1. This appeal was admitted by this Court vide order dated 21.11.2007 for final hearing on the following substantial questions of law:

"(1) Whether the Courts below have committed the error of law in not taking the correct view of the provisions of the Benami Transaction (Prohibition) Act, 1988?

(2) Whether the judgment and decree passed by the Courts below are inconsistent with the evidence on record?

(3) Whether the judgment and decree are illegal and perverse so far as the assessment of difference of stamp to be paid in context with the valuation of the suit is concerned?"

2. Being aggrieved by the judgment and decree dated 27.8.1998 passed by Additional District Judge, Mandsaur in Civil Regular Appeal No.8-A/1998 whereby the judgment and decree dated 23.3.1996 passed by 2nd Civil Judge, Class I, Mandsaur in Civil Suit No.153-A/1995 whereby the suit filed by the appellant for partition and for cancellation of gift-deed dated 8.8.1961 was dismissed, was maintained present appeal has been filed.

3. Undisputed facts of the case are that appellant and respondent are the real brothers and are sons of Madhavlal. The suit property was purchased vide registered sale-deed dated 3.2.1943 by Madhavlal father of appellant and respondent. In the suit it was alleged that since appellant and respondent are the brothers therefore, both of them are having equal rights in the suit property. It was alleged that Madhavlal executed gift deed in favour of the respondent on 8.8.1961 whereby the suit property was gifted by him to the respondent. It was alleged that Madhavlal was having no right to transfer or gift the property of which he was not the owner. It was also alleged that there was another property which was purchased by Madhavlal in his own name vide sale-deed dated 14.12.1943. It was alleged that both the properties were purchased by deceased Madhavlal from the funds of undivided joint Hindu family, therefore, in both the properties, appellant is having equal right. In the suit filed by the appellant it was prayed that a decree for partition be passed and that gift deed dated 8.8.1961 be declared as null and void. The suit was contested by the appellant on various grounds including the ground that the suit itself is not maintainable and be dismissed. It was alleged that the suit filed by the appellant is barred by time. After framing of issues and recording of evidence learned trial Court dismissed the suit against which appeal was filed which was also dismissed. Hence this appeal.

4. Mr. Ajay Misra, learned counsel for the appellant argued at length and submits that the impugned judgment passed by the learned Court below are illegal, incorrect and deserves to be set aside. It is submitted that since the appellant is not party to the gift-deed dated 8.8.1961 therefore, starting point of limitation is from the date of knowledge of appellant when the appellant came to know that father of the appellant has executed gift-deed in favour of the respondent. Apart from this, learned counsel submits that there was no justification on the part of the learned trial Court in dismissing the suit filed by the appellant as the appellant was claiming partition in both the properties out of which one property was purchased in the name of father of the parties. It is submitted that in the facts and circumstances of the case, appeal filed by the appellant be allowed and the impugned judgment be set aside.

5. Mr. B.I. Mehta, learned counsel for the respondent submits that no illegality has been committed by the Courts below in dismissing the suit filed by the appellant. It is submitted that after due appreciation of evidence both the Courts below found that the appellant is the co-owner of the suit property which was purchased by the father of appellant and respondent vide sale-deed dated 3.2.1943. It is submitted that in the facts and circumstances of the case and keeping in view concurrent finding of fact, the judgment passed by the Courts below, appea