Kishori Lal (deceased) through LRs v. Hemlata

(learned Trial Court) were upheld. (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a civil suit before the learned Trial Court against the defendants seeking a declaration that he is the owner in possession of the suit land mentioned in the head note of the plaint and the gift made by Asha Puran @ Puran Chand in favour of defendant no. 1 vide deed dated 18.09.1969 was illegal, which did not affect his legal rights. A consequential relief of permanent prohibitory injunction for restraining the defendant No. 1 from interfering in the plaintiff’s possession was also sought. It was asserted that Asha Puran @ Puran Chand, the plaintiff’s father, had executed a gift deed in favour of defendant no. 1 on 18.09.1969. He was not competent to execute the gift deed as the nature of the suit land in his hand was ancestral. The possession was also not delivered to the defendant No. 1. Asha Puran died in the year 1975. Defendant no. 2 is the daughter of Sain Dass, brother of the plaintiff’s father. Sain Dass died in the year 1953 and was succeeded by his only 3 son. Defendant no. 2 tried to raise the construction of a new house in a courtyard and adjoining areas in the year 1997. Plaintiff filed a civil suit in the Court of Learned Senior Sub- Judge Kangra to restrain defendant No. 2 from changing the nature of the suit land. Hence, the suit was filed to seek the relief mentioned above.

The suit was opposed by the defendants by filing a written statement taking preliminary objections regarding the lack of cause of action and locus standi, the suit being barred by limitation and Order II Rule 2 of the Code of Civil Procedure (CPC), and the plaintiff being estopped by his act and conduct to file the present suit. The contents of the plaint were denied on the merits. It was asserted that the plaintiff never occupied the suit land, and he deserted the house soon after his marriage with defendant no. 1. Defendant no. 1 took care of plaintiff's father, who executed a gift deed in favour of defendant no. 1 out of love and affection for her. Defendant no. 1 is in possession of the suit land. The only son of Sain Dass was found missing for more than 50 years, and no person had heard anything from him. Therefore, it was prayed that the suit be dismissed. 4

A replication denying the contents of the written statement and affirming those of the plaint was filed.

The following issues were framed by the learned Trial Court on 23.09.2000:

Whether the plaintiff is the owner in possession of the suit land, as alleged? OPP

2. Whether gift deed dated 18.09.1969 executed by Asha Puran in favour of defendant No.1 is illegal, null and void? OPP

3. Whether the suit property was ancestral in the hands of Asha Puran? OPP

4. Whether the suit of the plaintiff is within time? OPP

5. Whether the plaintiff is entitled for consequential relief of an injunction, as prayed for? OPP

Whether the suit of the plaintiff is not maintainable in the present form? OPD

Whether the plaintiff is estopped from filing the present suit by his act and conduct? OPD

Whether suit of plaintiff is barred under Order 2 Rule 2 CPC? OPD

Relief.

6. The parties were called upon to produce the evidence, and the plaintiff examined himself (PW1). The defendant no. 1 examined herself (DW1), and defendant no. 2 examined herself (DW2).

7. Learned Trial Court held that the plaintiff failed to prove the ancestral nature of the suit land. The plaintiff’s father 5 had executed a valid gift deed in favour of defendant no. 1. Defendant no. 1 was in occupation of the suit land, and the plaintiff did not occupy the suit land. The plaintiff had no authority to challenge the gift deed. The suit was barred by limitation. Hence, the learned Trial Court answered Issues Nos 4 and 6 in the affirmative, the rest of the issues in the negative and dismissed the suit filed by the plaintiff.

8. Being aggrieved by the judgment and decree passed by the learned Trial Court, the plaintiff filed an appeal, which was decided by the learned District Judge, Kangra at Dharamshala (learned Appellate Court). The Appellate Court concurred with the findings recorded by the learned Trial Court that the plaintiff was not proved to be in possession of the suit land. The defendant no. 1 was recorded to be in possession of the suit land in the revenue record, which carried with it a presumption of correctness. Plaintiff's father had executed a valid gift deed in favour of defendant no. 1. The suit was barred by limitation. The plaintiff had not proved that he was serving his father during his lifetime, whereas the version of the defendant, no. 1, that she had served the plaintiff's father was duly proved. There was no error in the judgment and decree 6 passed by the learned Trial Court. Hence, the appeal was dismissed.

