BRIJ RAJ SINGH Vs. SEWAK RAM

JUDGEMENT

(1.) Plaintiff-appellant Brij Raj Singh filed a suit for possession of the site in dispute on the allegations that he acquired this property under the gift deed dated 18th January, 1961 registered on 9th February, 1961, Exhibit P.W. 6/1 from its previous owner Kanwar Chander Raj Saran Singh. It was pleaded that out of this residential plot, defendant No. 1 Sewak Ram took some portion on rent on 15th November, 1961 from the plaintiff on a monthly rent of Rs. 60/- and the possession of the same had been delivered by the plaintiff to defendant No. 1 Sewak Ram as a tenant on the said date. When the defendant failed to pay the rent regularly and also changed user of the said plot, this necessitated the plaintiff to file an application for ejectment of the defendant before the Rent Controller. There the defendant denied that he was holding the said portion as a tenant under the plaintiff. The Rent Controller, after the trial, vide his order dated 16th January, 1967 held the defendant Sewak Ram to be a tenant under the plaintiff and liable to be ejected therefrom. However, in appeal, the appellate authority vide its order dated 3rd of June, 1967 reversed the order of the Rent Controller as it was held that Sewak Ram defendant has not been proved to be a tenant under the plaintiff. The plaintiff, then filed the present suit. The suit was resisted by the defendant inter alia on the ground that the plaintiff is neither the owner nor in possession of the property; that Kanwar Chander Raj Saran Singh was not concerned whatsoever with the property in question and as such had no right or authority to gift away the same to the plaintiff as alleged. It was further averred that Sewak Ram defendant never entered the premises in dispute as a tenant and as such the plaintiff has no cause of action. On the pleadings of the parties, the trial Court framed the following issues :-

(2.) Under issue No. 1, the trial Court found that Kanwar Chander Raj Saran Singh the donor was previously owner in possession of site in dispute and consequently had the necessary authority to gift the same away to the plaintiff. It appears that no specific objection was taken by the defendant to the gift deed Exhibit P.W.6/1. Thus the trial Court ultimately found that the plaintiff is the owner of the property in dispute as claimed by him. Since the finding on issue No. 2 was against the defendant, the plaintiff's suit was decreed. In appeal, the learned Senior Sub-Judge, with enhanced appellate powers, did not reverse the finding of the trial Court to the effect that Kanwar Chander Raj Saran Singh plaintiff's donor was the owner of the property in dispute, rather it observed that admittedly the property which led the parties to the present controversy was owned by Kanwar Chander Raj Saran Singh son of Rao Brij Raj Saran Singh Rais. However, he reversed the decree of the trial Court on the ground that the gift deed, Exhibit P.W. 6/1, on the basis of which the plaintiff claimed himself the owner was not duly attested as required under Section 123 of the Transfer of Property Act and therefore, it was not a valid document and the plaintiff could not claim to be the owner on that basis. Feeling dissatisfied with the same, the plaintiff has come up in second appeal in this Court.

(3.) The whole controversy in this appeal is that whether the gift deed Exhibit P.W. 6/1 has been duly attested as required under Section 123 of the Transfer of Property Act which is to the following effect :