D. C. SRIVASTAVA, J.

( 1 ) THIS is second appeal by defendant No. 1 Smt. Ketki Devi.

( 2 ) THE brief facts are that the plaintiff Laxman filed a suit against the defendants for cancellation of the gift deed dated 5/01/1970 executed by Fateh Singh in favour of defendant No. 1 Smt. Kiran Devi alias Ketki, appellant, alias Kailashi. Fateh Singh was the brother of the plaintiff Laxman Singh. Lala Ram was the son of Fateh Singh. Wife of Lala Ram married with defendant No. 2 Roshan Lal. Lala Ram died in 1955. It was alleged that defendant No. 1 in collusion with defendent No. 2, with a view to grab the land of Fateh Singh got a forged and fictitious gift deed prepared on 5th January, 1970. It was alleged that the gift deed was never executed by Fateh Singh and that the said gift deed was not binding upon the plaintiff. The allegation of fraud in obtaining the gift deed was also made.

( 3 ) DEFENDANT No. 1 contested the suit pleading that the gift deed was executed by Fateh Singh on 5/01/1970 in her favour. It was denied that the defendant No. 1 married with defendant No. 2. It was also denied that Lala Ram died in 1955. It was alleged that Fateh Singh had 1/3 share in Sirdari land which was the subject matter of the gift deed. Fateh Singh applied before the Tehsildar for declaration of bhumidhari rights and deposited 10 times annual rent on 28/11/1969. Bhumidhari Sanad was issued on 29/06/1970 in favour of Fateh Singh. Fateh Singh was thus entitled to execute the gift deed of his 1/3 rd share. The gift deed was, therefore, said to be valid. In the year 1973 Fateh Singh died whereupon defendant No. 1 applied for partition of his 1/3rd share, which was decreed by the revenue Court on 21/01/1981 and preliminary decree was passed. In those proceedings no objection was raised that the gift deed is fraudulent, forged and fictitious.

( 4 ) THE trial Court found that the gift-deed was executed by Fateh Singh and he was entitled to execute the same because he became bhumidhar and obtained bhumidhari Sanad. The suit was accordingly dismissed. In appeal, the lower appellate Court partly allowing the appeal, set aside the impugned gift deed. It is, therefore this second appeal.

( 5 ) CROSS objection was also filed by Laxman.

( 6 ) I have heard the learned counsel for the parties in second appeal as well as in cross objection.

( 7 ) ONLY one substantial question of law was formulated in this second appeal, namely, whether the lower appellate Court is right in declaring the gift-deed as invalid without taking into consideration the date of death of the donor?

( 8 ) IN the course of argument, no dispute was raised regarding the date of death of donor, namely, Fateh Singh. Consequently there appears some clerical error in formulating the only substantial question of law. The real substantial question of law is whether Fateh Singh became bhumidhar by virtue of depositing 10 times rent from the date of deposit or from the date of declaration that he was bhumidhar or from the date of grant of bhumidhari Sanad.

( 9 ) THIS Court at the time of admitting the appeal did not formulate any other substantial certain terms and conditions but we are not aware question of law. There is concluded findings by the two courts below that the gift-deed was duly executed by Fateh Singh and it was not obtained by fraud nor it was forged and fictitious document. This finding is based upon proper appreciation of evidence on record, hence it cannot be reversed or interferred in this second appeal.

( 10 ) AS mentioned above, the only point for determination is whether Fateh Singh became bhumidhar of the land which was subject matter of the gift-deed from the date of deposit of 10 times rent or from the date of declaration by the Assistant Collector or from the date of grant of bhumidhari Sanad (certificate ).

( 11 ) THE learned counsel for the respondents argued that there has been conflict on judicial opinion of this Court on this point hence he suggested that the matter s

Click Here to Read the rest of this document