Jharkhand High Court
Ramashish Rai vs Om Prakash Kumar on 22 March, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Second Appeal No. 237 of 2013
Ramashish Rai .... .... Appellant
Versus
Om Prakash Kumar .... .... Respondent
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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
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For the Appellant : Mr. Niranjan Kumar, Advocate
For the Respondent : Mr. Mahesh Tiwari, Advocate
Oral Order
12 / Dated : 22.03.2022
1. The appellant is the defendant who had preferred the instant
appeal against the judgment and decree passed by the District Judge-II,
Deoghar in Title Appeal No. 5 of 2005 affirming the judgment and decree
passed in Title (Eviction) Suit No. 06 of 2001.
2. The plaintiff filed the suit for declaration of title with respect to
the schedule property fully detailed in the plaint and for permanent
injunction against the defendant.
3. The case of the plaintiff in brief is that he is absolute owner of
Holding No. 134, Ward No. 8 of Madhupur Municipality which was
transferred by registered deed of gift by his father in his favour on
3.11.1993 and after execution of the deed of gift the plaintiff became full
owner and got his name mutated in the record of Circle Office, Madhupur
and paid rents, taxes etc. with respect to the suit land. Earlier his father in
the year 1990 had let out a portion of the said land to the defendant for
monthly rent of Rs.200 and the said tenancy was continued upto 1992.
Thereafter the defendant had handed over the possession to the father of
the plaintiff. After a few years, the defendant returned back to Madhupur
and was in search of residential accommodation and on his request he was
allowed to stay in the portion of the said building as a licensee. The
possession of the defendant was purely permissible in nature and as he
was in now requirement of the portion of the house, permission has been
revoked but the defendant refused to vacate the suit premises. Hence this
suit.
4. Case of the defendant appellant is that the suit property is in the
name of Tarkeshwar Kunwar but it is false averment of the plaintiff that
the suit property was transferred by the deceased Tarkeshwar Kunwar by
way of gift and gift if any, was vitiated by fraud and without knowledge
of the father of the defendant. The defendant is the owner of the disputed
property and the mutation has also been done fraudulently. The
defendant is the owner of the entire suit property having inherited gift
from his father Tarkeshwar Kunwar as he was born from the wedlock of
second wife Sumitra Devi and from the first wife two sons and daughter
namely, Ramadhar, Jitendra Kumar and Dr. Shila Devi were born and the
plaintiff is not the heir of Tarkeshwar Kunwar.
5. On the basis of the pleadings of the parties, following main
issues were framed:
Issue No. 3 - Whether the suit premises was given in gift by
Tarkeshwar Kunwar to plaintiff Om Prakash Kunwar?
Issue No. 4 - Whether the deed of gift has been executed by fraud and
therefore whether it has become null and void?
Issue No. 5 - Whether the defendant is living in the premises as son of
Tarkeshwar Kunwar or as to whether the defendant is the licensee in
the suit premises?
Issue No. 6 - Whether the plaintiff is the owner of the suit premises?
6. Learned trial court recorded the finding of facts that the suit
premises was given in gift by Tarkeshwar Kunwar to plaintiff Om Prakash
Kumar. The suit property was self-acquired property of Tarkeshwar
Kunwar which he had purchased from Kanhaiya Lal Banerjee vide
registered sale deed (Ext.3) on 19.8.1966. The entire suit property was
given by registered sale deed by free will and the gift deed was not
vitiated by fraud. The defendant appellant Ramashish Rai was living in
the house as licensee. On these finding the suit was decreed in favour of
the plaintiff.
7. The appellate Court dismissed the appeal and concurred with
the finding of facts recorded by the trial Court.
8. The plaintiff's claim of title over the suit property is on the
basis of registered deed of gift which was duly executed in his favour. The
suit property is admittedly the self-acquired property of the transferor. The
challenge to it is based on fraud, but the defendant's pleading is bereft of
necessary particulars on the plea of fraud as required under Order 6 Rule
4 and no evidence has been led to cast cloud over the title of the plaintiff.
Due execution of the registered deed of gift is a question of fact which has
been answered in favour of the plaintiff by both the learned Courts below.
It has been held in 2009 (5) SCC 713 Vimal Chand Ghevar Chand
Jain Vrs. Raman Kanth Eknath Jadoo that there is presumption of
genuineness in favour of registered document and heavy burden lies on
the party who assails such a document.
Abdul Rahim v. Sk. Abdul Zabar, (2009) 6 SCC 160 Indisputably,
the deed of gift is a registered one. It contains a clear and unambiguous
declaration of total divestment of property. A registered document
carries with it a presumption that it was validly executed. It is for the
party questioning the genuineness of the transaction to show that in law
the transaction was not valid.
In the instant appeal I find that the appellant has failed to raise
any substantial question of law for hearing.
Under the circumstance, this appeal is dismissed at the
admission stage itself.
(Gautam Kumar Choudhary, J.)
AKT
