Himachal Pradesh High Court
Shri Gian Chand vs Coram on 8 August, 2018
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 236 of 1999.
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Reserved on : 31st July, 2018.
Decided on : 8th August, 2018.
Shri Gian Chand .....Appellant/Plaintiff.
Versus Coram:
r to Sh. Keshav and others .....Respondents/Defendants.
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1 Yes.
For the Appellant: Mr. Anand Sharma, Advocate. For Respondents No.1 to 5: Mr. Anup Rattan, Advocate.
For Respondent No.6: Ms. Megha Kapoor Gautam, Advocate.
Sureshwar Thakur, Judge.
Both the learned Courts below, under, concurrent verdicts, dismissed, the plaintiff's suit for rendition of a declaratory decree, and, also declined, to render hence a decree for permanent prohibitory 1 Whether reporters of the local papers may be allowed to see the judgment?
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injunction, vis-a-vis the suit land. The aggrieved thereupon plaintiff hence prefers the instant Regular Second Appeal before this Court, and, a coordinate bench of this Court, on 14th June, 2010, had reversed the concurrently recorded verdicts, pronounced, by both the learned Courts below. The aggrieved preferred Civil Appeal No. 11059 of 2017 before the r defendants, Hon'ble Apex Court. The aforesaid Appeal stood allowed by the Hon'ble Apex Court, on anvil, of, a co-ordinate bench of this Court, without any substantial question of law being formulated, vis-a-vis, the apt gift deed, its rather proceeding to record findings in respect thereto, whereupon, this Court stands re-seized, with, the instant Regular Second Appeal, after the Hon'ble Apex Court, making a direction for its being reheard, after, this Court/ hence/ formulating, an apt substantial question of law, appertaining to the validity, of, the apt gift deed. This Court, under, orders pronounced, on 26.02.2018, framed, ::: Downloaded on - 14/08/2018 22:58:18 :::HCHP ...3...
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a substantial question of law, hereafter occurring, at, Sr. No.1, besides this Court on 31.07.2008, upon, a conjoint prayer made before this Court, by the learned counsel appearing, for the respective litigants, framed, a, substantial question, of, law, hereinafter occurring, at Sr. No.2:-
1. Whether the gift can be held void until or unless any condition has been held to be not complied with or without bringing on record any of the evidence in this respect?
2. Whether the tenancy can be held on the basis of the oral evidence, when there exists no documentary evidence in respect of gala batai, or qua rent paid at any point of time, vis-a-vis, Hardei?
2. Briefly stated the facts of the case are that the plaintiffs filed a suit for declaration that they were owners in possession of 13 bighas 8 biswas land being 7/20 th share of 38 bighas 6 biswas land, which was owned and ::: Downloaded on - 14/08/2018 22:58:18 :::HCHP ...4...
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possessed by late Smt. Hardei. They pleaded that said Smt. Hardei was their father's sister and that she executed a gift deed, in respect of her share in the suit land, in their favour on 23rd December, 1985 and got that deed registered with the Registrar of Documents, on 1 st January, 1986. It was stated that said Hardei died in the year 1991 and after her death, the defendants without any right, title or interest in the suit land, started interfering in their possession. Besides seeking a decree of declaration, in the aforesaid terms, they sought issuance of permanent prohibitory injunction restraining he defendants from interfering in their possession over the above described land. They further pleaded that in case they were dispossessed by the defendants, decree for possession be passed in their favour.
3. The defendants contested the suit and filed written statement. They claimed that defendant NO.1 Keshav had been inducted as tenant on the suit land by ::: Downloaded on - 14/08/2018 22:58:18 :::HCHP ...5...
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Hardei some 15-16 years prior to her death and that ever since he had been in possession as tenant and was paying rent, in kind, by sharing the produce of the land with said Hardei, to the extent of 1/4th. It is also stated that even if it is not proved that Shri Keshav had acquired title of ownership in respect of the suit land on the basis of tenancy, even then he had acquired title of ownership in respect of the suit land by way of adverse possession much prior to Smt. Hardei executing the gift deed in favour of the plaintiffs, and, as such, the gift is illegal and void. Apart from this, the defendants have taken various preliminary objections.
4. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:-
1. Whether the gift deed registered on 1.1.1986, executed by deceased Smt. Hardei in favour of plaintiffs is valid as alleged?OPP.::: Downloaded on - 14/08/2018 22:58:18 :::HCHP
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2. Whether mutation No.174 dated .
13.5.1989 attested in favour of the defendants No.1 is wrong, illegal and not binding upon the rights of the plaintiffs as alleged?OPP.
3. Whether the suit of the plaintiff is not maintainable in the present form as alleged?OPD.
4. Whether the plaintiff is estopped from filing the present suit on account of his act and Conduct as alleged?OPD.
5. Whether the plaintiff does not have any cause of action,a s alleged?OPD.
6. Whether defendant No.1 was a tenant over the suit land and had acquired proprietary rights over the suit land, as alleged?OPD.
7. Whether the suit of the plaintiff is time barred, as alleged?OPD.
8. In case of tenancy of the defendant over the suit land is not proved, whether defendant No.1 has become owner of the suit land by way of adverse possession, as alleged?
9. Relief.
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5. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the plaintiffs/appellant herein. In an appeal, preferred therefrom, by, the plaintiffs/appellant herein, before the learned First Appellate Court, the latter Court dismissed, the, appeal, to and, recorded by the learned trial Court.
r affirmed the findings
6. Now the plaintiff/appellant herein, has
instituted the instant Regular Second Appeal, before, this Court, wherein he assails the findings, recorded in its impugned judgment and decree, by the learned first Appellate Court.
Substantial questions of Law No.1 and 2:
7. One Hardei, at the time of institution, of, the suit, was, thereat no longer surviving. She, on 23.12.1985, under Ex.PW3/A, gifted the suit property, vis-a-vis, the plaintiff Kehsav. Ex.PW3/A is a registered document. A perusal of the recitals, borne in Ex.PW3/A, ::: Downloaded on - 14/08/2018 22:58:18 :::HCHP ...8...
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underscore, (a) the factum of the donor, out of the love and affection, hence, gifting the suit property, to, the plaintiff, (b) also it carries recitals qua her in contemporaneity, to the execution, of, the apt gift deed, rather delivering possession of the suit property to the donee.
Section 122 of the Transfer of Property Act defines "Gift". The essentials ingredients of a valid gift are:-
I) There must be a transfer of ownership of a property;
ii) the property should be of existing property;
iii)The transfer should be voluntary;
iv)It shall be without consideration;
v)It can be of movable or immovable property;
vi)The transfer should be accepted by the Donee from the Donor;
vii) The acceptance of the transfer must be during the life time of the donor and he must be still capable of giving. In the event of the donor dying before acceptance, the gift is void.
Section 123 of the Transfer of Property Act, deals, with the mode of transfer. It lays that "for the purpose of ::: Downloaded on - 14/08/2018 22:58:18 :::HCHP ...9...
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making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses", requirements whereof, for reasons assigned, hereainafter, are satiated by Ex.PW3/A.
8. It appears on reading of the averments borne in the plaint qua the defendants interfering, in, the plaintiff's possession, vis-a-vis, the suit khasra numbers,
(a) and, thereupon, the plaintiff being constrained, to, on anvil of Ex.PW3/A, institute a suit for his being declared, as owner of the suit land, besides he therein espoused rendition, of, relief of permanent prohibitory injunction, vis-a-vis, the suit land, and, against the defendants. The defendants instituted a written statement to the plaint, and, therein they omitted, to, contest the factum, of, valid execution, of Ex.PW3/A, (b) rather they proceeded to contend qua deceased Hardei, during her life time, inducting them as tenant, on, galla batai, vis-a-vis, the ::: Downloaded on - 14/08/2018 22:58:18 :::HCHP ...10...
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suit land, (c) and, theirs contending qua hence automatic statutory vestment, of proprietary rights, vis-a-vis, the suit khasra numbers, rather accruing, vis-a-vis them. In sequel the defendants contended qua with automatic conferment, of, proprietary rights, on anvil aforesaid, rather ensuring qua them, (d) thereupon, the deceased Hardei standing disempowered, to execute, vis-a-vis, her estate, any registered gift deed, as, borne in ExPW3/A. Apart from the aforesaid, a contention, stood, reared by the defendants, in the written statement, for, hence ousting the plaintiffs' espousal, as, visibly bedrocked upon Ex.PW3/A, and, stands founded upon, qua, theirs by adverse possession, hence, acquiring title vis-a-vis the suit khasra numbers.
