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5. Stemming on the pleadings of the parties, the trial court struck seven issues. Parties led evidence, oral and documentary. The trial court dismissed the suit with the finding that the plaintiff has failed to prove that the gift deed, Ext1, was obtained fraudulently. Defendant no.1 is in possession of the suit land. The suit is barred by limitation. Felt aggrieved, plaintiff filed Title Appeal No.45 of 1991 before the Addl. District Judge, Kendrapara. The appellate court came to hold that the suit land including the gifted land was the undivided joint family co-parcener property of Muralidhar and the plaintiff. The plaintiff was a minor co-parcener. Execution of gift deed, Ext.1, by Muralidhar without consent of the plaintiff is void. Defendant no.1 had relinquished the property and made an endorsement in the back side of Ext.1, which can be used for collateral purposes. No attesting witness had been examined to prove the contents thereof as required under Section 68 of the Indian Evidence Act. Mere marking of a document would not prove the contents thereof. D.W.1, identifier cannot take place of an attesting witness. D.W.1 had no knowledge about the execution and contents of Ext.1. The contents of Ext.1 had not been duly proved by D.W.1. Ext.1 was produced from the custody of the plaintiffs. Thus Ext.1 had not been acted upon. D.W.1 had admitted before the settlement authority in respect of relinquishment and given consent to record the gifted property in favour of the plaintiff. Admission of a party is a substantive evidence. Muralidhar was ill. Defendant no.1 was living in the house of Muralidhar and looking after the cultivation. Defendant no.1 was not in possession of the gifted property of Muralidhar. Defendant no.1 purchased a part of the property from the gift deed, Ext.1, from the plaintiff. Ext.1 was obtained by exercising fraud and misrepresentation and is void. Article 59 of the Limitation Act has no application. Article 109 of the Limitation Act applies to the case. The suit was filed within the prescribed period of limitation. Held so, it allowed the appeal. It is apt to state that during pendency of the appeal, sole appellant died leaving behind the legal heirs, who have been substituted.

9. Per contra, Mr. Pati, learned counsel for the respondent no.1 submitted that Muralidhar, father of the plaintiff was ill and bed-ridden. Defendant no.1 was residing in his house to look after cultivation work. In the guise of power of attorney, he obtained the gift deed in connivance with the scribe and attesting witness. The same has not been acted upon. Plaintiff is in possession of the land. Defendant no.1 had purchased a part of the gifted property, which pre-supposes that the gift deed had not been acted. The gift deed was in the custody of the plaintiff. The plaintiff produced the same in the court. He further submitted that Article 59 of the Limitation Act is the general provision, whereas Article 109 of the Limitation Act is the special provision. Article 109 of the Limitation Act shall apply. The suit was filed within the prescribed period of limitation. He further contended that the document was marked without objection. The same is not conclusive in nature. The decision cited by the learned counsel for the appellant is distinguishable on facts. In the said case, the parties are Muslims. He placed reliance on the decisions of the apex Court in the case of Ningawwa v. Byrappa Shiddappa Hireknrabar and others, AIR 1968 SC 956, P.C. Purushothama Reddiar v. S. Perumal, AIR 1972 SC 608, Union of India v. Moksh Builders and Financiers Ltd. and others, AIR 1977 SC 409, Abdul Rahim and others v. Sk. Abdul Zabar and others, AIR 2010 SC 211 and the decisions of this Court in the case of Land Acquisition Officer, D.I.S., Cuttack v. Madan Gajendra and others, 41 (1975) CLT 869, Sailendra Kishore Patnaik v. Harekrushna Satpathy and others, AIR 1978 Orissa 125, Bhagyarathi Das and another v. Agadhu Charana Das, 62 (1986) CLT 298, Bhukhan Sahu v. Bharat Chandra Sahu and others, 66 (1988) CLT 389, Naladhar Mahapatra and another v. Seva Dibya and others, AIR 1991 Orissa 166, Surendra Kumar Patra and others v. Arjun Charan Patra and others, 74 (1992) CLT 427 and Trilochan Naik and others v. Sukuru Sethi and others, 1992 (I) OLR 296.

16. In Union of India v. Moksh Builders and Financiers Ltd. and others etc., AIR 1977 SC 409, the apex Court held that the admission of a party is substantive evidence of the fact.

17. In Surendra Kumar Patra, the plaintiff was aggrieved by the alienation made by his father by way of gift deed in respect of the disputed property. This Court held that Article 109 of the Limitation Act applies to a suit which is filed to set aside an alienation made by father of the ancestral property. It was held that the case is squarely covered by Article 109 of the Limitation Act.

alienation of ancestral property.

22. Article 109 of the Limitation Act shall be come into play, when a Hindu governed by Mitaksara law instituted the suit to set aside his father's alienation of ancestral property. The period of limitation is 12 years, when an alienee takes possession of the property. In Surendra Kumar Patra, this Court held that Article 109 of the Limitation Act applies to a suit which is filed to set aside an alienation made by the father of the ancestral property. In the instant case, the alienee had not taken over the possession of the suit property. The suit was instituted to set aside the gift deed. Defendant no.1 purchased some land from the plaintiff including a portion of the suit land on 25.6.1977 Ext.4. The inescapable conclusion is that the suit was instituted within the prescribed period of limitation.