9. Being aggrieved by the judgments and decree passed by learned courts below, the plaintiff filed the present appeal, which was admitted on the following substantial questions of law on 01.06.2010:

1. Whether gift deed (Ext.DW-1/A) cannot be relied as a valid document, being contrary to the ingredients required for the purpose, i.e. delivery of possession, Courts below misread and misappreciated this aspect, thus, impugned judgments and decrees are vitiated and liable to be set aside?

2. Whether in the statements of DW1 and DW2, the ancestral nature of the suit land having not been denied and Courts below, without looking into these aspects of the matter, passed impugned judgments and decrees, thus, the same stand vitiated?

I have heard Mr Mehar Chand Jamwal, learned counsel for the appellants and Mr Ashok Kumar Thakur, learned counsel for respondent No.2.

Mr Mehar Chand Jamwal, learned counsel for the appellants, submitted that plaintiff Kishori Lal has died and his name was substituted by defendant no. 1 and other legal heirs. Defendant No. 1 has also died. She had executed a Will in favour of Aradhana Sharma, one of the plaintiff’s legal heirs. Ratna 7 Sharma has become the owner of the suit land by virtue of the Will. Therefore, he prayed that the present appeal be allowed and the judgment and decree passed by the learned Courts below be set aside.

Mr Ashok Kumar Thakur, learned counsel for respondent No.2, submitted that the Court has the jurisdiction to decide the appeal only as per the substantial questions of law, and it is impermissible to decide any other question. The submissions made by learned counsel for the appellant are beyond the scope of substantial questions of law and cannot be adjudicated. Hence, he prayed that the appeal be dismissed.

I have given a considerable thought to the submissions made at the bar and have gone through the records carefully. Scope of the Regular Second Appeal

It was laid down by the Hon’ble Supreme Court in Nek Pal v. Nagar Palika Parishad, (2024) 12 SCC 347: 2024 SCC OnLine SC 1873 that the High Court cannot hear a second appeal without formulating the substantial questions of law and 8 putting the parties to the notice of the substantial question of law so framed. It was observed at page 348:

2. The aforesaid paragraph indicates that at the time of admitting the second appeal under Section 100CPC, substantial questions of law were not formulated. Unless substantial questions of law are formulated at the time of admission of the appeal or any time subsequent thereto, a second appeal cannot be finally heard. The reason is that a second appeal can be finally heard only on a substantial question of law formulated earlier. In fact, the act of finally hearing a second appeal without framing any substantial question of law is itself illegal.

3. There is nothing on record to show that the High Court formulated the substantial questions of law and gave an opportunity to the parties to argue on the basis of those substantial questions of law. All that the High Court says is that the Court has confined itself to three substantial questions of law.

4. The High Court did not put the rival advocates to the notice before the commencement of the hearing that it was proposing to hear the appeal on specific substantial questions of law. The High Court could have framed substantial questions of law and heard the appeal after a few days, so that the advocates had notice that the appeal would be heard on specific substantial questions of law.

5. Therefore, the procedure followed by the High Court is completely illegal and contrary to Section 100CPC….

This position was reiterated in U. Sudheera v. C. Yashoda, (2025) 4 SCC 215: 2025 SCC OnLine SC 104, wherein it was observed at page 224:

6. This Court has categorically held that the High Court acquires jurisdiction to deal with the second appeal on 9 merits only when it frames a substantial question of law as required to be framed under Section 100CPC; and it cannot grant an interim order without framing a substantial question of law. In this regard, a few decisions and the relevant paragraphs are usefully quoted below:

16.1. Ram Phal [Ram Phal v. Banarasi, (2003) 11 SCC 762]: (SCC p. 763, para 2) “2. … Aggrieved, the respondents herein filed a second appeal before the High Court against the judgment and decree of the first appellate court. When the second appeal came up for admission on 20-12-1999, the High Court directed to list the appeal for framing of the question of law on 28-3-2000. However, the High Court granted an interim order by staying the execution of the decree. It is against the said order granting interim relief that the respondent in the second appeal has preferred this appeal. This Court, on a number of occasions, has repeatedly held that the High Court acquires jurisdiction to decide the second appeal or deal with the second appeal on merits only when it frames a substantial question of law as required to be framed under Section 100 of the Civil Procedure Code. In the present case, what we find is that the High Court granted an interim order and thereafter fixed the matter for framing of the question of law on a subsequent date. This was not the way to deal with the matter as contemplated under Section 100CPC. The High Court is required to frame the question of law first and thereafter deal with the matter. Since the High Court dealt with the matter contrary to the mandate enshrined under Section 100CPC, the impugned order deserves to be set aside.” 10

