Important Points
1. Section 3 of the Transfer of Property Act specifically states that no particular form need be followed in the matter of attestation. It can be at the first, as in this case, or at last page.
2. Where execution and validity of registered gift deed was not ques­tioned either in written statement or in cross examination or in argument, issue being a mixed question of fact and law could not be allowed to be raised for the first time in second appeal.

Judgment

K. Venkataswami, J.-This appeal by special leave is preferred against the judgment of the Punjab and Haryana High Court in R.S.A. No. 1807/71 dated February 3, 1982. The appellants are the legal represen­tatives of the deceased plaintiff. For the sake of convenience, the parties are referred hereinafter as ‘plaintiff’ and ‘defendants’. The second defendant, a proforma party, is the father of the first defend­ant.

2. The plaintiff filed Suit No. 722/67 for recovery of possession of the suit site from the defendants. According to the averments in the plaint, the suit site was acquired by the plaintiff under a gift deed dated 18.1.1961 registered on 9.2.1961 and marked as Exbt. P.W. 6/1 in the suit. One Kanwar Chander Raj Saran Singh was the donor under the said gift deed. The plaintiff before filing the present suit for possession preferred an application for ejectment of the defendants before the Rent Controller alleging that the first defendant who was a tenant under him denied the title. The learned Rent Controller alleg­ing that the first defendant who was a tenant under him denied the title. The learned Rent Controller alleging that the first defendant who was a tenant under him denied the title. The learned Rent Control­ler by his order dated 16.1.1967 held that the first defendant was a tenant under the plaintiff and further held that the first defendant was liable to be ejected from the suit site. However on appeal the appellant authority by its order dated 3.6.1967 reversed the finding of the learned Rent Controller and held that the plaintiff has not proved that there existed a landlord and tenant relationship. Accordingly, while allowing the appeal, the appellate authority dis­missed the application for ejectment preferred by the plaintiff.

3. In the light of the order of the appellate authority, the plaintiff filed the present suit for possession on the basis of the said gift deed. The plaintiff appears to have examined 13 witnesses on his side and placed a number of documents to support his claim for possession.

4. The defendants resisted the suit contending that they are the owners, that Kanwar Chander Raj Saran Singh had no connection whatsoever with the suit property and, therefore, had no right to make the gift deed in favour of the plaintiff. The gift deed, if any, he alleged, must be a devise by the plaintiff to grab the defendants’ property. The defendants also denied that the plaintiff was the land­lord of the suit site.

5. Defendants appear to have examined three witnesses.

However, the defendants have not filed any documents to substantiate their claim.

6. The trial Court on the basis of the pleadings framed the following issues:-

(i) Whether the plaintiff is the owner of the property in suit as alleged.

(ii) Whether the suit is within time.

(iii) Relief.

The trial Court on the basis of the oral and documentary evidence found that the plaintiff derived title to the suit property under the gift deed dated 18.1.1961 and that the suit was in time. Accordingly a decree for possession was granted on 15.1.1971 by the trial Court.

7. The defendants aggrieved by the decree for possession granted by the trial Court preferred in appeal to the Senior Sub-Judge, Gurgaon. Before the first appellate Court for the first time the Defendants raised an objection that the gift deed has not been duly proved in accordance with the provisions of Transfer of Property Act and hence cannot be taken into account to confer title on the plaintiff. The lower appellate Court, for the reasons stated in its judgment, held that the gift deed was not duly proved and hence the plaintiff cannot be held to be the owner of the suit site. On that ground the lower appellate court allowed the appeal and dismissed the suit preferred by the plaintiff. The lower appellate Court, however, held that the suit was in time and the original owner of the suit site was Kanwar Chander Raj Saran Singh.

8. The