1. These two appeals are connected and arise out of two suits brought by two sets of plaintiffs against the same defendants, in respect of a small plot of land which is an open piece of ground neither enclosed by any boundary wall nor even enclosed by any hedge or ditch. This is a part of the joint lands in the mahal and was apparently solely used by Mohammad Zia about 1922 when on 13th February 1922 he executed a deed of gift in favour of the defendant Mt. Jamilunnissa, who was a relation of his, and got the same document duly registered. In the deed he expressly declared that he had on that day delivered possession of the property to the donee, who had accepted the gift and taken possession, and that after that date he would have no concern with the property so gifted. Up to April 1929 Mohammad Zia did not take any steps to get the deed of gift cancelled, nor even served any notice on the defendant informing her that the gift had been revoked by him. About that time the defendant appears to have started making some constructions on this plot and while the constructions were going on a notice was sent by Mohammad Zia on 2nd April 1929 to the defendant informing her that possession had never been delivered by the donor and that accordingly the deed of gift was null and void and that she had no right to make any constructions on the land. This was followed by Suit No. 140 of 1929, out of which Second Appeal No. 1267 of 1933 has arisen. The case put forward by the plaintiff in the plaint was that he had executed the deed of gift in respect of this plot, but that there had been no change of possession at all and that the gift was altogether invalid and that the plaintiff had revoked it. There was no suggestion in the plaint that the plaintiff was a Shia or that the rights of the parties were governed by the Shia law. The defendant, on the other hand, denied that possession had not been delivered, and further pleaded that she had made an oral gift to defendant 2 and that they had spent some money in making constructions on the land. The oral gift has not been proved and does not arise for consideration.
2. Another suit was brought by some of the other co-sharers in the mahal against the defendants for joint possession of the land by demolition of the constructions made on this land. Their case was that the defendants had no rights to build on joint land. The defence was that the defendants' predecessor Mohammad Zia had been in exclusive possession of this plot, with which the other co-sharers had no concern, and accordingly the defendants had the right to put up a building on this plot. The trial Court dismissed the donor's claim on the ground that the defendants' predecessor had been in exclusive possession of the land and had spent money on the constructions and so the gift could not be revoked. It, however, decreed the suit, No. 476 of 1929, which had been brought by the other co-sharers. On appeal the lower appellate Court has decreed Mohammad Zia's suit, but dismissed the other suit.
3. The learned Judge has not found that the deed of gift was a fictitious transaction, without there having been any intention to transfer the property at all. He has held that the gift was invalid because there was no complete delivery of possession by the donor to the donee and that this defect was fatal. It seems to us that he has overlooked the various matters which had been pointed out by the trial Court. It was not a case of any oral gift, but the transfer was effected by means of a document which was duly registered. In the deed the donor not only stated that he had gifted the property to the donee, but also proclaimed that he had delivered possession of the property to the donee with effect from that date. It is found that the donor was a co-sharer in the village and owned only a fractional share in this plot, although he was in exclusive possession of it. It is also found that the donee was a co-sharer in the village and was entitled to a fractional share in this plot, although she was not in actual possession of it at the time. The land was not culturable land but was merely a sort of building site. It was not enclosed in any way. There was no tenant occupying it at the time who could be asked to pay rent to the donee. In these circumstances, it could not be expected that the donor would do more than declare publicly that he had gifted the property and had delivered possession to the donee. The donee being a co-sharer from before was in one sense in constructive possession of the plot, as Mohammad Zia was not in exolusive possession of it, and accordingly the delivery of possession to her would only be symbolical, as the land was not capable of physical possession. Although in order to make the gift complete, delivery of possession is necessary under the Mahomedan law, Actual possession is not necessary. All that is required is that steps should be taken to place the donee in a position to take possession effectively and invest her with authority for that purposes, Actual possession is not necessary where the property gifted is not capable of being possessed physically. It has been contended before us that the donor should have taken the donee to the spot and pointed out the land to her and informed her that possession was delivered to her. As the donee was a pardanashin lady and was a relation of the donor, it was not at all necessary that she should have been actually taken to the spot so that the place might be pointed out to her. There was really nothing more which could have been done, and it is therefore unreasonable to expect that the donor would have done anything more. We think that the admission made by the donor that possession had been delivered is binding on him, and even if it does not amount to estoppel it certainly throws a heavy burden on the donor to show that the statement was untrue and was false. In Muhammad Mumtazahmad v. Zubeda Jan (1889) 11 All. 460. their Lordships of the Privy Council laid down that the declaration of the donor that possession had been delivered to the donee made in the registered deed of gift was binding on his heirs. This was further emphasized by their Lordships in Musa Miya v. Kadar Box A.I.R. 1928 P.C. 108, as also in Mohammad Sadiq Ali Khan v. Fakr Jahan Began .
