SOM DUTT Vs. KAMAL DEV

JUDGEMENT

(1.) The present Regular Second Appeal under Section 100 of the Code of Civil Procedure is maintained by the appellant/plaintiff (hereinafter called plaintiff) against the respondent/defendant (hereinafter called defendant) assailing the judgment/decree of the learned Court below in Appeal No.173 of 2014 passed by the learned Additional District Judge (II) Una District Una,HP affirming the judgment and decree passed by the learned trial Court.

(2.) Briefly stated, the facts giving rise to the present appeal are that the appellant (hereinafter referred to as the plaintiff) instituted a suit before the learned trial Court against the respondent for declaration to the effect that the plaintiff was exclusive owner in possession of suit land, and the gift deed dated 9/1/2004 in respect of a part of the land and the consequent mutation thereof,in the name of the defendant were wrong, illegal and void ab initio, and had no effect on the right, title or interest of the plaintiff. The suit was filed on the strength that the plaintiff was an old and illiterate lady, confined to bed for almost two years preceding the suit, on account of various ailments. She was unable to walk and speak clearly. The plaintiff had two sons namely Hem Raj and Som Dutt, who were looking after and maintaining the plaintiff. The defendant was neither related to the plaintiff nor had any connection with her. The defendant being a mischievous person, with the connivance of the petition writer and marginal witness got prepared the impugned gift deed dated 9.1.2004 qua land measuring 0 -00 -64 square meters, being 8/35 shares out of total land measuring 0 -02 -80 square meters in his favour. The plaintiff had never executed any gift deed in favour of the defendant and the impugned gift deed was a fraudulent and concocted document. There was no occasion for the plaintiff to have executed any gift deed in favour of the defendant. It was averred therein that about a fortnight prior to the filing of the suit, the defendant, on the strength of the alleged gift deed, had started throwing threats of interference over the suit land, hence the suit. Consequential relief of permanent prohibitory injunction restraining the defendant from further alienating the suit land and changing the nature of the same was also sought. A prayer for possession was also made in the alternative.

(3.) The defendant contested the suit by submitting written statement to the plaint, raising primary objections relating to maintainability, waiver, valuation, locus standi and absence of cause of action. On merits, it was averred that the plaintiff had executed a valid gift deed dated 9.1.2004 in favour of the defendant, consequent upon which, the defendant had been coming in possession of the suit land ever since. Mutation in that behalf had also been sanctioned in favour of the defendant. It was further averred that the suit had actually been brought at the instance and behest of the youngest son of the plaintiff, who had forced his mother to file the instant case with a view to harass the defendant. Along with the written statement, the defendant also preferred a counter -claim seeking a decree of permanent prohibitory injunction against the plaintiff, restraining the latter from taking forcible possession or changing the nature of the suit land. The appellant was substituted in place of Ram Asri, who died on 28.4.2004.