DATTATRAY NARAYAN AHER Vs. BHASKAR NARAYAN AHER

JUDGEMENT

(1.) The appellant challenges the concurrent judgments and orders passed by the learned Civil Judge, S.D., Nashik dated 30.1 '2.1991 in Special Civil Suit No. 458/88 thereby decreeing the suit filed by the respondent-plaintiff and by the learned Second Additional District Judge, Nashik in Civil Appeal No. 37/92 dated 19.1.1998 thereby dismissing the appeal filed by the present appellant.

(2.) The respondent-plaintiff had filed a suit for cancellation of the gift deed dated 9.5.1978 allegedly executed by him in favour of the appellant-defendant regarding suit property and for declaration that he was owner of the said suit property and for perpetual injunction against the defendant from interfering with the plaintiff 's possession. It was the case of the plaintiff that the plaintiff had never executed any gift deed in favour of the defendant and the defendant had obtained his signature on certain documents posing the said documents to be loan documents. It was the contention of the plaintiff that only when on 14.9.1988, he received a notice from the Talathi, on an application filed by the defendant, for the mutation of his name in the revenue records he came to know regarding alleged gift deed. It was therefore the case of the plaintiff that he was required to file said suit. It was the case of the defendant that the gift deed was executed by the plaintiff who was his younger brother as he felt indebted to the defendant since the defendant had helped him in financial and other matters. It was further case of the defendant that the gift deed was scribed as dictated by the plaintiff, the stamp paper etc. was purchased by him, as such it was a valid gift deed. The learned trial Court after appreciation of the evidence held that the gift deed in question was not executed by the plaintiff and as such decreed the suit, thereby cancelling the said deed, declaring the plaintiff to be the owner and granting the perpetual injunction as prayed for. As aforesaid an appeal preferred there against, came to be dismissed by the learned District Judge. Being aggrieved thereby the present appeal is filed.

(3.) Smt. Kanade, learned Counsel holding for Mr. Godbole, learned advocate for the appellant submits that both the courts below have failed to appreciate the issue in correct perspective. Learned Counsel submits that since the plaintiff himself had admitted the signature on the gift deed, in view of proviso to Section 68 of the Indian Evidence Act, it was not necessary to examine the attesting witness. Learned Counsel in this respect relies on a judgment of the Apex Court in the case of (i) M.L. Abdul Jabbar Sahib v. M.V. Venkata Sastri and Ors., 1969 1 SCC 573, (ii) N. Kamalam and Anr. v. Ayyasamy and Anr., 2001 7 SCC 503.