9. Both the learned Courts below, had, rested firm conclusions qua the defendants, adducing cogent evidence, for, theirs hence proving the aforesaid contention(s) reared by them, in, the written statement.
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The evidence, as stood, concurrently meted credence, by both, the learned Courts below, stands, comprised (i) in the deposition of the defendant, and, in the corroborative thereto testifications, rendered by DW-2, and, by DW-3.
The meteing of credence thereto, by both the learned Courts below, is rather inapt, (ii) given DW-1 in his testification, rendering echoings qua deceased Hardei, during her life time, and about 18 to 20 years, prior, to, his making, his testification rather, inducting him, as a tenant on galla batai, vis-a-vis, the suit kahsra numbers,
(iii) whereas, with his, in his cross-examination, rather admitting, an, apt suggestion qua no scribings in respect thereto, and, in contemporaneity thereof, rather being prepared, and, his also omitting to place on record the apt revenue record, with, displays occurring therein, qua, his being reflected therein, as a gair maurusi, on payment of galla batati, vis-a-vis, Hardei. Even the deposition(s) in corroboration thereto, rendered by DW-2 ::: Downloaded on - 14/08/2018 22:58:18 :::HCHP ...12...
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and DW-3, are likewise infirm, (iv) given DW-2, during his cross-examination, rather acquiescing to a suggestion qua his being closely related to defendant Keshav, thereupon, his testimony is stained, with, vices of gross interestedness, whereupon, his testimony, is, hence rendered discardable, (v) besides even otherwise his testification, loses its corroborative vigour, vis-a-vis, the testification rendered by DW-1, given, his in his cross-
examination making echoings qua in contemporaneity, of, the deceased Hardei inducting, one Keshav as a tenant, on payment of galla batai, vis-a-vis the suit land,
(vi) qua thereat 4 to 5 persons, amongst whom he named Janta and Lochi, rather being present, and, his omitting to name therein DW-3. Contrarily, when DW-3 stepped into the witness box, he though echoes therein, qua, in contemporaneity with the deceased Hardei, inducting one Keshav as ,a, tenant on payment of galla batai, vis-a-
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Bhansu, and, Chanalu also recording their presence, whereas, obviously hence he omitted to name therein both Janta and Lochi, latter whereof,however stand named by DW-2, to be present at the relevant time.
Consequently, the effect thereof is qua, the, factum, of, oral induction of Keshav, as a tenant on payment of galla batai, vis-a-vis, the suit khasra numbers, by deceased Hardei, about 18 to 20 years prior to DW-1 rendering his testification, is, rendered incredible, besides concomitantly the deposition, in corroboration thereto, rendered by DW-2, and, by DW-3 also stands falsified.
More so, when both DW-2 and DW-3 unfolded inter se contradictions, vis-a-vis, the place whereat, the relevant talks occurred, in as much as, DW-2 makes a disclosure qua the relevant oral agreement hence occurring at Hardei's house, whereas, DW-3 testifying, qua it, occurring at Keshav's house, (vii) imperatively hence, the afore rendered testifications, lose their apt vigour, ::: Downloaded on - 14/08/2018 22:58:18 :::HCHP ...14...
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importantly when no revenue entries, for meteing corroboration thereto, with, clear display(s) therein qua the defendants being reflected as tenant, on galla batai, vis-a-vis, the suit kahsra numbers, obviously rather remain unadduced.
10. appearing Be r that for as the to it may, the learned defendants/respondents, counsel has, contended with vigour (a) that with Ex.PA, exhibit whereof comprises, an order, recorded by the Revenue Officer concerned, on 13.05.1989, hence four years, subsequent, to, the execution of Ex.PW1/A, (b) and, with its making clear pronouncement(s) therein qua the donor, one Hardei recording her presence, before the Revenue Officer concerned, and, hers making a statement, in denial of execution of Ex.PW3/A, (c) hence, with, the order borne, in Ex.PA, being, apparently made during the discharge, of, official duty(ies) by a public servant, hence, a presumption of truth is enjoined to be imputed qua it, ::: Downloaded on - 14/08/2018 22:58:18 :::HCHP ...15...
