdul Haq, and being a neighbour, she was looking after him for last 20 years till 24.01.1972 when he breathed his last at the ripe age of ninety. Regard being had to various aspects and fruther being pleased with her services, 7 years prior to the institution of the suit he made an oral gift of the suit house in her favour which was accepted by her and possession of the house was also handed over. Pursuant to the oral gift she lived in the premises in question and looked after him. The tenants who had been staying in the southern portion of the house, accepted her status and started paying rent to her. Prior to a year of his death being apprehensive that some others might disturb in her possession, he executed a deed of gift in writing evidencing the oral gift made earlier in favour of the plaintiff. As pleaded, within one month from the death of Abdul Haq, the defendants dishonestly moved an application under Section 145 CrPC before the SDM, Tanda with an intention to evict the plaintiff and in the said proceeding the property in question was attached, and all these circumstances constrained the plaintiff to file the civil suit for declaration that she was the owner in possession of the house in question. During the pendency of the suit, as alleged, the defendants took over possession in pursuance of the release order passed by the SDM on 12.4.1975 and thereafter the plaintiff amended the plaint and sought the relief of recovery of possession.
(2.)The defendants entered contest and took various pleas to the effect that the suit was under-valued and the court fee that was paid was not sufficient; that Abdul Haq was in possession of the house till his death and never parted possession; that there was no oral gift as asserted by the plaintiff; that Khairulnisha, Kamrulnisha alias Kumul and Janharulnisha were the daughters of Abdul Haq; that Khairulnisha died during the life time of Abdul Haq and her sons Mohd. Ayub, Moyuddin, Mohd. Yasin, Sagir Ahmad and Bashir Ahmad were alive; that the defendant No.1 is the son of Jauharulnisha; that Abdul Haq died leaving behind Kamarulnisha, Jauharulnisha and sons of Khairulnisha as his legal heirs and they had become the owners; that during life time Abdul Haq had given certain properties to the son of the defendant No.2; and that after the death of Abdul Haq defendant No.2 had constructed a shop with the permission of the defendant No.1 on the condition that the shop shall be let-out to him. It was also asseverated that Jauhirulnissa had executed a sale deed on 8.3.1972 and Usman and Rauf executed a sale deed on 31.3.1972 in respect of the suit house in favour of the defendant Nos. 2 and 3 and since then the defendants no.2 and 3 had become the owners in possession; that the proceeding initiated under Section 145, CrPC was eventually decided in favour of the defendants; and that the plaintiff had no right, title and interest over the suit house; and that the defendants are the owners in possession of the suit property.
(3.)On the basis of the aforesaid pleadings, the learned trial Judge framed the following issues:-
"1. Whether plaintiff is owner of the disputed house as claimed in plaint

2. Whether defendant Nos. 1 to 3 are the owners of the disputed house as claimed in their written statement

3. Whether there has been an oral gift and subsequent writing evidencing this gift in favour of the plaintiff by Abdul Haq on 9.10.1970 as alleged in the plaint

4. Whether suit is under-valued and deficient in suit fees

5. Whether suit is not maintainable, as alleged in para no. 29 of the W.S.

6. Whether suit is barred by Section 34 of Specific Relief Act

7. To what relief, if any, is the plaintiff entitled in the case -