IMPORTANT POINT
Proof of gift-deed – Contents of gift deed can be treated as proved when executant and donor of gift deed examined himself as a witness.

JUDGMENT (ORAL)

This second appeal has been filed against the judgment/decree dated 05.08.2023 passed by District Judge, Dehradun in Civil Appeal No.80 of 2022, “Nitin Sharma vs. Vipin Sharma & another”, whereby the judgment/decree dated 23.05.2022 passed by the Civil Judge, (J.D.) Dehradun in OS No.268 of 2018 decreeing the suit of the respondent no.1/plaintiff for possession and recovery of damages, has been upheld.

2. Heard learned counsel for the parties on the admission.

3. Learned counsel for the appellant/defendant would submit that the substantial questions of law, framed in the memo of appeal, would arise for consideration in the present appeal.

4. For the sake of convenience, substantial questions of law framed in the memo of appeal are extracted as under:—

“(A) Whether in the absence of proof of contents of alleged gift deed dated 22.09.2017 by the plaintiff as per law being basis of the suit, impugned judgments could sustain being passed in express ignorance of Section 90A of Evidence Act, 1872.

(B) Whether once alleged gift deed is dated 22.09.2017 based on which suit was instituted on 02.07.2018 which is a fact borne from the record, the judgment of learned trial Court could sustain while relying upon Section 90 of Evidence Act, 1872 observing that plaintiff has produced original documents 20 years old and there is presumption of its genuineness.

(C) Whether both the Courts below failed to appreciate the distinction between proof of due execution of the document and the proof of contents of the document and passed the impugned judgments perversely.

(D) Whether in the absence of any evidence adduced by the plaintiff on record that defendant/appellant had been his licensee, impugned judgment could sustain being perverse and based on no evidence.

(E) Whether judgment of learned lower appellate Court is in conformity with the spirit of Order 41 Rule 31 CPC, without discussing and appreciating the grounds of appeal, the entire pleadings and evidence independently, and recording its conclusion on the issues involved independently.

(F) Whether impugned judgments passed by both the Courts below could sustain in the absence of proof of ingredients embodied under Section 122 read with Section 124 of Transfer of Property Act, 1882.”

5. Factual matrix of the case is that respondent no.1/plaintiff filed a suit for possession and damages against the appellant/defendant no.1 and respondent no.2/defendant no.2 (wife of appellant/defendant no.1) with averments that the suit property was purchased by Shri Ram Naresh Sharma, father of the appellant/defendant no.1 and respondent no.1/plaintiff on 15.01.1982; that, on 22.09.2017 Shri Ram Naresh Sharma gifted the suit property to respondent no.1/plaintiff by way of registered gift deed; that, thereafter respondent no.1/plaintiff filed the suit in the trial court for possession and damages against the appellant/defendant no.1 and his wife respondent no.2/defendant no.2 with averments that the possession of the appellant/defendant no.1 and respondent no.2/defendant no.2 was permissive in nature and now he does not want to keep them in possession and claimed the damages; that, the trial court decreed the suit whereafter appeal was preferred by the appellant/defendant no.1, which also met the same fate. Hence this second appeal.

6. Counsel for the appellant/defendant no.1 would submit that the impugned judgment of the Trial Court and the First Appellate Court are bad in the eyes of law as the Trial Court and the First Appellate Court have erred in not appreciating the fact that there was no acceptance of the gift allegedly made by his father Ram Naresh Sharma to his brother i.e. respondent no.1/plaintiff as per Section 122 of the Transfer of Property Act and even the contents of the gift deed dated 22.09.2017 were not proved.

7. Learned counsel for the appellant/defendant no.1 made another feeble argument on the point that the license to the appellant/defendant no.1, as alleged