16.2. Raghavendra Swamy Mutt [Raghavendra Swamy Mutt v. Uttaradi Mutt, (2016) 11 SCC 235: (2016) 4 SCC (Civ) 645]: (SCC p. 243, paras 23-24) “23. The submission of the learned Senior Counsel for the appellant is that Order 41 Rule 5 confers jurisdiction on the High Court while dealing with an appeal under Section 100CPC to pass an ex parte order, and such an order can be passed, deferring formulation of the question of law in grave situations. Be it stated, for passing an ex parte order, the Court has to keep in mind the postulates provided under sub-rule (3) of Rule 5 of Order 41. It has to be made clear that the Court, for the purpose of passing an ex parte order, is obligated to keep in view the language employed under Section 100CPC. It is because the formulation of a substantial question of law enables the High Court to entertain an appeal and thereafter proceed to pass an order, and at that juncture, needless to say, the Court has the jurisdiction to pass an interim order subject to the language employed in Order 41 Rule 5(3).

24. It is clear as day that the High Court cannot admit a second appeal without examining whether it raises any substantial question of law for admission, and thereafter, it is obliged to formulate the substantial question of law. Solely because the Court has the jurisdiction to pass an ex parte order, it does not empower it not to formulate the substantial question of law for the purpose of admission, defer the date of admission and pass an order of stay or grant an interim relief. That is not the scheme of CPC after its amendment in 1976, and that is not the tenor of precedents of this Court, and it has been 11 clearly so stated in Ram Phal v. Banarasi [Ram Phal v. Banarasi, (2003) 11 SCC 762]. Therefore, the High Court has rectified its mistake by vacating the order passed in IA No. 1 of 2015, and it is the correct approach adopted [Raghavendra Swamy Mutt v. Utaradi Mutt, 2016 SCC OnLine Kar 473] by the High impugned order Court. [Raghavendra Swamy Mutt v. Utaradi Mutt, 2016 SCC OnLine Kar 473] is absolutely impregnable.” Thus,

16.3. Santosh Hazari v. Purushottam Tiwari [Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179: (2001) 251 ITR 84] : (SCC p. 185, para 9) “9. The High Court cannot proceed to hear a second appeal without formulating the substantial question of law involved in the appeal, and if it does so, it acts illegally and in abnegation or abdication of the duty cast on the Court. The existence of a substantial question of law is the sine qua non for the exercise of the jurisdiction under the amended Section 100 of the Code. (See: Kshitish Chandra Purkait v. Santosh Kumar Purkait [Kshitish Chandra Purkait v. Santosh Kumar Purkait, (1997) 5 SCC 438], Panchugopal Barua v. Umesh Chandra Goswami [Panchugopal Barua v. Umesh Chandra Goswami, (1997) 4 SCC 713] and Kondiba Dagadu Kadam v. Savitribai Sopan Gujar [Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, (1999) 3 SCC 722] .)”

16.4. Roop Singh v. Ram Singh [Roop Singh v. Ram Singh, (2000) 3 SCC 708]: (SCC p. 713, para 7) “7. It is to be reiterated that under Section 100CPC, the jurisdiction of the High Court to entertain a second appeal is confined only to 12 such appeals which involve a substantial question of law, and it does not confer any jurisdiction on the High Court to interfere with pure questions of fact while exercising its jurisdiction under Section 100CPC.”

16.5.SBI v. S.N. Goyal [SBI v. S.N. Goyal, (2008) 8 SCC 92: (2008) 2 SCC (L&S) 678]: (SCC p. 104, para 15) “15. It is a matter of concern that the scope of second appeals and also the procedural aspects of second appeals are often ignored by the High Courts. Some of the oft-repeated errors are: (a) Admitting a second appeal when it does not give rise to a substantial question of law. (b) Admitting second appeals without formulating a substantial question of law. (c) Admitting second appeals by formulating a standard or mechanical question, such as ‘whether on the facts and circumstances the judgment of the first appellate court calls for interference’ as the substantial question of law. (d) Failing to consider and formulate relevant and appropriate substantial question(s) of law involved in the second appeal. (e) Rejecting second appeals on the ground that the case does not involve any substantial question of law, when the case in fact involves substantial questions of law. (f) Reformulating the substantial question of law after the conclusion of the hearing, while preparing the judgment, thereby denying an opportunity to the parties to make submissions on the reformulated substantial question of law. 13 (g) Deciding second appeals by reappreciating evidence and interfering with findings of fact, ignoring the questions of law. These lapses or technical errors lead to injustice and also give rise to avoidable further appeals to this Court and remands by this Court, thereby prolonging the period of litigation. Care should be taken to ensure that the cases not involving substantial questions of law are not entertained, and at the same time ensure that cases involving substantial questions of law are not rejected as not involving substantial questions of law.”

