DEBI PRASAD Vs. CHHOTEY LAL

JUDGEMENT

(1.) THIS is a defendants' second appeal arising out of a suit for cancellation and possession.

(2.) THE suit giving rise to this appeal was filed by one Chhotey Lal and his wife Smt. Tulsa. THE defendants in the suit, who are appellants, are Debi Prasad and his wife Smt. Bitti. Debi Prasad is admittedly a grandson of the own brother of Chhotey Lal. During the pendency of this appeal both Chhotey Lal and Smt, Tulsa died. Smt. Tulsa died leaving Chhotey Lal as her sole heir and on the death of Chhotey Lal respondents Nos. 1 to 4 have been impleaded as his heirs.

(3.) THE trial Court held that the plaintiffs had failed to prove the case of fraud set up by them and accordingly dismissed the suit. On appeal by the plaintiffs the first appellate court came to the conclusion that even though there was no satisfactory evidence to prove fraud it was clear from the evidence on the record that the plaintiffs never intended to execute a deed of gift and as such they were entitled to the relief of cancellation asked for. THE relief for possession was not pressed in appeal on the ground that the appellants had already vacated the house Accordingly the first appellate court allowed the appeal and decreed the claim for the cancellation of the deed of gift referred to above. It is in these circumstances that the defendants have come up in second appeal.