ASHIM KUMAR BANERJEE, J.

( 1 ) THIS Second Appeal by the plaintiff-appellant is directed against the judgment and decree dated 14-11-1980 passed by the VII Additional District Judge, Gorakhpur by which the said Court had allowed the appeal filed by the defendant and set aside the decree passed in favour of the plaintiff by the trial Court.

( 2 ) THE relevant facts, in brief, are that the plaintiff filed Original Suit No. 104 of 1976 against the defendant for cancellation of a gift deed dated 11-4-1969 executed by Purshottam Dass in favour of the defendant to the extent of 1/3rd share in the house in dispute. The plaintiff and the defendant are the real brothers and sons of the said Purshottam Dass. The plaintiff also sought possession over a portion of the house described in the plaint, if not found in possession, and also prayed for a decree of declaration to the effect that the plaintiff was the owner in possession of the portion of the house specified in the sketch map annexed to the plaint. The plaintiffs case was that the property in question was an ancestral property which on partition came to the share of their father Purshottam Dass who remained in possession of the same as

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