16.6. Municipal Committee, Hoshiarpur v. Punjab SEB [Municipal Committee, Hoshiarpur v. Punjab SEB, (2010) 13 SCC 216: (2010) 4 SCC (Civ) 861]: (SCC pp. 224-25, para 16) “16. … The court cannot entertain a second appeal unless a substantial question of law is involved, as the second appeal does not lie on the ground of erroneous findings of fact based on an appreciation of the relevant evidence. The existence of a substantial question of law is a condition precedent for entertaining the second appeal; on failure to do so, the judgment cannot be maintained. The existence of a substantial question of law is a sine qua non for the exercise of jurisdiction under the provisions of Section 100CPC. It is the obligation of the court to further clear the intent of the legislature and not to frustrate it by ignoring the same.”

16.7. Umerkhan v. Bismillabi [Umerkhan v. Bismillabi, (2011) 9 SCC 684: (2011) 4 SCC (Civ) 823]: (SCC p. 687, para 11) “11. In our view, the very jurisdiction of the High Court in hearing a second appeal is 14 founded on the formulation of a substantial question of law. The judgment [Bismilabi Aziz v. Umerkhan Sardarkhan Pathan, SA No. 528 of 2001, order dated 27-11-2009 (Bom)] of the High Court is rendered patently illegal if a second appeal is heard and the judgment and decree appealed against are reversed without formulating a substantial question of law. The second appellate jurisdiction of the High Court under Section 100 is not akin to the appellate jurisdiction under Section 96 of the Code; it is restricted to such substantial question or questions of law that may arise from the judgment and decree appealed against. As a matter of law, a second appeal is entertain able by the High Court only upon its satisfaction that a substantial question of law is involved in the matter and its formulation thereof. Section 100 of the Code provides that the second appeal shall be heard on the question so formulated. It is, however, open to the High Court to reframe substantial question of law or frame substantial question of law afresh or hold that no substantial question of law is involved at the time of hearing the second appeal but reversal of the judgment and decree passed in appeal by a court subordinate to it in exercise of jurisdiction under Section 100 of the Code is impermissible formulating without substantial question of law and a decision on such question.”

16.8. In Bhagyashree Anant Gaonkar [Bhagyashree Anant Gaonkar v. Narendra, (2025) 5 SCC 451: 2023 SCC OnLine SC 1236], this Court has observed that the exclusive jurisdiction of the High Court to deal with a regular second appeal is stipulated in Section 100CPC, which grants power to the High Court to 15 consider a regular second appeal only on a substantial question of law; and after referring to the aforesaid earlier judgments, has ultimately, set aside the impugned judgment [Narendra v. Bhagyashree Anant Gaonkar, 2023 SCC OnLine Kar 65] passed in the regular second appeal and remanded the matter to the High Court for a fresh consideration after ascertaining whether substantial questions were framed at the time of admitting the matter and if not, to frame the substantial questions of law on hearing the learned counsel for the respective parties and thereafter to dispose of the second appeal in accordance with law.

16.9. Following the aforesaid judgments, this Court in Hemavathi v. V. Hombegowda [Hemavathi v. V. Hombegowda, (2025) 5 SCC 442: 2023 SCC OnLine SC 1206], has observed that if no substantial question of law arose in the case, then the appeal could not have been entertained and ought to have been dismissed at the stage of admission. The relevant passage reads as under : (SCC paras 14-15) “14. The jurisdiction of the High Court to entertain a second appeal is well-known. It is a unique jurisdiction of the High Court where the High Court can entertain a regular second appeal purely on a “substantial” question of law, not even a question of law or a question of fact. It is a settled law that the first appellate court is the final Court insofar as the question of facts are concerned and it is only when substantial questions of law would arise in a case that the High Court can entertain a regular second appeal and if at the stage of admission such substantial questions of law are discerned by the High Court the same would have to be framed and the appeal(s) would have to be admitted. It is 16 only thereafter that the parties have to be heard on the substantial questions of law that are framed [V. Hombegowda v. Hemavathi, 2022 SCC OnLine Kar 1710] by the High Court at the stage of admission.

