IN THE HIGH COURT OF JUDICATURE AT PATNA S.A. No.226 of 2008 ---- Shesh Nath Mishra, son of Late Makhan Mishra, resident of Village-Ratna Mala Tola, Mathia, P.S. Majhauliya, District-West Champaran. -- Plaintiff-appellant-appellant. Versus Shrimati Mantu Devi D/o Sheshnath Mishra wife of Shri Kalika Mishra, resident of village-Suar Chhap, P.S. Lauriya, District-West Champaran. -- Defendant-Respondent-Respondent. ----- For the appellant : Mr. Dhannjay Kumar No.2, Advocate. For the respondent : None. ---- 05. 07.09.2009 Heard learned counsel for the appellant. 2. This second appeal has been filed by the plaintiff- appellant-appellant challenging the judgment and decree of both the learned courts below. 3. The matter arises out of Title Suit No.268 of 2000 which was filed by the plaintiff-appellant for declaration of his title and confirmation of possession and also for declaration that the registered deed of gift executed by him in favour of his daughter (defendant) was farzi, illegal null and void and for other ancillary reliefs. 4. The said suit was dismissed by the learned Munsif Bettiah, vide judgment and decree dated 30.06.2005, whereafter the plaintiff-appellant filed Title Appeal No.12 of 2005 which was dismissed by the learned Additional District Judge-cum- Fast Track Court-3, West Champaran vide its judgment and decree dated 24.04.2008. The plaintiff-appellant has challenged the said judgments and decree of the learned courts below in the instant - 2 - second appeal. 5. Both the learned courts below have considered the validity of the deed of gift dated 12.12.1998 in detail and had come to conclusion that the plaintiff has admitted in his pleading and his evidence that it was executed by him and hence in the said circumstances if he wanted to challenge the said deed, he should have claimed either misrepresentation or undue influence or any forgery, but no such claim has been raised by the plaintiff in his plaint. The learned courts below have also found in paragraphs 12 and 13 of his deposition that the plaintiff had himself admitted that his daughter had not put any pressure on him to execute the deed, rather he executed the will as per his own free will only to save himself from his nephew Keshav Mishra. It was also stated in the said deposition that the original deed was with the donee, namely the defendant and that he had not filed any case for theft of the said deed. He also admitted that the defendant was living with him and was serving. 6. These findings are apparent from the record and could not be denied by the appellants and hence the learned courts below rightly came to the conclusion that the pleadings and evidence of the plaintiff itself disproved his claim against the said decree. 7. Learned counsel for the appellant has laid much stress on the finding of the learned courts below that advalorem court fee had not been deposited by the plaintiff although he was challenging the deed of gift, but the plaintiff had already deposited - 3 - the court fee. It is quite apparent from the impugned judgments and decree of the learned courts below that the suit and the appeal were not dismissed on the said technical issue, rather it was also dismissed on merits after perusing the respective pleadings and evidence of the parties. 8. In the said circumstances, this court does not find any illegality in the impugned judgments and decree of the learned courts below, nor does it find any substantial question of law involved in the instant second appeal which is, accordingly, dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. Sunil (S. N. Hussain, J.)