HONOURABLE MR. JUSTICE v. NATH ORAL ORDER
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.128 of 2011 ====================================================== Vijay Kumar Gupta , S/o Permeshwar Prasad, R/O vill-Basauli, Pargana- Berai, P.S. Basantpur, Dist-Siwan. .... .... Appellant/s Versus 1.Tarkeshwar Pd, 2. Ram Ayodhya Prasad, both sons of Hazari Sah and residents of Vill- Basauli, Pargana-Berai, P.S.-Basantpur, Dist-Siwan. 3. Mostt. Bachi Kuer, W/o Late Bhagwan Lal Sah, R/o vill-Basauli, Pargana-Berai, P.S. Basantpur, District-Siwan .... .... Respondent/s ======================================================
Legal Reasoning
Appearance : : Mr. For the Appellant/s : Mr. Raghav Prasad ====================================================== CORAM: HONOURABLE MR. JUSTICE V. NATH ORAL ORDER 4 13-02-2013 Heard Mr. Binod Kumar Singh, the learned counsel for the appellant and Mrs. Mira Kumari, the learned counsel for respondent no. 1. 2. The plaintiff has assailed the judgment of affirmance by the appellate court below upholding dismissal of the suit for declaration that the deed of gift executed by defendant no.3 Mostt. Bachi Kuer in favour of defendant nos. 1 and 2 is illegal, inoperative and void document and is not binding upon the 2 Patna High Court SA No.128 of 2011 (4) dt.13-02-2013 2 / 5 plaintiff. 3. As the factual matrix of the case would unveil, the property subject matter of the gift deed in question admittedly belonged to defendant no.3 Mostt. Bachi Kuer. The plaintiff claimed that Bachi Kuer had executed a deed of gift in favour of the plaintiff on 3-2-1984 and thereafter defendant nos. 1 and 2 got another gift deed executed by her in their favour. The plaintiff has specifically pleaded that the gift deed in favour of defendant nos. 1 and 2 was not executed on 11-1-1984 and registered on 20-2-1984, but in fact the execution and registration had been done on 20-2-1984 itself, but antedating had been done to show that the said gift deed had been executed on 11-1-1984. The plaintiff by amendment in the plaint has brought the details of the fact of antedating. The defendant nos. 1 and 2 have denied the claim of the plaintiff and asserted that the defendant no.3 has, in fact, executed the gift deed in their favour on 11-1-1984, but due to her illness it could be registered only on 20th February, 1984. The donor defendant no.3 Bachi Kuer has also filed her written statement wherein she has accepted the execution of the gift deed on 11-1-1984 in favour of defendant nos. 1 and 2 and has further denied to have executed any gift deed on 3-2-1984 in favour of the plaintiff knowingly and willingly. The defendant no. 3 has also pleaded that the deed of 3 Patna High Court SA No.128 of 2011 (4) dt.13-02-2013 3 / 5 gift dated 3-2-1984 in favour of the plaintiff said to have been executed by her, is forged and fabricated document. 4. On the basis of the pleadings and evidence of the parties the trial court came to the finding that the plaintiff has failed to establish that the gift deed in favour of defendant nos. 1 and 2 executed by defendant no.3 Mostt. Bachi Kuer is an antedated document and the date of execution has been shown as 11-1-1984 by antedating it. The appellate court below, on reappraisal of the evidence, has agreed with the findings of the trial court and dismissed the appeal. 5. Mr. Binod Kumar Singh, the learned counsel for the appellant has submitted that both the courts below have failed to take notice of the fact that defendant no.3 Mostt. Bachi Kuer was there in the Registration Office on 3-2-1984 on which date the gift deed had been registered in favour of the plaintiff and also on 16- 2-1984 on which date the cancellation deed executed by Mostt. Bachi Kuer cancelling the gift deed of the plaintiff has been registered. It has been urged that the registration of the gift deed on 3-2-1984 itself reveals and leads to the inference that the antedating is there in absence of any further explanation by the defendants for not presenting the gift deed purported to have been executed on 11-1-1984 for registration on 16-2-1984 itself. It has 4 Patna High Court SA No.128 of 2011 (4) dt.13-02-2013 4 / 5 been further submitted by the learned counsel that these facts are apparent from the records itself and therefore there was no need for the plaintiff to lead any further evidence to establish his case of antedating. 6. There is no dispute that defendant no.3 Mostt. Bachi Kuer was owner of the property subject matter of the gift deed in question. The plaintiff claimed that defendant no.3 had earlier executed a gift deed in his favour on 3-2-1984 and thereafter the defendant nos.1 and 2 obtained the gift deed in their favour from her on 20th February, 2084, and by antedating the same they have shown its execution on earlier date i.e., 11-1-1984. The defendant no.3 has filed her written statement in the suit and has accepted the valid execution of the gift deed in favour of defendant nos. 1 and 2 on 11-1-1984 and has denied to have executed any gift deed in favour of the plaintiff knowingly and willingly. Although the plaintiff has pleaded the fact of antedating in the gift deed of the defendants, but no direct evidence has been led by the plaintiff to establish it. The submission on behalf of the appellant centers around the circumstances of the presence of the donor defendant no.3 in the Registration Office on 16-2-1984 for drawing the inference that the gift deed registered on 20-2-1984 was antedated by obtaining the old stamps and showing the execution on 11-1- 5 Patna High Court SA No.128 of 2011 (4) dt.13-02-2013 5 / 5 1984. This submission of the plaintiff has been considered by both the courts below and they have refused to accept the same. I do not find any unreasonableness in the findings of both the courts below in this regard. The fact remains that the plaintiff although specifically alleged antedating of the gift deed in question, but has not led any direct evidence to establish the said fact. There is, thus, no perversity in the judgments of the courts below.
Decision
7. In the result, I do not find any substantial question of law arising in this appeal, which is, accordingly, dismissed. (V. Nath, J) B.Roy/-