' C.M.A. No,11417 of 2009 (under Order XIV Rule 5 read with section 151, C.P.C.):---Application at serial number 2 having been dismissed as meritless and mala fide, the issue proposed in this C.M.A. At Serial (i) does not arise at all. It would be interesting to note that on one hand the defendant No,2 and the applicant in C.M.A. No,1672 of 2010 claims that the suit property was gifted by defendant No,1 to them, they being her real brothers; on the other, the defendant No,2 has raised an interesting issue that, "Whether the entire first floor and 6 shops on the ground floor of the suit property were constructed by defendant No,2 from his own money and in result whereof he acquired valuable ownership right in the first floor and 6 shops "on the ground floors of the suit property?" Comparing this proposed issue with the proposed Gift Deed dated 4-7-2004, the same does not fit anywhere and/or arise at all inasmuch as that such gift disclosed that the building along with 6 shops have been gifted by defendant No,1 to defendant No,2 and the applicant in C.P.A. 1627 of 2000. On the face of it, the C.M.A. Is mala fide and collusive to gain time. It is dismissed with cost of Rs,10,000.
2. C.M.A. 1672 of 2010 (under Order I Rule 10 r/w section 151, C.P.C.):---Through this C.M.A. One Syed Fayyaz Ali, son of Late Syed Ahmed Ali has prayed that he be impleaded as one of the defendants (defendant No,3) in the captioned suit inasmuch as according to him he is a necessary and proper party to the lis. As per the averments of the applicant a gift deed dated 4-7-2004 (annexure "A" to the application) was executed by the defendant No,1 in his favour, she being his real sister. Since the plaintiff has claimed right over the suit property by virtue of Sale Agreement dated 20-2-2006, and revised Agreement to sell dated 3-10-2006, he has to safeguard his interest after entering in to the litigation.
' Rebutting and resisting the C.M.A., the plaintiff altogether denied the claim of the applicant.
Argument was raised that the action on the part of the applicant is mala fide and to delay the progress Of the proceedings, which has reached evidence stage and that the evidence is being led before the commissioner. It was mentioned that though it is claimed that the suit property was gifted by defendant No,1 to the applicant as far back as on 4-7-2004, such applicant did not come forward in any of the litigation that was pending between the defendant No,1 and one of her brothers Syed Zahid Ali (defendant No,2) herein and other tenants of the suit property, and, therefore the very filing of the C.M.A. Was nothing but malicious. Such litigation, it was mentioned by the plaintiff was: Suit 1150 of 2004, filed by defendant No,1 and applicant's brother Syed Zahid Ali (defendant No,2) herein, Rent Case No,301 of 2006 filed by one Naved Ahmed against Afzal Ahmed and Syed Zahid Ali. [Naved Ahmed is a person who claimed that the defendant No,1 had sold the suit property through Afzal Ahmed in whose favour the defendant No,1 had executed general power Naved Ahmed also claimed to have registered sale-deed of the suit property in his favourt in Suit 1559 of 2006, filed by defendant. No,1 against Naved and Afzal], Rent Case No,373 of 2002 again filed by defendant No,1 against Mst. Saima Zahid, wife of Syed Zahid Ali (defendant No,2) and Suit No,94 of 2007 yet another suit filed by defendant No,1 against Haji Zangi Khan, the plaintiff herein. It was thus argued that the Gift Deed is a document created with connivance of the applicant and the defendants to perpetuate illegal gains.
' I have heard arguments and perused the record.
' Suit No,94 of 2007 is a suit filed by defendant No,1 against the plaintiff and is coming up along with this suit. Perusal of such suit would disclose that nowhere therein it was claimed by the defendant No,1 that the suit property was gifted by her to the present applicant and that by virtue of such gift, the plaintiff has no title or interest therein, [Suit property]. Prima facie it therefore appears that the C.M.A. Has been set up by the applicant at the behest and/or in league with defendant No,1 to further aggravate the situation in the suit and to delay its quick disposal.
' It would be seen that affidavit of the applicant, filed in support of this C.M.A. In paragraph 5 says, "That my brother Syed Zahid Ali who is defendant No,2 in the above suit has disclosed the fact of gifting the suit property by the defendant No,1 to we two brothers and has filed the copy of such gift deed along with his written statement". This disclosure by the applicant itself shows that one of the basic ingredient, "acceptance" of the gift was totally missing and the gift, alleged to have been made by defendant No,1 at no stage of time was accepted and/or perfected. Further Syed Zahid Ali, the defendant No,2 is a person who himself has filed various legal proceedings against defendant No,
1. In respect of the subject property and if the subject property was gifted in 2004, as claimed by the applicant to him and Syed Zahid Ali, then there was no incident available to Syed Zahid Ali to file cases against his sister, the defendant No,1, all of which, save one, had been initiated after in time than the date of Gift deed dated 4-7-2004. Under the circumstances, I find the C.M.A. Not only merit less but also to be mala fide, aimed at to further aggravate, confuse and complex the proceedings. It is dismissed with cost of Rs,10,000.