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and, per se, thereupon, the valid and due execution of Ex.PW3/A, by Hardei, is, ipso facto rather repudiated.
Also he proceeds, on anvil thereof, to contend (d) that the plaintiffs failing to prove the factum, of, valid and due execution, of Ex.PW3/A, by one Hardevi, (e) besides he proceeds to contend, that, with also voicings occurring therein, in display of Hardei 15 years prior thereto, inducting one Keshav, as a tenant, on payment of galla batai, vis-a-vis, the suit kahsra numbers, (f) thereupon dehors any scanty evidence inr espect thereof existing on record, rather ipso facto, hence, the defendants, firmly, proving qua theirs being inducted, as tenants on galla batai, by deceased Hardei, vis-a-vis, the suit kahsra numbers. However, for the reasons to be ascribed hereinafter, the aforesaid contention cannot be accepted by this court, (i) as the defendants in their written statement, do not rear, any pleadings/contentions therein, vis-a-vis, Ex.PW3/A wanting in legal validity, ::: Downloaded on - 14/08/2018 22:58:18 :::HCHP ...16...
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given its being stained with pervasive vices of fraud, misrepresentation, and, undue influence being exerted, upon, one Hardei, by the plaintiffs, (ii) whereas, rearings, of, the aforesaid pleadings, was imperative, and, adduction of cogent evidence, in consonance therewith, was, also of utmost significance, for nailing a firm conclusion qua Ex.PW3/A being proven, to stand not, executed by deceased Hardei. Contrarily, want of rearing of the aforesaid pleadings, and, also want of adduction of cogent evidence, in consonance therewith, (iii) rather gears an inference, qua Ex.PW3/A rather being acquiesced, to be validly and duly executed, dehors, the afore referred presumption, of, truth hence enjoyed by the order borne, in Ex.PA. (iv) Furthermore, with Ex.PW3/A being a registered gift deed, and, it also carrying thereon, apt endorsements made by the registering officer concerned, with, clear, and, trite unfoldings therein, (v) qua, the registering officer, after ::: Downloaded on - 14/08/2018 22:58:18 :::HCHP ...17...
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explaining all the recitals borne therein to its executant, and, also after his ensuring, qua its executant, understanding all the contents, as, borne in Ex.PW3/A, his proceeding, to, make an apt concurrent therewith endorsement, and, his also ensuring, qua, the apt executant one Hardei, appending thereunderneath, her right thumb impression, (vi) hence, unless the aforesaid apt endorsements, made by the Registering Officer, stood, concerted to be shred of its veracity or efficacy or unless evidence stood adduced qua the right thumb impression, appended underneath, the apt endorsements, by one Hardei, being forged, thereupon, an apt probative vigour, was enjoined to be meted vis-a-
vis, the apt endorsement, made by the registering officer, on ex.PW3/A, (vii) whereunderneath hence also its executant, appended her authentic right thumb impression. Corollary whereof, is hence Ex.PW3/A, standing proven, to be validly and volitionally executed, ::: Downloaded on - 14/08/2018 22:58:18 :::HCHP ...18...
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and, also all apt recitals borne therein, vis-a-vis, hers in contemporaneity thereto, rather delivering possession of the suit property, to the plaintiff, hence, enjoying, the, utmost probative vigour. A further impetus to the aforesaid inference, is, marshalled by the factum, of, the son of the scribe of Ex.PW3/A, proving, the signatures of his deceased father borne therein. With PW-4 Deviya, one of the marginal witness, to, Ex.PW3/A making clear voicings, in his deposition, borne in his examination-in-
chief qua the executant of PW3/A, one Hardei, after being made to understand by its scribe, all the contents thereof, hers, in his presence, and, in the presence, of, one Dhayan Singh (since deceased), the other marginal witnesses to Ex.PW3/A,, appending her thumb impression thereon, and, also his likewise hence appending his signatures thereon, rather, comprised the best evidence, qua, valid and due execution of Ex.PW3/A. However, the learned counsel appearing for the ::: Downloaded on - 14/08/2018 22:58:18 :::HCHP ...19...
