IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 28 of 2002 Date of decision : 26.7.2011. Bakhtawar Singh and others …Appellants. Versus Jagdish and another …Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1 Yes. For the Appellants: Mr. N.K.Thakur, Advocate. For the respondents: Mr. Subhash Sharma, Advocate. Deepak Gupta, J.(Oral) 1. This appeal by the defendants is directed against the judgement and decree dated 22.12.2001 passed by the learned District Judge, Una whereby he dismissed the appeal of the defendants and affirmed the judgement and decree dated 15.9.1997 passed by the learned Sub Judge 1st Class, Court No.2, Una decreeing the suit of the plaintiffs. 2. Briefly stated the facts of the case are that the plaintiffs filed a simpliciter suit for injunction claiming that they have become owners of the suit 1 Whether the reporters of the local papers may be allowed to see the Judgment? yes. 2 land under Section 104 of the H.P.Tenancy and Land Reforms Act and that the defendants have no right, title or interest over the same. The defendants contested the suit only qua one of the khasra numbers out of the entire suit land. There case was that khasra No. 620 (old) which corresponding to Khasra No.1936 (new) was in possession of defendant No.1 Bakhtawar Singh since he after retirement from the army had applied for resumption of the land and thereafter the Land Reforms Officer vide order dated 23.1.1992 had allowed the resumption of land including Khasra No. 620 in favour of Bakhtawar Singh, which order was again reaffirmed after remand on 29.8.1992 Ext.D- 6. The order of the Collector was affirmed by the Divisional Commissioner vide order dated 9.6.1994. In replication the stand of the plaintiffs was that Sukhan Devi had wrongly and illegally executed a gift deed in favour of Bakhtawar Singh and his brothers in the year 1972 to get the benefit of the army service of Bakhtawar Singh. However, in the suit no prayer was made that the gift deed was bad in law. In fact, no prayer was made that the entries 3 showing Bakhtawar Singh to be owner on the basis of the gift are not correct. 3. Both the Courts below held that since, admittedly, the plaintiffs were in possession of the suit land at the time when gift deed was executed the possession thereof was not delivered in favour of the donees and therefore, the gift had not been completed. This appeal by the defendants has been filed against the concurrent findings of both the Courts below on this aspect of the matter and was admitted on the following questions of law:- 1. Whether the order passed by the Land Reforms Officer in resumption proceedings under Section 104 of the H.P.Tenancy and Land Reforms Act can be set-aside by the Civil Court in view of the bar of the jurisdiction as envisaged under Section 112 of the H.P.Tenancy and Land Reforms Act? 2. Whether the impugned judgement are vitiated on account of misinterpretation and misconstruction of the documentary evidence more particularly Exts. D-4, D-5 and D-6? 4. In my opinion, another important question of law which arises is as follows:- 3. Whether the finding of the Courts below that actual possession of property should have been delivered for the gift to be completed is the 4 requirement of Sections 122 and 123 of the Transfer of Property Act, 1963? 5. There can be no dispute with the findings of both the Courts below that actual possession was not delivered to the donee since admittedly the plaintiffs were in possession of the land as tenants at the relevant time. Section 122 of the Transfer of Property Act reads as follows:- “Gift defined. – Gift is the transfer of certain existing movable or immovable property made voluntarily and without consideration by one person called the donor, to another, called the donee, and accepted by or on behalf of the donee. Acceptance when to be made – Such acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void.” 6. One of the essentials of the gift is that the same must be accepted during the life time of the donor while he still capable of giving. Therefore, acceptance of the gift by the donee in the lift time of the donor and at a period when the donor is in full senses is the sine qua non of a gift. Section 123 lays down that a gift of immovable property can only be effected through a registered 5 instrument singed by or on behalf of the donor and witnessed by at least two witnesses. In case of movable property the gift can be made either by a registered instrument duly signed or by delivery of the goods. In a number of cases the question has arisen as to how the donee has accepted the gift of immovable property. One of the means of accepting the gift is to take delivery of the immovable property. This by itself clearly indicates that the donee has accepted the gift. 7. There can, however, be circumstances where the gift is accepted by other means. Delivery of possession is not the only way of showing acceptance of a gift. In the present case, the gifted property was in possession of the tenants. Therefore, obviously delivery of possession could not be accepted by the donee. However, by moving the revenue authority and getting the revenue entries changed in their favour the donees clearly indicated that they had accepted the gift. To give another example, supposing the gifted property is a tenanted property. If the donee accepts rent from the tenant that is another way of 6 showing that he has accepted the gift. It cannot be laid down as a universal proposition of law that in case of a gift of immovable property the same must always be accompanied by delivery of possession. It is not the delivery which is the necessary ingredient of the completion of the gift but the acceptance of the gift, which is the most important ingredient for the gift to be completed. 8. Reliance placed by the Courts below on the judgement in Man Singh and others vs. Lehnu and others, 1979 Simla Law Journal 150, is totally misplaced. Both the Courts below have held that this judgement has been delivered by the H.P.High Court. This clearly indicates that both the learned Officers had not even cared to read the judgement because before the judgement has been printed there is a note in block letters clearly stating that the judgement was passed by Punjab & Haryana High Court in a case relating to property in Himachal Pradesh. Even the observations relating to delivery of possession were not made in a universal context but were made in the specific facts of the case. That was a case filed by the 7 donor himself where he claimed that he had cancelled the gift. Therefore, in that context delivery of possession was a very important factor. 9. Be that as it may, for the reasons stated above I am of the considered view that delivery of possession is only one of the means but not the sole mean of accepting the gift. This answers the third question now framed. 10. Coming to question No.2, there are certain documents which the learned courts below have totally ignored. Ext.D-3, D-5 and D-6 are the documents which clearly evidence the factum of the resumption application of Bakhtawar Singh being allowed and Khasra No. 620 being given to him in resumption proceedings. Ext.P-9 is the judgement delivered in a case filed by the present plaintiffs themselves. In that case the present defendants were again arrayed as defendants and the plaintiffs had filed a suit for declaration to the effect that they are in possession of the suit land including Khasra No. 620 as tenants and therefore prayed that the defendants be restrained from interfering in the same. The defendants claimed to be owners 8 in possession of the suit land. The suit of the plaintiffs was decreed and while decreeing the suit the finding given by the learned trial Court was as below:- “admittedly, defendants No.1 to 4 are owners of the land.” 11. Thus ownership of defendants including Bakhtawar Singh was not denied in the earlier suit and the plaintiffs claimed themselves to be in possession as non-occupancy tenants. The Court held that the plaintiffs were in occupation as tenants. Since defendants 1 to 4 including Bakhtawar Singh were held to be owners obviously the plaintiffs were tenants under the said owners. Having once taken the stand in the earlier suit which was decided in the year 1978 the plaintiffs now could not turn around and argue that the defendants were not the owners of the land and once the defendants were owners of the land they had full right to seek resumption if otherwise permitted under law. This answers question No.2. 12. In view of the answers to questions No. 2 and 3 above, question No.1 has to be answered in favour of the appellants-defendants because once 9 the ownership is of the defendants and any order of resumption is passed in their favour that order can only be challenged in accordance with the provisions of the H.P.Tenancy and Land Reforms Act and not in any civil suit. Reference in this behalf may be made to Chuhniya Devi vs. Jindu Ram 1991(1) Sim.L.C.223. 13. In view of the above discussion, the appeal is allowed, the judgements and decree of both the Courts below are set-aside and the suit of the plaintiffs is dismissed. No order as to costs. 26th July, 2011 ( Deepak Gupta ) ™ Judge.