- (1.) B. K. Sharma, J. This is an appeal against the judgment and decree dated 12. 8. 1976 passed by Sri Chandra Mohan, District Judge, Banda in Civil Appeal No. 63 of 1971, Mohan Das and others v. Smt. Saida Jan, whereby he dismissed it and confirmed the judgment and decree passed by IIIrd Additional Civil and Sessions Judge, Banda in Original Suit No. 10 of 1970, Smt. Saida Jan v. Mohan Das and another.
(2.) SMT. Hasmat Jan had executed a gift-deed (Ex. 4) on 23. 4. 1938 in favour of Zahir Uddin. Sri Zahir Uddin executed a gift-deed dated 8. 7. 1957 (Ex. 1) in favour of SMT. Saida Jan, present plaintiff- respondent, which was registered on 5. 8. 1957. On 26. 4. 1960 Zahir Uddin executed a registered deed Ex. A-5 purporting to revoke the aforesaid gift-deed dated 8. 7. 1957 in respect of the disputed house. He also gave a notice (Ex. 6) on 30. 4. 60 to SMT. Saida Jan informing her of his said revocation deed. On 1. 7. 68 Zahir Uddin executed a mortgage deed with possession in respect of the said house in favour of original defendants-appellants Mohan Das Sindhi and SMT. Chanda Bai for a sum of Rs. 5,000/ -. The suit had been brought by Smt. Saida Jan against Mohan Das and wife Smt. Chanda Bai in respect of the house in dispute claiming decree for recovery of possession over a portion of it (and also seeking damages in respect of it) and also seeking permanent prohibitary injunction restraining in terference with her possession over the remaining part of the house. She claimed that she was owner in possession by virtue of the registered gift-deed dated 8. 7. 57, that she was given actual possession over the house and the title of deceased Zahir Uddin had come to an end on the execution of the gift-deed ; that she had brought Original Suit No. 416 of 68 seeking permanent injunction against Mohan Das Sindhi on 19. 8. 68 and interim prohibitary in junction was granted therein and served on him restraining interference with her possession, but despite the injunction order he took forcible possession over a part of the house specified in the plaint and in the site plan by break ing open lock in the night between 21st and 22nd August, 1968. The original defendant-appellants took various pleas. Some of the pleas were that the gift was obtained by playing fraud ; that the gift was incomplete and so was invalid ; that it was not followed up by actual possession by donor to Smt. Saida Jan and that there was a valid revocation of the gift deed and further that the mortgage deed was valid one and in pursuance of the said mortgage deed Smt. Chanda Bai entered into possession of the disputed house.
(3.) THE said defendant-appellants pleaded that Zahir Uddin was in posses sion all along uptil the time of the mortgage deed and thereafter the mortgagee Smt. Chanda Bai was in actual possession over the entire disputed property. Numerous other pleas were also taken but the same need no details, The trial court found that the execution of the gift deed dated 8. 7. 1957 by Zahir Uddin in favour of Saida Jan plaintiff and its attestation was not disputed, that before the gift-deed she (the plaintiff i. e. the donee) was living separate from Zahir Uddin in separate house along with her parents and other relations but on the day following the date of execution of the gift-deed she actually shifted to the house in suit with her all belongings and she had been living in it since then and Zahir Uddin continued to live in the house with her (plaintiff) till his death, that she used to cook and provide food to Zahir Uddin, that he had actually become dependent on her (plain tiff) since he had no means of his livelihood, that the wife of Zahir Uddin had died long ago, that Zahir Uddin had no issue of his own ; that the gift-deed itself contained the recital that from the date of the gift deed the donee has been put in proprietary possession and occupation of the premises and was free to let it out on rent or to transfer it in any other mode and that the donor had ceased to have any right in respect of the premises. The trial court further found that though the said recital in the gift deed regarding the possession itself may not be sufficient to hold that possession had actually been delivered, it certainly had the effect of shifting the onus of proof on those who challenged the gift. The trial court also placed on record the fact that the original title deed namely, the gift deed executed by Smt. Hashmat Jan in favour of Zahir Uddin (Ex. 4) dated 23. 4. 38 had been handed over by Zahir Uddin to her (Smt. Saida Jan) at the time of the gift as also the original gift-deed executed by him in her favour (Ex. IV and that both these documents i. e. gift- deed (Ex. 4) executed in favour of Zahir Uddin, and gift deed (Ex. 1) executed by Zahir Uddin in favour of Saida Jan had been filed by her (Smt. Saida Jan) at the time of presenting the suit. It was also held by the trial court that fact that not only the gift-deed but the original document of title also had been handed over to the donee is also indicative of delivery of possession.;