MURARI LAL KUTI Vs. NARAYAN LAL AHIR

JUDGEMENT

(1.) This is a second appeal by the defendant and arises out of a suit for a declaration that the plaintiff-respondent has title to the kuti gaddi by virtue of a deed of gift executed in his favour on 6-11-1944, and for confirmation or, in the alternative, recovery of possession of the business of the gaddi and for delivery of the bahis of the said gaddi. The Court of first instance gave a decree in favour of the plaintiff-respondent and held that Shyam Lal Kuti, who was admittedly, the last, owner of the gaddi, voluntarily executed a deed of gift in favour of the respondent on 6-11-1944, and the respondent came in possession of the business, of the Kuti Gaddi though his possession was disturbed and not peaceful since after the execution of another deed of gift in favour of the present appellant on 28-2-1946. That Court also held that the respondent was entitled to recover the Jatri bahis belonging to the said gaddi and directed that 15 bahis which had been produced by the present appellant should be handed over to the respondent. Against the aforesaid judgment and decree of the Court of first instance the present appellant preferred an appeal to the learned District Judge of Gaya. That appeal was dismissed by the learned Additional District Judge on 4-9-1052. Thereafter, the appellant filed this second appeal to this Court.

(2.) In order to appreciate the points urged on behalf of the appellant before us it is necessary to state some facts. I have already said that the case of the plaintiff-respondent rested on a deed of gift dated 6-11-1944. It was alleged by the respondent that Shyam Lal Kuti, a Gayawat of the town of Gaya, was his maternal uncle and was the owner (malik) of the Kuti Gaddi known as Gaddi Shyam Lal Ram Lal. He used to carry on the business of a Gayawal for the purpose of Gaya Sradh by pilgrims who came to Gaya. Shyam Lal Kuti made a gift of the business in favour of the plaintiff-respondent by a deed of gift dated 6-11-1944, and delivered possession of the gaddi and its assets, etc., to the plaintiff-respondent. The plaintiff-respondent then became the owner of the Kuti Gaddi and began to perform the functions which appertained to the owner of that gaddi. Taking advantage of the illness and feeble health of Shyam Lal Kuti, one Beni Lal Gaib, father of the present appellant, prevailed, upon Shyam Lal to execute another document dated 28-2-1946, in respect of the Kuti Gaddi in favour of the present appellant. This latter document, according to the case of the plaintiff-respondent, conferred no title on the appellant, and the appellant never got possession of the business of the Kuti Gaddi. The plaintiff-respondent alleged that some of the bahis of the Kuti Gaddi were stolen in 1947 and there was some dispute between the parties as to the issue of an identity card in favour of one or other of the parties as Gayawal of the Kuti Gaddi, the usual practice being for the District Magistrate to grant an identity card to each Gayawal who is the owner of a gaddi. The identity card which was originally given to the plaintiff-respondent was cancelled and another card was given to the appellant. There was also a proceeding under Section 144, Criminal P. C. in which an order adverse to the plaintiff-respondent was made. This led the plaintiff-respondent to bring his suit for a declaration that he was the rightful owner of the Kuti Gaddi and was entitled to recover possession of the business and to get back the bahis of the gaddi.

(3.) On behalf of the present appellant it was alleged, however, that the document which Shyam Lal Kuti executed in favour of the plaintiff-respondent on 6-11-1944, was a will and not a deed of gift, and the document was to come into effect after the death of Shyam Lal Kuti. It was alleged that the plaintiff-respondent never got possession of the business of the gaddi as a result of the aforesaid document, nor were the bahis of the gaddi made over to him. Shyam Lal Kuti was later dissatisfied with the plaintiff-respondent and cancelled and revoked the will in favour of the plaintiff-respondent by another document dated 28-2-1946. Shyam Lal Kuti also executed another registered deed of gift dated 28-2-1946, in respect of the Kuti Gaddi in favour of the present appellant and made over all the bahis and papers relating to the gaddi to the appellant. The appellant accepted the gift and came in possession.