1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR. SECOND APPEAL NO.423 OF 2008. Jagdish Shantaram Navghare and ors. .vs. Sau.Kamal Shankarrao Khudsange and ors. -------------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's Orders directions and Registrar's orders. Coram: C. L. PANGARKAR,J. Dated : 4th December, 2008. 1. Heard Shri Joharapurkar, Advocate for the appellants and Shri K.R.Lule, Advocate for the respondents. 2. This second appeal has been preferred by the heirs of the defendant. The respondent/ plaintiff had instituted a suit for declaration and injunction. They claimed that Survey No.39/1 of mouza Bothali was gifted to plaintiff no.1 by 2 deceased defendant Ramaji by registered sale deed dated 4/7/1996. It was the contention of the plaintiff that it was out of love and affection for plaintiff no.1 that Ramaji executed a gift in her favour and plaintiffs were cultivating the field since then. It is contended that Ramaji thereafter tried to disturb the possession of the plaintiff and hence the suit. 3. Original defendant Ramaji contested the suit and contended mainly that his signature on the sale deed was obtained by fraud and he never voluntarily wanted to gift the suit property to plaintiff no.1. He contended that he had undergone an eye operation and under the pretext that signature was required in respect of the eye operation, his signature on certain papers were obtained while he was taken to the doctor. The defendant also filed the counter claim praying that the gift-deed be declared as void. 4. The learned judge of the trial court recorded the evidence and found that the plaintiff 3 had failed to prove the title to the suit property and gift-deed executed by Ramaji is void. Holding so, he dismissed the suit and decreed the counter claim. Being aggrieved by that, original plaintiff preferred an appeal before the District Judge. The appeal has been allowed by the learned District Judge holding that there was no proof that the sale- deed was executed by playing fraud on Ramaji and lower court has not properly appreciated the evidence. 5. Being aggrieved by that, this second appeal has been preferred by the heir of original defendant, as original defendant died during the pendency of the appeal. 6. Shri Joharapurkar, learned counsel for the appellants, submits before me that the second appeal can always be admitted by the court where court finds that there has been perversity in appreciating the evidence. The learned counsel submits that although there is no question of law as such involved, the perversity in the appreciation of 4 the evidence itself is substantial question of law on which the appeal can be admitted. There cannot be any dispute on the proposition that the second appeal can be admitted by the court where it is prim facie shown that the appreciation of the evidence by the first appellate court was perverse. 7. There is no doubt that there are no concurrent findings as such against the present appellant but then the court is certainly required to look into the aspect as to whether the appreciation of the evidence by the first appellate court was perverse or not. Shri Joharapurkar submits that there is discrepancy in the evidence of the attesting witness. He submits that the evidence of attesting witness as such cannot be accepted in proof of the gift. It may be mentioned here that as far as proof of the gift is concerned, there is no much debate on it. The executant of the gift deed himself was examined in the court. There is no doubt that for proving of the gift deed at least one attesting witness must be examined, but in the instant case, one has to bear in mind that the executant himself 5 was alive and examined in the court. The attesting witness' evidence has, therefore, to be considered in the context of the evidence given by the executant himself. My attention was invited to certain statements made by the attesting witness in examination in-chief and in the cross-examination. In the examination in-chief the attesting witness has no doubt stated that Ramaji i.e. the defendant himself had given instructions to the Petition Writer to draft the gift deed and then he typed it and it was readover to Ramaji. In the cross- examination, however, he says that when he went to the petition writer, the gift deed was duly typed and was ready. He has also stated that another attesting witness Devra was already present in the court, while in examination in chief he says that he had gone along with Ramaji to the petition writer. There may be such discrepancy in the evidence but that does not go to show that any fraud was played on Ramaji. In that context, evidence of Ramaji is to be looked into. Ramaji has positively admitted in the cross-examination that since after the death of his wife, the present plaintiffs/respondents were 6 taking care of him. Plaintiff no.1 was providing food etc. to him and therefore, he was treating plaintiff no.1 as his daughter. This is precisely the case of the plaintiff in the evidence. It is because Ramaji had developed love and affection that he decided to execute the gift-deed. However, in the cross-examination witness Ramaji admits that he had gone to the court along with plaintiff no.2 Shankarrao and he further admits in the cross- examination that he signed the documents after it was written. Now, this statement goes contrary to his own pleadings in as much as he has contended that he did not know where he was taken and his signatures were taken there. The fact that, in evidence he says that he was taken to the court and signatures were obtained, clearly indicates that he was knowing where he was taken and what he has signed. Further in the cross-examination it is elicited that when the document was executed, he was using the same spectacle which he was using on the day he was deposing. Obviously, therefore, it could not be said that Ramaji's eye sight was weak and he was unable to see the things clear. It 7 may be mentioned that after this document was executed, defendant Ramaji did not take any action against the plaintiff nor did he care to file any suit against the plaintiff even after the proceedings for mutation of the name of the plaintiff was taken up by the revenue court. The counter claim was filed only after the plaintiff instituted the suit. Further, another avarements made by the defendant in the written statement has to be taken note of. In that written statement the defendant has contended that he intends to revoke the gift-deed executed in favour of the plaintiff. This itself suggests that the defendant is very much aware that he had executed the gift-deed and that too voluntarily, else there was no reason to make the statement that he intends to revoke the gift deed. In view of this, I find that there is no perversity in the appreciation of the evidence. The evidence is rightly considered by the learned judge of the first appellate court. The points that were raised were in respect of questions of fact and since the questions of fact have been rightly decided by the lower court by appreciating the evidence, I find 8 no substance in the appeal. It is, therefore, dismissed. JUDGE. chute