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defendants/respondents, has contended with vigour, that, with PW-4, in his cross-examination, acquiescing to a suggestion qua one Hardei being entailed, with, an auditory impairment, and, hence, preceding therewith, testifications rendered by PW-4, qua the contents of Ex.PW3/A, being readover and explained by its scribe, to her, and, thereafter hers after comprehending the same, hers rather appending her thumb impressions thereon, are, hence rendered incredible, whereupon, the aforesaid testification of PW-4, borne in his examination-in-chief, is also rid of its apt efficacy. However, the aforesaid contention cannot, be accepted, as the apt suggestion, in response whereto PW-4 rendered his acquiescence, is, beyond the contentions reared, by the defendants, in their written statement, also when hence the defendants, do not contend, qua thereupon Ex.PW3/A being ingrained, with, pervasive vices of fraud, and, misrepresentation. Contrarily also with the registering ::: Downloaded on - 14/08/2018 22:58:18 :::HCHP ...20...
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officer concerned, rather, making an apt uncontested endorsement, whereunder Hardei, has appended her right thumb impression, with clear unfoldings therein, (a) qua his reading over and explaining, all the contents of Ex.PW3/A to her, and, only after, his ensuring qua its executant, also, comprehending all the recitals borne therein, hers proceeding to append her right thumb impression thereunderneath, and, who, thereat stood identified by one Rattan Chad, (b) latter whereof, has in his testification, comprised in his examination-in-chief, rendered testification, bearing concurrence, vis-a-vis, the testification rendered by Ex.PW4. Apparently, PW-3 Rattan Chand, during the course, of, his cross-
examination, also stood meted suggestions, visibly appertaining to Hardei being entailed, with an auditory impairment, suggestion whereof stood, however, repelled by him. Consequently, it appears that, with, PW-3 Rattan Chand being educated, and, with PW-4 being ::: Downloaded on - 14/08/2018 22:58:18 :::HCHP ...21...
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uneducated, hence during the course of the learned counsel, for, the defendant, holding, the latter to cross-
examination, his being able, to, beyond pleadings apposite therewith, rather, hence, beguile PW-4, to acquiesce, to, a suggestion, meted to him qua one Hardei reinforcingly, r no to being entailed with an auditory impairment, (c) hence, credence can be meted to the acquiescence, made by PW-4, to any apposite suggestion therewith, put to him, by the defendants' counsel during the curse, of, the latter holding him to cross-examination.
11. Even otherwise, even if assumingly, Ex. PA is to be presumed to hence enjoy presumption of truth, on anvil, of its being prepared, by a public servant, during the course of his performing the apt public functions, (I) yet with its pronouncing qua Hardei refuting the factum, of, hers executing Ex.PW3/A, imminently also enjoined upon the revenue officer concerned, to, prior to his recording an order on 13.5.1989, (a) hence, elicit the ::: Downloaded on - 14/08/2018 22:58:18 :::HCHP ...22...
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participation of the donee, (b) and, he was also enjoined to ensure, the, participation, of, the apt witnesses thereto, (c) besides, the, participation, of, the registering officer, and, of the identifier thereat of Hardei, (d) for, thereupon, hence Hardei being confronted with Ex.PW3/A, (e) besides importantly, for, hence ensuring qua the plaintiff also being rather empowered, to, prove the due and valid execution, of, Ex.PW3/A, by his ensuring qua the statements of PW Dhayan Chand, and, of PW-4 Deviya, and, of the registering officer, being in contemporaneity therewith also standing recorded, (f) whereupon, he would stand enabled, to, prove qua hence Ex.PW3/A being volitionally executed by one Hardei, and, hence it being a valid document. Since, the revenue officer concerned, has, for want, of, his eliciting, the, participation, of the aforesaid in the apt proceedings, rather omitted to adhere to the principles, of, natural justice, and, rather has obviously infracted the principle ::: Downloaded on - 14/08/2018 22:58:18 :::HCHP ...23...
