Hon’ble Mrs. Poonam Srivastava, J.—Heard Sri M.D. Singh ‘Shekhar’ learned counsel for the appellant and Sri Ajit Kumar, Advocate, appearing for the respondents.

2. This is defendant’s second appeal arising out of judgment and decree dated 28.10.1997 passed by the IXth Additional District Judge in Civil Appeal No. 661 of 1983 setting aside the judgment and decree dated 7.3.1983 passed by IInd Additional Civil Judge in Original Suit No. 130 of 1980.

3. The dispute is in respect of the house No. 88/85, Chamanganj, Kanpur Nagar. Facts giving rise to the dispute are that the plaintiff filed a suit for declaration that the mortgage deed dated 21.11.1967 and also sale deed dated 21.12.1970 in respect of the disputed property void and consequently cancel the sale-deed. In the alternative, the plaintiff claimed redemption of the house in question in the event the mortgage is held to be valid. Father of plaintiff, Wali Mohammad Khan purchased two plot Nos. 55 and 56 in Block No. F Sisamau, Kanpur Nagar and thereafter got the house constructed, which were alloted municipal numbers 88/85, Chamanganj, Kanpur Nagar.

4. The disputed property was gifted to the plaintiff by means of an oral gift and the plaintiff was put in possession. On the very same day, a sale deed was also executed in favour of the plaintiff’s mother (wife of Wali Mohammad Khan) in respect of the same property. Fact of oral gift was clearly mentioned in the Will. It is further contended that the plaintiff executed a deed of mortgage in respect of the disputed premises in favour of the defendant for a sum of Rs. 11,000/- on 21.11.1967. The defendant obliquely obtained the sale deed in respect of the same property taking advantage of the old age and illness of the father of plaintiff. It is specifically pleaded that the defendant/appellant got the sale deed executed fraudulently and without any consideration on 21.12.1970 and therefore, it was liable to be cancelled. The defendant was never put in possession on the basis of the said usufructuary mortgage or the sale deed. Cause of action arose and, therefore, the suit was instituted.

5. The defendant disputed contention of the plaintiff by filing written statement. Case set up by the defendant was that Wali Mohammad Khan was the sole owner of the house in question. Relationship between the plaintiff with his father was strained since before the year 1960 and the plaintiff was turned out from the house. Factum of the gift set up in the plaint was specifically denied. The defendant claimed that she was put in possession after execution of the mortgage and subsequently sale deed was executed in her favour for valid consideration. Contention of the defendant was that the plaintiffs father used to come and stay with the defendant in connection with his treatment as a licensee in one of the Kotharis of the disputed house, where he died in the month of May, 1971. It was only on the request of Smt. Niyaj Bano (daughter) and Smt. Nawabun wife of Wali Mohammad and his son (plaintiff), they were allowed to continue to be in occupation of the Kothari. The defendant permitted to use Kothari and a portion of the common room as a licensee subsequent to death of Wali Mohammad Khan. Since they did not vacate the disputed accommodation, Original Suit No. 2441 of 1971 was instituted by Smt. Jamila against the plaintiff Shami Mohammad, Smt. Niyaj Bano and Smt. Nawabun for possession after revoking their licence. The suit was decreed ex parte on 22.4.1980. The defendant claimed to have come in possession of the entire house pursuant to the aforesaid decree. The ex parte decree was set aside and the application filed by the plaintiff under Order IX Rule 13, C.P.C. was allowed. However, according to the appellant, she continued to be in possession after the ex parte decree in the said suit.

6. The present suit was instituted by the plaintiff, which was dismissed and appeal was allowed after recording findings that necessity to execute the de