MALKA DEVI Vs. ASHOK KUMAR

JUDGEMENT

(1.) This Regular Second Appeal under Section 100 C.P.C. has been filed by the appellant/defendant against the judgment and decree passed by the learned District Judge, Kangra, dated 21.10.1997, vide which the judgment and decree passed by the learned Sub Judge, Dehra, dated 26.3.1997, decreeing the suit of the plaintiff for declaration and for possession, was upheld.

(2.) Briefly stated, the facts of the case are that the respondent hereinafter referred to as the plaintiff (originally the suit was filed by the predecessor-in-interest of the plaintiff named Basanta) as against Amar Singh, now represented by the present appellant, hereinafter referred to as the defendant. It was alleged by the plaintiff that the land in suit as detailed in the plaint was owned and possessed by the plaintiff. The plaintiff was an old man having no child and being an illiterate villager, had only the suit land for his livelihood. The defendant used to visit the house of the plaintiff and also posed himself to be nearest and dearest of the plaintiff and his wife. The plaintiff and his wife always dreamt the defendant as his son and had reposed confidence in him. On 17.8.1984, the defendant brought the plaintiff to Dehra on the pretext that the plaintiff has to fill up the papers for old age pension. However, the defendant got written a gift deed instead of the old age pension form and the gift deed was the result of misrepresentation and fraud. The plaintiff waited for the pension for 2? years and then learnt from the Patwari that the land has been mutated in the name of the defendant. Hence, the suit for declaration praying that the gift deed dated 17.8.1984 be declared void. He also challenged that the parties are governed by Kangra custom and the possession of the suit land was never given to the defendant and as such, the gift deed was void.

(3.) The defendant took up preliminary objections in regard to maintainability, estoppel etc. On merits, he pleaded that he is owner in possession of the land under challenge on the basis of the gift deed executed by the plaintiff in favour of the defendant, which was a genuine document and it was out of natural love and affection and in lieu of services rendered to the plaintiff by the defendant and his family. The defendant admitted that the plaintiff was an old man, was issue less, but pleaded that the defendant and his family being relatives have served him for the last 15 years and spent huge amount for the treatment of the plaintiff. He also pleaded that the land is being cultivated by the defendant and his family for the last 15 years. The defendant had been living in the house of the plaintiff for the said period and had been serving him still. It was denied that the defendant brought the plaintiff to Dehra on the pretext to file papers of pension and pleaded that the gift deed was duly executed and it was not liable to be declared as void.