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of audi alteram partem, and, besides his obviously omitting to ensure, qua, the plaintiff(s) being enabled, to, prove qua Ex.PW3/A, being sequel, of, a volitional execution, by one Hardei. Reinforcingly, hence, non adherence thereto, contrarily renders, the, presumption of truth enjoyed by the apt purported official act, performed by a public servant, to, hence beget erosion, nor any echoings borne therein, in support, of, the espousal of the defendants, and, adversarial to the plaintiffs, can come, to be countenanced by this Court.
12. Furthermore, with this Court, forming the aforesaid conclusion, qua the defendants not proving theirs being inducted, as, tenants by the deceased Hardei, especially during her life time, vis-a-vis, the suit khasra numbers, rather with the defendants' evidence in respect thereto being concluded to be infirm, hence, the echoings borne in Ex.PA, are inferable to stand fictitiously recorded.
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13. Even though evidence exists, qua, during the end of her life time, one Hardei hence residing with the defendants, thereupon, the learned counsel appearing for the defendants/respondents, contends, that hence, the, recitals borne in Ex.PW3/A, qua, out of love and affection, hers, thereunder, rather gifting the suit property, to, the plaintiff, rather being ingrained with an aura of suspicion.
However, the aforesaid submission would hold vigour, only, if there existed an apt therewith condition, in, Ex.PW3/A, and, upon evident breach thereof, vestment of title, vis-a-vis, the plaintiff under Ex.PW3/A, hence would stand construed, to, stand rather invalidated. Rather the aforesaid contention is not borne out from Ex.PW3/A, hence, even if subsequent to execution Ex.PW3/A, Hardei, did not reside with the plaintiff, yet per se thereupon, it, would not be construable, to be, hence invalidated.
Consequently, the execution of Ex.PW3/A, for the reasons ::: Downloaded on - 14/08/2018 22:58:18 :::HCHP ...25...
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aforestated, stands concluded, to be engendered by, a, pure volitional act of its executant, one Hardei.
14. The learned trial Court has concluded that the acceptance of the gift by its donee being imperative, for fastening Ex.PW3/A, with, an aura validity, yet it, had also concluded, that,with Ex.PW3/A, after its execution before the scribe, being carried by Hardei, for its registration before the Registering officer concerned, hence the apt legally expostulated condition, impinging, upon, its acceptance by the donee, rather standing infringed.
However, the aforesaid conclusion is inaptly drawn, as, the learned courts below, have unnecessarily emphasised, upon, one Hardei hence carrying Ex.PW3/A, after its scribing, before the Sub Registrar concerned for its registration, whereas, both visibly wander astray, vis-
a-vis, after, its, registration, its being produced before the court, by the donee, (I) wherefrom, rather a firm conclusion is secured, qua after its imperative statutory ::: Downloaded on - 14/08/2018 22:58:18 :::HCHP ...26...
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registration, it, being evidently handed over by its executant, vis-a-vis, the donee, (ii) therefrom the apt inference is rearable qua hence the donee rather accepting the gifted property, borne in Ex.PW3/A, and, also hence the plaintiffs' also proving the peremptory statutory requirement, of, the apt complete transfer of the suit property, under a valid gift thereof, rather occurring satiation of requirement whereof, is, hence, begotten, in, the plaintiff(s), in the afore manner, rather accepting it.
15. The above discussion, unfolds, that the conclusions as arrived by the learned first Appellate Court as also by the learned trial Court, being not based, upon a proper and mature appreciation of evidence on record.
While rendering the findings, the learned first Appellate Court as well as the learned trial Court, have excluded germane and apposite material from consideration.
Accordingly, the substantial questions, of law are ::: Downloaded on - 14/08/2018 22:58:18 :::HCHP ...27...
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answered in favour of the appellant/plaintiff, and, against the respondents/defendants.
16. In view of the above discussion, the instant appeal is allowed and the judgements and decrees rendered by both the learned Courts below are set aside.
In sequel, the plaintiffs' suit is decreed and declared to be owners of the suit land and decree for r they are possession of the suit land is also passed in their favour.
Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs.
Records be sent back forthwith.
(Sureshwar Thakur) 8 th August, 2018. Judge.
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