- (1.) G. N. Ray, J. Plaintiff-appellant has filed this appeal being aggrieved by the judgment and decree passed in Civil Appeal No. 205 of 1977 by Shri Shital Singh, Additional Civil Judge, Mathura on 20-8-1981 and that appeal arose out of O. S. No. 504/69.
(2.) PLAINTIFF has filed suit for Khas possession basing his claim on a gift made by one Purshotam Das to Smt. Kamlawati Bhauji on 26-1-89 who happens to be the 'nati of Smt. Kamlawati Bahuji. It was asserted by the plaintiff that Purshotam Das son of Keshav Das was the owner of the property althrough and he executed a gift dated 26-1-89 in respect of the suit property of other proprietors to Sm. Kamlawati Bahuji who entered into possession is pursuant to that deed. The defendants claimed that property in suit was gifted by one employee of Thakur Dwarkadish Ji in favour of the defendant No. 1. The defendant No. 2 executed a deed in favour of defendant No. 1 who was an employee of Thakur Dwarkadish Ji. The defendant No. 1 asserted title by virtue of adverse possession. The defendant further claimed that the suit property did not tally to schedule of deed gift made by Purshotam Das in favour of Smt. Kamlawati Bahuji. On perusal of pleadings, the learned trial Court framed issues and upon discussion regarding the possession and upon other materials on record both oral and documentary evidences, decreed the suit for possession, the defendant failed to prove any title whatsoever in suit property. However, the learned appellate court below held that plaintiff was to prove his title of the suit property and suit property was not identified and on discussion over the relevant materials found that only three sets of boundaries tallied. There was some description of the property which existed at the relevant time but that did not tally with the property in suit so he was pleased to hold property covered by the deed gift made in favour of Smt. Kamlawati Bahuji, dated 26-1-89 was not identical with the suit property. The learned appellate court held that the property was not properly described and the identity of the suit was doubtful and moreover the defendant claimed the property by adverse possession on the basis of an un-registered deed executed by defendant No. 1 to defendant No. 2 and he was pleased to hold that said deed was admissible in evidence and the defendant No. 2 was entitled to use the same as shield against the claim of plaintiff in view of Section 53-A of the Transfer of Property Act. Though the learned appellate court below did not mention Section 53-A of the Transfer of Property Act but from his discussions it was clear that he held that said unregistered document could be used as a shield against the claim of the plaintiff for possession. Learned Counsel for the appellant submitted that learned appellate court did not assign any reason for disbelieving plaintiff's evidences and simply used one word that the evidence as adduced by the plaintiff was not of worth for believing the same. Learned Counsel for the appellant submitted that this finding is a jumping conclusion without proper reasoning as such it was perverse finding. Learned Counsel for the appellant submitted that certified copy of the registered sale-deed dated 26-1-89 was more than 20 years old as such it was admissible in evidence and in this connection he has relied upon the decision as, 1983 All LJ. 865, wherein it has been held that certified copy of the gift-deed can be relied upon if it is more than 20 years old and that is admissible in evidence and that judgment was based upon a Full Bench decision of our Hon'ble Court as, in AIR 1989 All 385 and in that judgment the provisions of Section 27 and Articles 64 and 65 of Limitation Act, 1963 were also fully discussed and it has been held that it was for the party to prove his title by adverse possession and the party who based his claim on title was not required to prove that title was not extinguished by adverse possession. Learned Counsel for the appellant referred another Judgment as in AIR 1987 All. 25.
(3.) LEARNED Counsel for the respondents submitted that the learned appellate court thoroughly discussed materials on record regarding adverse possession and this Court in a second appeal should not disturb those findings cannot be said to be perverse because cogent reasons had been assigned by learned lower appellate court. The learned lower appellate court described the evidence of plaintiff as not of worth to be relied upon and it has been further submitted that since the plaintiff based his title upon a certified copy of the registered deed as such it was inadmissible in evidence in view of the provisions of Sections 90 and 90-A of the Indian Evidence Act and he referred a decision in AIR 1974 Alld. 389. LEARNED Counsel for the respondents referred another decision in 1997 (5) SCC, 438, wherein their Lordship of the Apex Court held that High Court while interfering in a second appeal must satisfy with substantial question of law and facts which are involved and if such proper grounds are not being taken in memo of appeal then it will be the duty of the High Court to formulate the substantial questions of law and give notice to opposite party and allow fair and proper opportunity to meet those point/points so that the otherwise may meet those point/points at the time of hearing. In this way the learned advocate for defendant-respondents submitted that the appeal should be dismissed with costs. Duly considered the submissions of both sides.;