IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.238 of 2002 BASUDEO LOHAR Versus RAM DULARI DEVI & ORS ----------- 16/ 30.07.2008 Heard learned counsel for the appellant This second appeal arises out of Title Suit No. 104/ 1979 (41/1987) filed by plaintiff-respondent-respondent first set for declaration of deed of gift dated 01.11.1974 said to have been executed by the plaintiff in the name of principal defendants no.1 to 5 with respect to the suit property, detailed in Schedules I and II of the plaint, was bogus, fraudulent and inoperative and not binding upon the plaintiff and was fit to be cancelled and also for injunction and other ancillary reliefs. The said title suit was dismissed by learned Additional Munsif-I, Aurangabad by judgment and decree dated 03.02.1989, against which defendant no.1-appellant-appellant filed Title Appeal No. 18/1989(45/2000) which was dismissed by learned Additional District Judge-I, Aurangabad by his judgment and decree dated 29.06.2002. Against the aforesaid judgment and decree of the learned court below, defendant no.1-appellant-appellant has filed the instant second appeal. After considering the averments made by learned counsel for the appellant and the materials on record including the impugned judgments and decree of the learned courts below, it is quite apparent that both the learned courts below have concurrently found that the plaintiff has been able to prove that the principal defendants got executed deed of gift dated 11.01.1974 with respect to the suit property by playing fraud upon Gopal Mistry because as per agreement, Rehan deed was to be executed. It was - 2 - also proved that Gopal Mistry had disclosed that Rehan deed was to be executed and when there was propaganda in the village about execution of the deed of gift in April, 1979 Gopal Mistry came to know that fraud had been committed and instead of deed of Rehan, deed of gift had been executed. The learned courts below have also found that admittedly Gopal Mistry was illiterate and hence it was incumbent upon principal defendants no.1 to 5 to prove the fact that the deed of gift had been voluntarily executed by Gopal Mistry and contents of the deed were read over and explained to him, whereafter he put his left thumb impression, but they miserably failed to prove the same. It was also found that only one of the said five donees, namely Principal defendants (defendant no.1) contested the suit, whereas, remaining four donees of principal defendants did not come to controvert the claim of the plaintiff Gopal Mistry. So far as the question of limitation is concerned, the learned courts below have concurrently found that the plaintiff came to know about the said deed of gift only in April, 1979 and hence the suit filed in the year 1979 itself was not barred by law of limitation. In the aforesaid facts and circumstances, the judgments and decree of the learned courts below are covered by concurrent findings of facts and this Court does not find any illegality in the impugned judgments and decree nor does it find any substantial question of law involved in this second appeal, which is, accordingly, dismissed. MPS/ ( S. N. Hussain, J. )