15. However, the CPC gives power to the High Court to frame additional substantial questions of law or to mould the substantial questions of law already framed on hearing the parties at the time of final hearing of a second appeal. In the event the respondents before the High Court are on record even at the stage of admission of a regular second appeal, and the same is to be disposed of finally, even at this stage, substantial questions of law must be framed and answered before the regular second appeal is admitted and disposed of.”

7. As per Section 100, a High Court can proceed to hear a second appeal only if the case involves a substantial question of law, implying that when the appeal is taken up for admission, it must satisfy itself that a substantial question of law is involved. Thereafter, the High Court must frame such a question and direct the parties to submit their arguments on such a question. The scheme of the Code also enables the High Court to hear the parties on any other substantial question of law, not framed by it at the first hearing, but during the course of the hearing, for the reasons to be recorded. Again, if the Court is not satisfied at the first hearing that the case does not involve a substantial question of law, it cannot proceed further. Once such an additional question of law is framed during the course of hearing, the parties must be given the opportunity to submit their arguments on the other substantial question of law(s).

8. We take cognisance of the fact that in some High Courts, there is a practice to order notice of motion, whereby even before an appeal is admitted, an opportunity is granted to the respondents therein to contest the case. In such a case, it is implied that the High 17 Court is not satisfied prima facie with the case. Such dissatisfaction could be either for a reason that the case does not involve a substantial question of law or for a reason that, in the facts of the case, the question of law, though substantial, would not warrant interference. In such cases, though the High Court in exercise of its power under Section 151CPC is generally empowered to grant interim orders to preserve the subject-matter of the dispute and to avoid multiplicity of proceedings, we are of the opinion, the Court cannot grant any interim protection to the appellant, unless the substantial question of law is framed under Section 100(4) or as per the proviso.

On the other hand, if the High Court is prima facie of the view that the substantial question of law involved would not require much time for disposal, the Court is bound to frame the substantial question of law at the stage of admission and then order short notice. The High Court cannot use its inherent power under Section 151 in violation of the express mandates in other provisions of the Code. We find support for this view from the following passage in Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal [Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, 1961 SCC OnLine SC 17: AIR 1962 SC 527: 1962 Supp (1) SCR 450] : (SCC OnLine SC para 42) “42. The Code of Civil Procedure is undoubtedly not exhaustive: it does not lay down rules for guidance in respect of all situations, nor does it seek to provide rules for the decision of all conceivable cases which may arise. The civil courts are authorised to pass such orders as may be necessary for the ends of justice or to prevent abuse of the process of court, but where an express provision is made to meet a particular situation, the Code must be observed, and departure therefrom is not permissible.

As observed in Maqbul Ahmed v. Pratab Narain Singh [Maqbul Ahmed v. Pratab Narain Singh, 1935 SCC OnLine PC 5: (1934-35) 62 IA 80] ‘It is 18 impossible to hold that in a matter which is governed by an Act, which in some limited respects gives the court a statutory discretion, there can be implied in court, outside the limits of the Act a general discretion to dispense with the provisions of the Act’. Inherent jurisdiction of the court to make orders ex debito justitiae is undoubtedly affirmed by Section 151 of the Code, but that jurisdiction cannot be exercised so as to nullify the provisions of the Code. Where the Code deals expressly with a particular matter, the provision should normally be regarded as exhaustive.”

Therefore, it is apparent that the jurisdiction of the Court deciding the Regular Second Appeal is restricted to the substantial questions of law formulated by the Court, and it is impermissible to adjudicate any other question which may be raised by any party. Hence, the submission raised on behalf of the appellants that Aradhana, legal heir of the plaintiff, has got the property from defendant no. 1 by virtue of the Will and the appeal be dismissed cannot be adjudicated. Substantial Question of Law No. 1:

The plaintiff Kishori Lal (PW1) claimed that Asha Puran @ Puran Chand and Gopala were brothers. The suit land was ancestral in the hands of Asha Puran, who was not competent to execute any gift deed in favour of any person. 19

Learned Courts below had rightly pointed out that the plaintiff had not produced any mutation of inheritance in favour of Asha Puran @ Puran Chand, and there was no evidence of the fact that Asha Puran had got the property from his father or grandfather. It was laid down by the Hon’ble Supreme Court in Govindbhai Chhotabhai Patel v. Patel Ramanbhai Mathurbhai, (2020) 16 SCC 255: 2019 SCC OnLine SC 1245 that the burden of proving the ancestral nature of the property lies upon the person who asserts so. It was observed at page 267: 20…The burden of proof that the property was ancestral was on the plaintiffs alone. It was for them to prove that the will of Ashabhai intended to convey the property for the benefit of the family so as to be treated as ancestral property. In the absence of any such averment or proof, the property in the hands of donor has to be treated as self-acquired property.

