1. The appellant/original plaintiff has filed this Second Appeal under section-100 of the Civil Procedure Code, challenging the judgment and order passed by the learned District Judge, Bharuch in Regular Civil Appeal No.86/1982 dated 10th May, 1984, dismissing the said appeal and confirming the judgment and decree passed by the learned Civil Judge (Senior Division), Baroda, in Civil Suit No.555/1977, dismissing the said suit.

2. This Appeal was admitted by this Court on 13th April, 1985 and following substantial question of law was framed by the Court.

Whether in the facts and circumstances of the case, the lower courts erred in holding that there was no valid gift of the suit property and that the gift was nominal and not acted upon?

3. This Second Appeal was originally filed through the counsel of the appellant Mr. V.J. Desai. After his death, Mr. I.M. Kapur, the learned advocate appeared on behalf of the appellant. Thereafter, in Miscellaneous Civil Application No.1751/2009, Mr. L.R. Pathan, learned advocate appeared. The said Miscellaneous Civil Application was filed for restoration of Miscellaneous Civil Application No.3022/2008. Even in Civil Application No.1405/2010, the appearance of Mr. L.R. Pathan, the learned advocate is shown for the applicant/original plaintiff. In this view of the matter, the Court has passed an order on 9th September, 2010 in the present Second Appeal, directing the Registry to show the name of Mr. L.R. Pathan and Mr.M.S. Sapa, the learned advocates appearing for the appellant. Accordingly, the names of the learned advocates are shown. However, no one is present on behalf of the appellant. Since the matter is of 1985, the same is taken up for hearing.

4. In the Appeal memo, the challenge to the judgments and orders of the lower courts was made to the effect that the courts below have not considered the contents of the gift deed nor have considered the averments made in the said gift deed. In the said gift deed, it is specifically mentioned that possession of the property has been handed over to the donees and the heirs of the donor have nothing to do with the property and the donee has become the complete owner of the said property. The orders of the lower courts are also challenged on the ground that the lower courts have not considered the fact that the document has been shown with all the good sense of the donor and it is specifically averred that the gift is binding on his legal heirs. There was nothing to show that the said gift deed was nominal and never acted upon. The finding arrived at by the court below was against the documentary evidence on record. The gift deed was acted upon and thereafter release deed was executed in 1966 by the other two owners in favour of the plaintiff. The property was also mutated in the names of donees which clearly established that the gift deed was not nominal and was genuine. It is, therefore, submitted that the orders passed by the courts below deserve to be set aside and the Appeal deserves to be allowed.

5. Mr. Kashyap R. Joshi, learned advocate appearing for the respondents, on the other hand has submitted that there is a concurrent finding of facts of both the courts below and looking to the limited scope of Second Appeal, the Court may not entertain this Appeal and dismiss the same with costs. He has further submitted that the specific finding was recorded by both the courts below on the basis of evidence on record and hence re-appreciation of evidence is not permissible in this Second Appeal. The learned appellate judge has specifically held that though the deed of gift produced at Exh.40 does mention that the actual possession was handed over to the donees, the said statement made in the document is superfluous and not correct as is seen from the evidence before the court and the plaintiff gave her deposition in the suit at Exh.39. She said during the examination-in-chief that the original gift deed is not traceable. She further stated t