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2013 DIGILAW 2809 (ALL)

Kastoori Devi (Since Dead) v. Harish Chandra Gupta

2013-11-18

DINESH GUPTA

body2013
Dinesh Gupta, J. This second appeal is preferred against the judgement dated 16.11.2010 passed by Special Judge (E.C. Act), Additional District Judge, Agra in Civil Appeal No. 145 of 2003 arising out of judgement dated 15.10.2003 passed by Additional Civil Judge/Judge, Small Causes in O.S. No. 364 of 1992. 2. The plaintiff-appellant (hereinafter called the appellant) filed Original Suit No. 364 of 1992 for the relief of permanent prohibitory injunction against the defendant-respondent (hereinafter called, 'the respondent'). The defendant respondent also filed counter claim claiming relief of possession as well as damages for use of occupation. The Suit was dismissed by the trial court. However, the counter claim was decreed. 3. Feeling aggrieved the appellant preferred appeal, which was registered as Civil Appeal No. 145 of 2003 and was also dismissed by the learned Additional District Judge/Special Judge vide its order dated 16.11.2010. 4. Feeling aggrieved, the appellant preferred this appeal. 5. Learned counsel for the appellant submitted that he has taken objection against the counter claim filed by the respondent that the gift deed executed in their favour is not admissible in evidence as it has not been proved as per the requirement of Section 68 of Indian Evidence Act. He also relied upon the Judgement of the Apex Court passed in 2009 (1) AWC 550 (SC) K. Laxmanan Vs. Thekkayil Padmini and others and 2009 (1) AWC 873 (SC) Bharpur Singh and others Vs. Shamsher Singh in support of his contention. 6. The counsel further submitted that the gift deed although was more than 30 years old but could not be read in evidence with the help of Section 90 of the Indian Evidence Act as it is the basis of their counter claim. However, both the courts below negate his contention. 7. I am unable to accept the contention raised by learned counsel for the appellant. Both the courts have dismissed the Suit of the appellant in which the appellant has claimed ownership over the property in dispute. The only contention raised by the appellant in respect of the counter claim filed by the respondent on the basis of the gift deed dated 11.04.1969 which was a registered gift deed and both the courts below have relied upon the same treating it to be a genuine document. 8. The only contention raised by the appellant in respect of the counter claim filed by the respondent on the basis of the gift deed dated 11.04.1969 which was a registered gift deed and both the courts below have relied upon the same treating it to be a genuine document. 8. The case law cited by the appellant will be of no help to him as in that particular case all the courts below have recorded finding that the gift deed and the Will suffering from suspicious circumstances and the parties failed to prove the execution of the same. Treating it to be a concurrent finding the apex court declined to intervene in the matter. 9. The case is totally different here. In the present case, both the courts below have found the gift deed as a genuine document bona fidely executed even the witness by the husband of the appellant. There is concurrent finding of fact recorded by both the courts below. Learned counsel for the appellant fails to show me that there is any perversity in the judgement. Learned counsel further fails to show me that any evidence is mis-read, mis-interpreted or left to be considered. There is no substantial question of law involved in the appeal. Hence, the appeal is dismissed at the admission stage. Interim order passed earlier stands dismissed. ____________