- (1.) D. S. Sinha, J. Heard Sri Gopal Narayan, holding brief of Sri Shyam Narayan, learned counsel appearing for the defendant- appellant.
(2.) BY means of this appeal under Section 100 of the Code of Civil Procedure, 1908, hereinafter called the Code, the appellant seeks to assail the decree and judgment dated 17th September, 1977 of the Additional District Judge II, Gorakhpur, passed in Civil Appeal No. 11 of 1976 whereby the decree and judgment dated 17th January, 1976 of the Temporary Additional Civil Judge, Gorakhpur dismissing Suit No. 37 of 1972 between Bipta Devi and Chandrapal and others, has been set aside and the suit of Smt. Bipta Devi, the plaintiff-respondent No. 1, has been decreed. On 5th February, 1972 the plaintiff-respondent instituted a suit for partition of the property in dispute claiming one-half share therein on the assertion that she acquired interest in the property in dispute through the sale-deed dated 14th September, 1971 executed by Vindhyachal, who had received the said property as a gift from Nepal Ram vide gift-deed, dated 28th September, 1954. The defendant-appellant denied the claim of the plaintiff and contested the suit on the grounds that the name of Vindhyachal inserted in the gift deed fictitiously and Nepal Ram never intended to give his property to Vindhyachal ; that the gift-deed was executed on the condition that donee would maintain Nepal Ram during his life-time but Vindhyachal and his mother never served Nepal Ram and so the gift in favour could not take effect ; and that the gift was never acted upon by Vindhyachal conferring any right upon him in respect of the disputed property. The defendant-appellants also took up the plea of adverse possession.
(3.) ON the findings that Vindhyachal never accepted the gift, so sale-deed in favour of the plaintiff- respondent No. 1 was invalid ; that- the gift was not conditional on rendering of any service by Vindhachal and Nepal Ram never gave out the gift; that the claim of Vindhyachal was barred by acquiescence and estoppel and the suit was barred by time ; and that Chandrapal, defendant- appellant had made improvement from his own funds, the trial Court dismissed the suit of the plaintiff- respondent No. 1. The lower appellate court considered two points, namely : (a) where the gift-deed in favour of Vindhayachal from whom the plaintiff-respondent No. 1 had purchased one-half share of the property in dispute was valid and a legal title in respect thereof passed on in her favour, and (b) whether Chandrapal had prescribed any title in the house of dispute by adverse possession and the claim of the plaintiff was barred by limitation. On both the points the lower appellate court ruled against Chandrapal, the defendant-appellant. It held that the evidence tendered on behalf of Chandrapal, the defendant- appellant, did not prove that the name of Vindhayachal was recorded fictitiously in the gift- deed, that he was in adverse possession gift-deed at its inception. It further held that Chandrapal being a co-sharer alongwith the plaintiff-respondent No. 1 could not acquire any right by adverse possession and that the suit was, therefore, not barred by limitation.;