IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 179 of 2000. Date of decision: 3.5.2010. Om Parkash ….. Appellant. Vs. Kashmir Singh …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. Rakesh Jaswal, Advocate with Mr. Raman Sethi, Advocate For the Respondents : Mr. Virender Rathore, Advocate. Kuldip Singh, Judge (Oral). This appeal has been directed against the judgement, decree dated 1.10.1999 passed by learned Addl. District Judge (1), Kangra at Dharamshala in Civil Appeal No. 67-G/98 affirming the judgement and decree dated 20.5.1998 passed by learned Sub Judge Ist Class Dehra in Civil Suit No. 155 of 1993. 2. The facts in brief are that Kishni Devi filed a suit for declaration that she is owner in possession of land measuring 0-23-55 hectares being half share in khata No. 101, khatauni No. 294, khasra Nos. 673, 674, 687 and 732 measuring 0-47-10 hectares, Mohal Jandaur Mauza Kotla Tehsil Jaswan, District Kangra and gift- deed dated 1.6.1992 is the result of fraud, misrepresentation, undue influence and it did not affect her right, title over the suit land, with consequential relief of permanent injunction restraining the appellant- Whether the reporters of the local papers may be allowed to see the Judgment? …2… defendant from interfering in the suit land. In the alternative, possession has also been prayed. 3. The suit has been contested by the appellant on the grounds of locus-standi, maintainability and valuation. It is the case of the appellant that he provided necessities of life to donor Kishni Devi, who started living in the house constructed by the appellant. He has submitted that gift-deed dated 1.6.1992 was executed by Kishni Devi voluntarily in presence of witnesses. The further case of the appellant is that he is in possession of the suit property. 4. Kishni Devi filed replication and controverted the case set up by the appellant and reasserted her case. On the pleadings of the parties, the following issues were framed:- 1. Whether the gift-deed dated 1.6.1992 is a result of fraud, mis-representation and undue-influence as alleged? OPP. 2. Whether the plaintiff is owner in possession of the suit land as alleged? OPP. 3. Whether the plaintiff has no locus-standi to sue? OPD. 4. Whether the suit is not maintainable? OPD. 5. Whether the suit is false and frivolous and deserves dismissal with special costs? OPD. 6. Whether the suit is not properly valued? OPD. 7. Relief. 5. The issues No. 1, 2 were answered in affirmative, whereas issues No. 3 to 6 were answered in negative and the suit was decreed on 20.5.1998. The gift-deed dated 1.6.1992 was declared to be result of fraud and did not affect the right, title of the plaintiff, who was held to be owner in possession of half share of the …3… suit land comprised in khata No. 101, khatauni No. 294, khasra Nos. 673, 674, 687 and 732 measuring 0-47-10 hectares. The appellant filed an appeal against the judgement, decree dated 20.5.1998, which was dismissed by learned Addl. District Judge, Kangra. In these circumstances, the appellant has filed second appeal, which has been admitted on the following substantial question of law:- Whether the courts below have mis-read and mis- appreciated the oral and documentary evidence on record to come to the conclusion that the impugned gift deed is null and void being the outcome of fraud, mis- representation and undue influence? 6. I have heard Mr. Rakesh Jaswal, learned counsel for the appellant and Mr. Varinder Rathore, learned counsel for the respondent and have also gone through the record. It has been submitted by the learned counsel for the appellant that two courts below have misread and misinterpreted the oral and documentary evidence on record and have erred in returning the findings that gift deed Ex. DW 2/A is null and void and is the outcome of fraud, mis- representation and undue influence. The learned counsel for the respondent has supported the impugned judgement, decree. 7. The statement of Kishni Devi was recorded on 30.6.1994 and on that date she had given her age 85 years. She has stated that she is totally illiterate, blind. She has simpleton son who speaks very little. Her husband has died one and half years ago. The appellant is rajput, whereas she belongs to barbar community. Om Parkash approached her and told her that she would die, therefore, …4… make a gift in favour of her son. He took her to Kotla and obtained her thumb marks on some papers and told her that her property has been transferred in the name of her son Kashmira. The document was not read over to her. Nobody from her village had accompanied her to Kotla. She was not produced before the Tehsildar. She does not know Satpal or Kewal Singh. Om Parkash gave beatings to Kashmira and also to her. She had not gifted the land to Om Parkash. She was cross-examined at length, but in the cross- examination nothing favourable to the appellant was extracted. 8. DW 2 Gurbachan Singh has stated that his residence is in village Gulaldhar, Mouza Kotla. He has stated that on the instructions of Kishni, he had scribed Ex. DW 2/A and thereafter Kishni Devi after understanding its contents had put her thumb mark on the document. The witnesses were Satpal, Kewal Singh and Bidhi Chand president. Satpal and Kewal Singh had signed as witnesses. He has not stated that Ex. DW 2/A was read over in presence of Satpal and Kewal Singh and in their presence Kishni accepted the correctness of gift deed Ex. DW 2/A. DW 3 Satpal has stated that Kishni had executed gift-deed Ex. DW 2/A in favour of Om Parkash. This was written by Gurbachan. He has not stated that gift-deed was read over to Kishni by Gurbachan and after understanding its contents she had put her thumb mark on Ex. DW 2/A and thereafter the witnesses signed the gift deed. 9. It has come on record that Kishni was about 80 years of age at the time when Ex. DW 2/A was prepared. She was blind. There is no reason to disbelieve her statement that she was taken to …5… Kotla by the appellant on the pretext of preparing gift deed in favour of her son Kashmira but instead appellant obtained her thumb marks on some papers. The execution of gift deed Ex. DW 2/A has not been proved by the scribe Gurcharan Singh and witness Satpal. Kishni was very old and blind, in these circumstances, there was heavy burden on the appellant to prove that she executed the gift deed in his favour voluntarily. The two courts below have rightly appreciated the material on record in returning the findings that Kishni Devi had not executed gift deed Ex. DW 2/A voluntarily, rather it is the outcome of fraud and mis-representation of appellant. The learned counsel for the appellant has failed to point out what particular evidence has been mis-appreciated and misinterpreted by the two courts below. No perversity in the impugned judgement and decree has been pointed out. The substantial question of law referred above is decided against the appellant. There is no merit in the appeal. 10. No other point was urged. 11. The result of above discussion, the appeal fails and is accordingly dismissed with no order as to costs. May 3, 2010. ( Kuldip Singh ) (Hem) Judge.