Choudhary Singh Vs. Dhannu - Court Judgment

SooperKanoon Citationsooperkanoon.com/1045401
CourtMadhya Pradesh High Court
Decided OnAug-26-2013
AppellantChoudhary Singh
RespondentDhannu
Excerpt:
second appeal no.1225/2011 26.08.2013 mr. manot sanghi, learned counsel for the appellant. heard on the question of admission.2. this appeal is by the plaintiff, who has lost in both the courts.3. facts giving rise to filing of the appeal briefly stated are that the plaintiff filed a suit on the ground that the suit land was gifted to his father samlu by his grand-mother namely pankinbai vide registered gift-deed dated 13.6.1973 (ex. p/1). since then plaintiff's father was in possession of the suit land and after death of father of the plaintiff, the plaintiff is in possession of the suit land. however, the defendants in november, 2006 threatened the plaintiff with dispossession. accordingly, the plaintiff filed the suit seeking the relief of declaration of title and permanent injunction.4. the defendants in the written statement inter- alia pleaded that one tiharo was owner of the suit land and after his death, the land in question devolved on his wife namely pankinbai. it was further pleaded that pankinbai never executed gift-deed in favour of the plaintiff's father. the alleged gift deed is forged and fabricated.5. the trial court dismissed the suit. the decree passed by the trial court was affirmed in appeal by the lower appellate court.6. learned counsel for the appellant submitted that the courts below grossly erred in holding that execution of the gift-deed (ex.p/1) is not proved. it was further submitted that there are various means to prove acceptance of the gift. in support of his submission, learned counsel for the appellant has placed reliance on the decision of supreme court in the case of asokan vs. lakshmikutty, (2007) 13 scc 210.7. i have considered the submissions made by learned counsel for the appellant and have perused the record. admittedly, the attesting witness to the gift-deed namely dev singh is alive however, he has not been examined on behalf of the plaintiff. in absence of examination of the attesting witness, execution of the gift- deed has rightly been held not to be proved by the courts below. the courts below has further held that there is neither thumb impression not signature of donee on the gift-deed and the same also does not contain recital as to acceptance of the gift-deed. thus, on the basis of meticulous appreciation of evidence on record, the courts below have concurrently found that the execution of the gift-deed has not been proved.8. even otherwise, the jurisdiction of this court to interfere with the findings of fact is well defined by catena of decisions of supreme court. this court in exercise of power under section 100 of the code of civil procedure can interfere with the finding of fact only if the same is shown to be perverse or based on no evidence. see. narayanan rajendran and another vs. lekshmy sarojni and others (2009) 5 scc 264.hafazat hussain vs. abdul majeed and others (2011) 7 scc 189.union of india vs. ibrahim uddin and another, (2012) 8 scc 148.d.r. rathna murthy vs. ramappa (2011) 1 scc 15.and vishwanath agrawal vs. sarla vishnath agrawa, (2012 7 scc 288.the findings recorded by the courts below by no stretch of imagination can either be said to be perverse or based on no evidence.9. for the aforementioned reasons, no substantial question of law arises for consideration in this appeal. the appeal fails and is hereby dismissed. (alok aradhe) judge rc
Judgment:

Second Appeal No.1225/2011 26.08.2013 Mr. Manot Sanghi, learned counsel for the appellant. Heard on the question of admission.

2. This appeal is by the plaintiff, who has lost in both the Courts.

3. Facts giving rise to filing of the appeal briefly stated are that the plaintiff filed a suit on the ground that the suit land was gifted to his father Samlu by his grand-mother namely Pankinbai vide registered gift-deed dated 13.6.1973 (Ex. P/1). Since then plaintiff's father was in possession of the suit land and after death of father of the plaintiff, the plaintiff is in possession of the suit land. However, the defendants in November, 2006 threatened the plaintiff with dispossession. Accordingly, the plaintiff filed the suit seeking the relief of declaration of title and permanent injunction.

4. The defendants in the written statement inter- alia pleaded that one Tiharo was owner of the suit land and after his death, the land in question devolved on his wife namely Pankinbai. It was further pleaded that Pankinbai never executed gift-deed in favour of the plaintiff's father. The alleged gift deed is forged and fabricated.

5. The trial Court dismissed the suit. The decree passed by the trial Court was affirmed in appeal by the lower appellate Court.

6. Learned counsel for the appellant submitted that the Courts below grossly erred in holding that execution of the gift-deed (Ex.P/1) is not proved. It was further submitted that there are various means to prove acceptance of the gift. In support of his submission, learned counsel for the appellant has placed reliance on the decision of Supreme Court in the case of Asokan Vs. Lakshmikutty, (2007) 13 SCC 210.

7. I have considered the submissions made by learned counsel for the appellant and have perused the record. Admittedly, the attesting witness to the gift-deed namely Dev Singh is alive however, he has not been examined on behalf of the plaintiff. In absence of examination of the attesting witness, execution of the gift- deed has rightly been held not to be proved by the Courts below. The Courts below has further held that there is neither thumb impression not signature of donee on the gift-deed and the same also does not contain recital as to acceptance of the gift-deed. Thus, on the basis of meticulous appreciation of evidence on record, the Courts below have concurrently found that the execution of the gift-deed has not been proved.

8. Even otherwise, the jurisdiction of this Court to interfere with the findings of fact is well defined by catena of decisions of Supreme Court. This Court in exercise of power under Section 100 of the Code of Civil Procedure can interfere with the finding of fact only if the same is shown to be perverse or based on no evidence. See. Narayanan Rajendran and another Vs. Lekshmy Sarojni and others (2009) 5 SCC 264.Hafazat Hussain Vs. Abdul Majeed and others (2011) 7 SCC 189.Union of India Vs. Ibrahim Uddin and another, (2012) 8 SCC 148.D.R. Rathna Murthy Vs. Ramappa (2011) 1 SCC 15.and Vishwanath Agrawal Vs. Sarla Vishnath Agrawa, (2012 7 SCC 288.The findings recorded by the Courts below by no stretch of imagination can either be said to be perverse or based on no evidence.

9. For the aforementioned reasons, no substantial question of law arises for consideration in this appeal. The appeal fails and is hereby dismissed. (Alok Aradhe) Judge RC