1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR SECOND APPEAL NO. 238 OF 2009. Balkrushna Ramrao Chitte (Chikte) Vs. Shantabai Namdeo Hatekar ------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's Orders directions and Registrar's orders. ------------------------------------------------------------------------------------- Shri A. V. Bhide Adv for appellant. CORAM: C. L. PANGARKAR J. DATED: 7 th AUGUST, 2009. This Second Appeal is preferred against the two concurrent findings of the facts recorded by the Courts below. Plaintiff who is appellant had instituted a suit for declaration, injunction and possession of the suit property i. e. two acres of land out of Gat. No. 480. It is the contention of the present appellant in the suit that one Gayabai Narayan was 2 the owner of Gat No. 480 which admeasured 4 acres. Gayabai had executed a gift deed in favour of respondent-defendant Shantabai in the year 1969. It is further his contention that Gayabai had cancelled the said gift deed and was in possession of the entire 4 acres of land. Further it is his contention that Gayabai executed a will in his favour and has bequeathed the entire 4 acres of land to him. Further the plaintiff appellant contended that defendant has wrongly dispossessed him in execution of the decree and he should be put in possession thereof. 2. Defendant respondent Shantabai contended that Gayabai had executed a gift deed in her favour which is a registered document and in pursuance thereof she was put in possession of the plot i.e. two acres of land out of Gat No. 480. Defendant further alleged that Gayabai dispossessed her after the gift deed was executed and she therefore filed a Civil Suit in the year 1972 claiming possession of the property and declaration also. Further it is her 3 contention that suit was decreed. Appeal preferred by Gayabai abated as her heirs were not brought on record and the decree therefore attained finality. It is her contention that said decree in fact operates as res judicata that she is in possession under the gift deed and she can not be dispossessed. 3. The learned Judge of the trial Court found that the judgment and decree passed in Civil Suit No. 49 of 1972 operates as resjudicata against the plaintiff. He found that plaintiff was not in possession of the suit property and plaintiff was not entitled to any declaration and possession. The learned Judge of the appellate Court concurred with the findings recorded by the trial Court and dismissed the appeal. 4. I have heard the learned counsel for the appellant. It is not in dispute in fact that Gayabai had executed a registered gift deed in favour of Shantabai, the defendant in the year 1969. It is also not in dispute that decree was obtained in Civil Suit No. 49 4 of 1972 by defendant Shantabai against Gayabai wherein she sought possession of the property under the gift deed. The said suit was decreed and decree has assumed finality. Present appellant is claiming through Gayabai. Since he claims through Gayabai finding recorded against Gayabai in the suit certainly operates as resjudicata against the present plaintiff appellant. Finding of the trial Court as well as first appellate Court cannot be faulted on this count. Learned counsel for the appellant could not show me any perversity in the appreciation of this fact. 5. Record further clearly goes to show that in the year 1991 Shantabai had obtained possession in pursuance of the decree passed in Civil Suit No. 49 of 1972 since the suit was decreed and decree had assumed finality, her obtaining possession in the said decree cannot be said to be illegal and her remaining in possession cannot be said to be illegal. Courts below have rightly found that once a gift deed was executed, it could not be cancelled and particularly 5 when a decree has been passed on the basis of the said gift deed. I, therefore, do not find that Courts below have committed any error in appreciation of the evidence or facts. In fact there is no substantial question of law involved in the appeal. It is dismissed in limine. JUDGE svk 6