1 SA 511.2010 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.511 OF 2010 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders Mrs.A.N.Ansari, Advocate for the appellant. Miss. Vaishnav, Advocate holding for Mr.Amol Gandhi,Advocate for Res.No. 3. .......................... CORAM : S.V. GANGAPURWALA, J. DATE : 02/05/2011 PER COURT : 1. This is an Appeal by the original plaintiff. The plaintiff had filed Suit for declaration of ownership and possession. The trial Court dismissed the Suit. The plaintiff preferred Appeal. The appellate Court also dismissed the Appeal confirming the Judgment and decree passed by the trial Court. Aggrieved thereby, the plaintiff has filed the present Appeal. 2. Mrs. A.N.Ansari, the learned counsel for the appellant contends that once the suit property is 2 SA 511.2010 given by the defendant no. 1 to the plaintiff in lieu of ‘ Mehr ’, the defendant no. 1 did not have any right, title or interest to deal with the property and the plaintiff will be the absolute owner of the said property. As such, the sale deed executed by defendant no. 1 in favour of defendant nos. 2 and 3 in the year 1970 and 1980 respectively are null and void and not binding upon the plaintiff. The plaintiff had filed the Suit after getting knowledge of the said transaction. As such, the period of limitation would not start till the knowledge to the plaintiff. According to the learned counsel, the Courts below have mis-lead themselves due to verbal jugglery about the ‘ gift ’ and ‘ Mehr ’. It was in fact given by way of ‘ Mehr ’. Gift was only an abjective which was put, but when once the property was given as ‘ Mehr ’, the plaintiff would become the absolute owner of the said property. 3. Per contra Miss. Vaishnav, the learned counsel holding for Mr. Amol Gandhi, the learned counsel for respondent no. 3 submits that the sale deed is executed by defendant no. 1 in favour of defendant no. 2 in the year 1970 and in favour of defendant no. 3 in the year 1980 and the Suit is filed in the year 1995 i.e. after a long slumber of 25 years after the execution of the first sale deed. 3 SA 511.2010 Even otherwise the defendant nos. 2 and 3 would be protected by virtue of Section 41 of the Transfer of Property Act. More over, no details of ‘ Mehr ’ has been given by the plaintiff. 4. With the assistance of the learned counsel for the respective parties, I have gone through the Judgments. 5. In fact, the plaintiff could not elect her case. ‘ Gift ’ and ‘ Mehr ’ are two ( 2 ) different and distinct concepts. The plaintiff pleaded and led evidence to show that the said property was given as a ‘ gift ’ by way of ‘ Mehr ’. The ingredients of ‘ gift ’ are distinct as that of ‘ Mehr ’. The Courts have discussed as to whether the property was given by way of ‘ prompt dower ’ or a ‘ deferred dower ’, has not been proved. If the plaintiff contends that the said property was given as a ‘ gift ’, then delivery of possession of the property is ‘ sine qua non ’. It is nowhere seen that the plaintiff is in actual physical possession of the suit property. More over, in view of absence of the details of the ‘ Mehr ’, the said stand of the plaintiff also could not be substantiated. Apart from all these facts, the Suit is filed after a long slumber of 25 years. 4 SA 511.2010 6. The Courts below on appreciation of evidence have come to the possible and plausible conclusion. In such circumstances, the Second Appeal being sans substantial question of law is dismissed, however with no order as to costs. [ S.V. GANGAPURWALA,J. ] KNP/SA 511.2010