RAMAWATI DEVI Vs. PRABHAWATI KUER

JUDGEMENT

(1.) Heard the learned senior counsel Mr.T.N. Maitin appearing on behalf of the appellant.

(2.) Plaintiff respondent is the appellant in this second appeal. She filed Title Suit No. 22 of 1996 for declaration and for setting a side the deed of gift No. 1634 dated 22.4.1966 executed by Rajpati Kunwer in favour of Shiv Dei Devi, Ram Kumar Tiwari, Sarada Devi and Sudama Pandey with respect to suit land on the ground that it is without jurisdiction, fraudulent, forged, fabricated, fictitious, illegal, null and void document. After trial the trial court decreed the plaintiff's suit holding that the property was coparcenery property and, therefore, executant had executed the gift deed against the law as such the document is void document. On appeal, (T.A. No. 101 of 2009/ 66 of 2010) the lower appellate court set aside the trial court judgment and allowed the appeal recording a finding that the suit has been filed in the year 1996 for declaring the gift deed of the year 1966 as null and void and the plaintiff appellant had the knowledge about the gift deed in the year 1981-82 itself and, therefore, the suit is barred by law of limitation. The lower appellate court also found that after death of Bechan Tiwari his widow Rajpati became the sole owner of the property as Bechan Tiwari had no son.

(3.) The learned senior counsel appearing on behalf of the appellant submitted that the original gift deed was never produced by the defendant in the courts below because it was the burden on the part of the defendant to produce and prove due execution of the gift deed as the plaintiff has categorically stated that it was not executed by Rajpati Kunwer. The trial court relying on this point has decreed the plaintiff's case. The lower appellate court did not consider this aspect of the matter.