BRIJESH KUMAR MAHRAJ Vs. BRIJ SUNDER LAL

JUDGEMENT

(1.) G. N. Ray, J. Plaintiff-appellant has filed this appeal being aggrieved by the judgment and decree passed in Civil Appeal No. 205 of 1977 by Shri Shital Singh, Additional Civil Judge, Mathura on 20-8-1981 and that appeal arose out of O. S. No. 504/69.

(2.) PLAINTIFF has filed suit for Khas possession basing his claim on a gift made by one Purshotam Das to Smt. Kamlawati Bhauji on 26-1-89 who happens to be the 'nati of Smt. Kamlawati Bahuji. It was asserted by the plaintiff that Purshotam Das son of Keshav Das was the owner of the property althrough and he executed a gift dated 26-1-89 in respect of the suit property of other proprietors to Sm. Kamlawati Bahuji who entered into possession is pursuant to that deed. The defendants claimed that property in suit was gifted by one employee of Thakur Dwarkadish Ji in favour of the defendant No. 1. The defendant No. 2 executed a deed in favour of defendant No. 1 who was an employee of Thakur Dwarkadish Ji. The defendant No. 1 asserted title by virtue of adverse possession. The defendant further claimed that the suit property did not tally to schedule of deed gift made by Purshotam Das in favour of Smt. Kamlawati Bahuji. On perusal of pleadings, the learned trial Court framed issues and upon discussion regarding the possession and upon other materials on record both oral and documentary evidences, decreed the suit for possession, the defendant failed to prove any title whatsoever in suit property. However, the learned appellate court below held that plaintiff was to prove his title of the suit property and suit property was not identified and on discussion over the relevant materials found that only three sets of boundaries tallied. There was some description of the property which existed at the relevant time but that did not tally with the property in suit so he was pleased to hold property covered by the deed gift made in favour of Smt. Kamlawati Bahuji, dated 26-1-89 was not identical with the suit property.

(3.) LEARNED Counsel for the respondents submitted that the learned appellate court thoroughly discussed materials on record regarding adverse possession and this Court in a second appeal should not disturb those findings cannot be said to be perverse because cogent reasons had been assigned by learned lower appellate court. The learned lower appellate court described the evidence of plaintiff as not of worth to be relied upon and it has been further submitted that since the plaintiff based his title upon a certified copy of the registered deed as such it was inadmissible in evidence in view of the provisions of Sections 90 and 90-A of the Indian Evidence Act and he referred a decision in AIR 1974 Alld. 389. LEARNED Counsel for the respondents referred another decision in 1997 (5) SCC, 438, wherein their Lordship of the Apex Court held that High Court while interfering in a second appeal must satisfy with substantial question of law and facts which are involved and if such proper grounds are not being taken in memo of appeal then it will be the duty of the High Court to formulate the substantial questions of law and give notice to opposite party and allow fair and proper opportunity to meet those point/points so that the otherwise may meet those point/points at the time of hearing. In this way the learned advocate for defendant-respondents submitted that the appeal should be dismissed with costs.