IMPORTANT POINT
Registered instrument carry presumption of its genuineness.

JUDGMENT (ORAL)

This Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as “the Code”) challenges the judgment and decree passed by the learned 3rd Additional District & Sessions Judge, Bhavnagar at Talaja in RCA No.2 of 2023, which in turn confirms the order passed by the learned 2nd Additional Civil Judge, Talaja, District: Bhavnagar, below Exhibit-18 and consequently below Exhibit-1 in RCS No.223 of 2021, by which the plaint of the appellant came to be rejected under Order VII Rule 11(d) of “the Code” on the ground that the suit challenging the execution of the gift deed is hopelessly barred by the law of limitation.

2. For convenience, the parties are referred to their original status i.e. plaintiff and defendant.

3. The brief facts of the case leading to filing of Second Appeal are as under:-

3.1 The plaintiff and defendant are real brother and sister. The plaintiff is residing at Talaja, Dist: Bhavnagar and respondent is residing with her family at Rajkot. The plaintiff is a Insurance Agent by profession.

3.2 That the Karimabad Co Opp. Housing Society, Talaja launched a residential scheme in the year of 1995 on the land bearing revenue survey No.46 paikee of Village: Talaja, Dist: Bhavnagar for the purpose of allotment of plots to the members of Islamic Khoja Community. It is stated that Plot No. 55 was allotted to the plaintiff in the year of 1995 Thereafter, lay out plan of the above stated society was revised and 67 plots were sanctioned and all the plots were renumbered. The plot No.55, which was allotted to plaintiff came to be renumbered as Plot No.63 and with respect to that, allotment latter has been issued to plaintiff by the society. Thus, present plaintiff is owner and occupier of the plot No. 63 (old No. 55) since 1995 and in possession even today.

3.3 The daughter of defendant-real sister got admission in Deakin University, Melbourne in Australia for her higher study and to show financially sound condition, property was required to be in the name of defendant and her husband to get the visa and other process of admission of her daughter. Therefore, defendant and her husband requested plaintiff to transfer the above stated plot to her name for certain period. Hence, as defendant is the real sister of plaintiff and for the higher study of his niece, the plaintiff executed a Gift Deed dated 18.05.2020 in favour of defendant with an oral mutual understanding that it will be revert back to plaintiff in future. Thus, the gift deed is only showy gift deed and was executed only with a view to help the real sister for her daughter’s higher study at Australia.

3.4 Thereafter, the daughter of respondent fell in love with a youth other than her religion and there was tense in the family and in the year of 2013, the husband of respondent detected cancer and he passed away. Thereafter, mother of plaintiff and respondent was detected with cancer in the year of 2014 and her treatment was running at Ahmedabad and Bombay. However, she passed away. Thus, the both the families of plaintiff as well as defendant were in sorrow due to demise of family members. Thereafter, in the year of 2017, the son of defendant wanted to go for higher study in other country and for that also, the property was required to be shown in the name of defendant with a view to show the financially sound condition and as per the request of defendant, gift deed was reverted in the name of plaintiff. Thus, in such a situation of sorrow and necessity, and in feeling of love and faith, no one can say real sister to revert back the transaction. The relation between plaintiff and defendant were cordial and plaintiff was in faith over his defendant sister and therefore, there was no hurry on the part of plaintiff to revert the cancellation of gift deed.

3.5 However, the plaintiff received a legal notice dated 28.09.2021 issued by defendant with regard to vacating the possession of the suit plot. At that point of time, p