The plaintiff filed a copy of Misal Haqiat, but the land mentioned in the Misal Haqiat is not connected to the suit land. Therefore, learned Courts below had rightly held that the suit land was not proved to be ancestral in nature.

The gift deed (Ext.DW1/A) was executed on

18.09.1969 and was proved on 27.05.2002. Section 90 of the Indian Evidence Act provides that where any document purported to be or proved to be 30 years old is produced from the 20 proper custody, the Court may presume that signatures and every part of such document are in the handwriting of that particular person, and it was duly executed and attested by the persons by whom it purports to be executed and attested. It was laid down by the Hon’ble Supreme Court in State of A.P. v. Star Bone Mill & Fertiliser Co., (2013) 9 SCC 319: 2013 SCC OnLine SC 176 that Section 90 of the Indian Evidence Act dispenses with the proof of a document that would be required in the usual course of events. It was observed at page 325:

15. Section 90 of the Evidence Act is based on the legal maxims: nemo dat qui non habet (no one gives what he has not got); and nemo plus juris tribuit quam ipse habet (no one can bestow or grant a greater right, or a better title than he has himself). This section does away with the strict rules, as regards the requirement of proof, which are enforced in the case of private documents, by giving rise to a presumption of genuineness, in respect of certain documents that have reached a certain age. The period is to be reckoned backwards from the date of the offering of the document, and not any subsequent date, i.e. the date of the decision of suit or appeal. Thus, the said section deals with the admissibility of ancient documents, dispensing with proof as would be required, in the usual course of events, in a usual manner.

In the present case, the gift deed was produced by the defendant no. 1, the donee, and it came from proper custody. Hence, it is presumed to be validly executed under Section 90 of 21 the Indian Evidence Act, and the plaintiff was required to rebut the presumption.

The plaintiff stated that he was not aware of the execution of the gift deed. Defendant No. 1 was not in possession of the suit land. Plaintiff's father was not competent to execute the gift deed. It is apparent from the statement of the plaintiff that he had not specifically assigned any reason to show that the gift deed is invalid. He claimed that he was not aware of the gift deed. Therefore, he could not have been aware of the circumstances in which the gift deed was executed. Hence, his testimony was not sufficient to rebut the presumption.

Defendant No. 1 claimed that she used to serve her father-in-law after the plaintiff had left his home. Her father- in-law executed a gift deed in her favour. She had taken care of her father-in-law during her lifetime. Her version is duly corroborated by Hem Lata (DW2), who stated that defendant no. 1 used to take care of the plaintiff’s father, and the plaintiff never resided at home. These admissions corroborate the recitals of the gift deed that defendant no. 1 was serving the deceased, and a gift deed was executed by plaintiff’s father in 22 favour of defendant no. 1 in lieu of the services rendered by her. Therefore, learned Courts below had rightly held that the gift deed (Ext.DW1/A) was valid.

It was submitted that the plaintiff was in possession, and the essential condition of the gift deed of handing over the property was missing. This submission cannot be accepted. The plaintiff admitted in his cross-examination that he had left his home after his marriage and gone to Bombay. He had married in Bombay. His wife died. Thereafter, he married Jugendro, and he had five children. These admissions corroborate the defendant's version that the plaintiff had left his home and was not in possession of the suit land.

Therefore, there is no misreading or misappreciation of the evidence. Hence, this substantial question of law is answered accordingly. Substantial Question of Law No.2:

The burden to prove the ancestral nature of the suit land was upon the plaintiff, and such a burden could have been discharged by proving that the plaintiff's father had got the property from his father, grandfather or great grandfather, such 23 a burden could not have been discharged merely by the fact that the ancestral nature of the property was not specifically denied by the defendants on oath. Therefore, this substantial question of law is answered accordingly. Final Order:

In view of the above, there is no infirmity in the judgment and decree passed by the learned courts below. Hence, the present appeal fails and is dismissed.

Records of the learned Courts below be returned forthwith. 6th July, 2026 (Nikita) (Rakesh Kainthla) Judge