Pathak J. - (1.) THIS special appeal Is directed against the judgment and decree of a learned single Judge of this Court affirming the dismissal of a suit by the trial Court.
(2.) RAFI Ullah Khan had a son, Rafi-ul-Qadar. Rafi-ul-Qadar had two wives, of whom the appellant, Noor Jehan Begum, is one. The first respondent, Muftkhar Dad Khan, is a son by the other wife. According to the appellant, on September 5, 1916 Rafi Ullah Khan ex ecuted a gift deed in favour of the appel lant transferring a grove comprised in three plots with a total area of 16.23 acres situated in Mauia Ahmadpur Niazpur, pergana and tehsil Shahjahanpur, district Shahiahanpur. It is alleged that Rafi Ullah Khan put her in proprietary posses sion of the grove. Admittedly, no muta tion proceedings were taken at the time. In September 1942, Rafi Ullah Khan caused a mutation application to be filed by the appellant and conveyed his written consent to the mutation.Before tho muta tion proceedings could conclude Rafi Ullah Khan died on September 25, 1942. There after, the first respondent opposed the mutation application and it was rejected. Upon a subsequent application, mutation was effected in favour of the first respon dent, the third to tenth respondents and one Shirin Begum, who claimed to be another wife of Rafi Ullah Khan. Alleg ing that she was the rightful owner of the grove under the gift deed, the appel lant instituted the present suit praying for declaration and possession in respect of the grove and also for damages on ac count of two Shisham trees cut down by the first respondent
(3.) THE suit was contested by the first and second respondents. The defence in the main was that Rafi Ullah Khan did not execute any gift deed in favour of the appellant, that in any event he never in tended to act upon the gift deed and he continued as before in proprietary pos session and enjoyment of the grove and possession never passed to the appellant. It was further, alleged that a few days before his death when Rafi Ullah Khan was unconscious the appellant obtained his thumb impression on some blank papers which were later employed in mutation proceedings in her favour. Sub sequently, after Rafi Ullah Khan's death the appellant herself made an application on December 20, 1942 as guardian of the minor heirs of Rafi Ullah Khan praying that mutation be effected hi their favour and the other heirs. That resulted in the grove being recorded in the names of the respondents.;