PADAM SINGH Vs. MOHAN LAL

JUDGEMENT

(1.) The present first appeal No.310/2005 under Section 96 of CPC has been filed by the defendant Padam Singh s/o Ranjeet Singh Rajpurohit against the respondent-plaintiff Mohan Lal s/o Shivnath Singh Rajpurohit being aggrieved by the judgment & decree of possession in respect of the suit property, a residential house situated at C-64, Shastri Nagar, a posh colony of Jodhpur. The decree of possession was given in Civil Original Suit No.20/2005 (24/2001) Mohan Lal vs. Padam Singh on 28/5/2005 by the learned trial court of Addl. District Judge (Fast Track) No.2, Jodhpur giving the following findings in favour of the plaintiff:- <JUDIMG>1637465-1</JUDIMG>

(2.) The defendant Padam Singh s/o Ranjeet Singh Rajpurohit, whose father-in-law Shri Prithvi Raj was the real elder brother of plaintiff-Mohan Lal & who has expired and is now represented by his legal representatives Smt. Sua Devi, his wife and sons.

(3.) Learned counsel for the appellant-defendant, Mr. R.K.Thanvi, Sr. Advocate with Mr. Narendra Thanvi vehemently submitted that the said suit property, a residential house situated at C-64, Shastri Nagar, Jodhpur, was given to the defendant Padam Singh by way of oral gift by his father-in-law Prithvi Raj, who constructed a house on the said plot, which was allotted in favour of the plaintiff respondent Mohan Lal, who was working as Tehsildar in the year 1967, when the said plot was allotted to him. The said Prithvi Raj had given the suit property to various tenants during 1971-1989 and rent was also realised by Shri Prithvi Raj only. Learned counsel for the appellant also submitted that in the month of October, 1989 the said suit property was given to defendant - Padam Singh by way of oral gift and no written gift deed was registered or otherwise was executed by that time. The said Prithvi Raj Rajpurohit and his son Ghanshyam were examined by the learned court below as DW5 and DW 10 respectively & who have deposed in favour of the defendant-Padam Singh about the said oral gift and, therefore, the defendant cannot be said to be in permissive possession of the plaintiff since 1989 and the present suit filed by the plaintiff-Mohan Lal was wrongly decreed in favour of the plaintiff, though from the plaintiff's side only one witness, the plaintiff himself was examined as P.W.1. Learned counsel for the appellant, Mr. R.K.Thanvi also submitted that said Shri Prithvi Raj Rajpurohit expired in 2006 and the defendant Padam Singh himself expired during the pendency of the present appeal in 2013. Various documentary evidences for construction cost having been made by his father-in-law Prithvi Raj was produced before the learned trial court. Learned counsel fairly conceded that the oral gift is not recognized by law and only under the Mohammedan Law such oral gift is permitted and there is no documentary evidence of such gift made in favour of the defendant Padam Singh.