4. All that the donor attempted to show was that at the time of some Magh Mela he realized rents from some carts and booths which used this plot. The deed of gift was executed in February 1922 and the next Magh Mela could not have taken place earlier than January 1923. It is not certain that he realized any rents in the first few Magh Melas. It may also be difficult to locate the place where these carts stopped, because it is in evidence that Mohammad Zia owned considerable property in the village and had other lands in the neighbourhood. In any case, this sort of fugitive possession which the donor might have obtained sometime later would not be sufficient to discharge the burden of showing that the declaration made by him in February 1922 that possession had been delivered was false. The land being an open piece of ground, indeed waste land, possession should be deemed to have passed to the donee when the donor announced that he had delivered possession to her, as the donee was a co-sharer. After possession had been delivered the gift could not be revoked under the Hanafi law. It has been urged before us that the donee was a Shia and. the plaintiff himself might have been a Shia. But this was not the plaintiff's case in the plaint and there is no suggestion in the evidence which has been brought to our notice or in the judgments of either of the Courts below that the plaintiff was a Shia. In the absence of any such allegation or proof, it must be presumed that he was a Sunni and therefore governed by the Hanafi law. Furthermore, there is no proof that there was any revocation of this gift by the express intimation to the defendant prior to 2nd April 1929 when the notice was served on her; but this was after the constructions had already started and some money had already been spent on the erection. It might also be that the value of the land had increased during the period which had intervened since the gift. The plaintiff, therefore, had no right to revoke the gift.
5. But the character of the possession of Mohammad Zia was of a limited extent. He was merely using the land as an open piece of ground and possibly allowing booths of a temporary character to be put up on the place and carts to stand there. He had never enclosed it completely so as to oust the other co-sharers and vest the land in himself to such an extent as to entitle him to deal with it in any way he liked, for example, by building a house on it. It has been held by a Letters Patent Benoh in Shankar Lal v. Pati Ram : AIR1937All293 , that if the construction put upon joint land is of such a character as to amount to a permanent structure or, at any rate, of such a character as to give exclusive possession to one co-owner to the ouster of the other co-sharers then such exclusive possession is not justified and can be objected to by the other co-sharers; while if one co-owner occupies a piece of joint land not occupied by the others, by having some temporary structure or construction on it, there would be no ground for objection because the structure is of a temporary character only. The construction of a permanent building on a plot of land which had been in the exclusive possession of one co-sharer would amount to changing the character of possession very materially and to a complete ouster of the other co-sharers. This, without t their consent, is not allowable. The learned advocate for the donee relies on the case in Mt. Lahaso kuar v. Mahabir Tiwari A.I.R. 1915 All. 330 and contends that where one co-sharer is for many years in exclusive possession of a plot and makes constructions thereon, the presumption is that he is in possession with the consent of the other co-sharers. No doubt in that case it was held that the plaintiff was not entitled to have the constructions demolished; but a reference to the paper-book shows that the constructions in that case were found to have been more than 12 years old. It was therefore presumed that they had been made with the consent of the other co-sharers. We do not think that that case is any authority for the proposition that where a construction is made without the consent of the co-sharers and is objected to immediately, such construction cannot be ordered to be demolished. A learned Single Judge of this Court in Sheo Harakh v. Jai Gobind : AIR1927All709 , pointed out that even though it be found that the land built on has been in the exclusive possession of the person erecting the building, a mandatory injunction should be granted where the erection is of recent date and has been objected to from the beginning, the principle to be applied being whether the erection of the building is in keeping with the method of exclusive possession hitherto enjoyed by the co-owner. This case was approved of by another learned Judge of this Court in Makhan Lal v. Sajun : AIR1933All655 . We therefore think that the defendants are not entitled to put up constructions of a permanent character on this land without the consent of the other co-sharers. The result therefore is that the suit of Mohammad Zia is dismissed against the defendants with costs in all Courts. The claim of the other co-sharers for joint possession against the defendants is dismissed, but the claim for an injunction restraining the defendants from building any constructions of a permanent character on this land and for the demolition of the permanent constructions already put on the land is decreed. These co-sharers will bear their own costs and not be called upon to pay the costs of the defendants in their suit.