IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.12 of 2010 Ram Parikha Singh Versus Smt. Lacchhaminia Devi & Ors. ---------------------------------- 6 7-12-2011 Heard Mr. S. K. Tiwary, learned counsel appearing on behalf of the appellant. The plaintiff is the appellant in this appeal against the judgment of affirmance dismissing the suit. The original plaintiff, namely, Punit Singh, filed the suit praying for declaration that the gift deed dated 22-2-1993 executed by him in favour of defendant no.1 is illegal, void, fraudulent and inoperative document and not binding upon the plaintiff. The original plaintiff, Punit Singh, died during the pendency of the suit and had been substituted by the present appellant. The gift deed, as aforesaid, has been challenged on the ground of fraud played by the defendants upon the plaintiff in obtaining the gift deed. The defendants have denied the allegation of fraud and have asserted that the original plaintiff had voluntarily and willingly executed the gift deed in favour of defendant no.1 and claimed the said document to be legally valid. The trial court has considered the evidence of the parties in the light of their pleadings and has come to the finding that the fraud in execution of gift deed could not be established by the plaintiff. The appellant court has also concurred with the said finding and has further held that the case of oral gift, as claimed by the substituted plaintiff, also could not be established. The learned counsel appearing on behalf of the appellant has submitted that both the courts below have 2 misappreciated the evidence on record and the findings against the plaintiff regarding the validity of the gift deed are vitiated due to non-consideration of evidence as well as the established principles of law. It has been urged that the gift deed in question also includes some plots which do not belong to the donor(original plaintiff), which fact itself shows that the gift deed is not a valid document. It has also been submitted that the two independent witnesses as required under section 122 of the Transfer of Property Act are not there in the gift deed in question and there is also no proof that the gift deed has been executed by the donee. The learned counsel has further contended that the burden of proof was clearly upon the defendants to establish the legality and validity of the gift deed once the donor himself has denied the execution of the gift deed and challenged the same. After considering the submission of the learned counsel for the appellant and perusing the impugned judgment , it appears that the original plaintiff has assailed the gift deed on the ground of fraud played upon him by the defendants and has further denied that he has voluntarily and out of own free-will executed the document. However, both the courts below on the basis of the evidence on record have concurrently found that fraud, as alleged, could not be established on behalf of the plaintiff. The said finding has been recorded on the basis of the evidence led by both the parties in support of their rival contentions. Moreover, the appellate court has also considered the contention that some of the plots in the gift deed did not belong to 3 the original plaintiff and has come to the finding that this fact also could not be established. The witnesses, who have appeared on the gift deed, have been also examined in the suit and they have accepted the valid execution of the gift deed by the original plaintiff in favour of defendant no.1 and acceptance by defendant no.1 is also established. As such, the issues arising between the parties in the suit have now been concluded by the concurrent findings of fact. There is no substantial question of law arising for consideration in this appeal. This appeal is, accordingly, dismissed. roy ( V. Nath, J.)