Uttarakhand High Court
Nitin Sharma vs Vipin Sharma And Another on 11 October, 2023
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Second Appeal No.116 of 2023
Nitin Sharma ....Appellant
Versus
Vipin Sharma and Another .... Respondents
Present:
Mr. Neeraj Garg, counsel for the appellant.
Mr. Piyush Garg, counsel for the caveator.
Dated: 11.10.2023
Hon'ble Vivek Bharti Sharma, J. (Oral)
This second appeal has been filed against the
judgment/decree dated 05.08.2023 passed by District
Judge, Dehradun in Civil Appeal No.80 of 2022, "Nitin
Sharma vs. Vipin Sharma & another", whereby the
judgment/decree dated 23.05.2022 passed by the Civil
Judge, (J.D.) Dehradun in OS No.268 of 2018 decreeing
the suit of the respondent no.1/plaintiff for possession
and recovery of damages, has been upheld.
2. Heard learned counsel for the parties on the
admission.
3. Learned counsel for the appellant/defendant
would submit that the substantial questions of law,
framed in the memo of appeal, would arise for
consideration in the present appeal.
4. For the sake of convenience, substantial
questions of law framed in the memo of appeal are
extracted as under:-
"A) Whether in the absence of proof of contents of
alleged gift deed dated 22.09.2017 by the plaintiff
as per law being basis of the suit, impugned
judgments could sustain being passed in express
ignorance of Section 90A of Evidence Act, 1872.
B) Whether once alleged gift deed is dated
22.09.2017 based on which suit was instituted on
02.07.2018 which is a fact borne from the record,
the judgment of learned trial Court could sustain
while relying upon Section 90 of Evidence Act, 1872
observing that plaintiff has produced original
documents 20 years old and there is presumption of
its genuineness.
C) Whether both the Courts below failed to
appreciate the distinction between proof of due
execution of the document and the proof of contents
of the document and passed the impugned
judgments perversely.
D) Whether in the absence of any evidence adduced
by the plaintiff on record that defendant/appellant
had been his licensee, impugned judgment could
sustain being perverse and based on no evidence.
E) Whether judgment of learned lower appellate
Court is in conformity with the spirit of Order 41
Rule 31 CPC, without discussing and appreciating
the grounds of appeal, the entire pleadings and
evidence independently, and recording its
conclusion on the issues involved independently.
F) Whether impugned judgments passed by both
the Courts below could sustain in the absence of
proof of ingredients embodied under Section 122
read with Section 124 of Transfer of Property Act,
1882."
5. Factual matrix of the case is that respondent
no.1/plaintiff filed a suit for possession and damages
against the appellant/defendant no.1 and respondent
no.2/defendant no.2 (wife of appellant/defendant no.1)
with averments that the suit property was purchased by
Shri Ram Naresh Sharma, father of the
appellant/defendant no.1 and respondent no.1/plaintiff
on 15.01.1982; that, on 22.09.2017 Shri Ram Naresh
Sharma gifted the suit property to respondent
no.1/plaintiff by way of registered gift deed; that,
thereafter respondent no.1/plaintiff filed the suit in the
trial court for possession and damages against the
appellant/defendant no.1 and his wife respondent
no.2/defendant no.2 with averments that the possession
of the appellant/defendant no.1 and respondent
no.2/defendant no.2 was permissive in nature and now
he does not want to keep them in possession and claimed
the damages; that, the trial court decreed the suit
whereafter appeal was preferred by the
appellant/defendant no.1, which also met the same fate.
Hence this second appeal.
6. Counsel for the appellant/defendant no.1
would submit that the impugned judgment of the Trial
Court and the First Appellate Court are bad in the eyes of
law as the Trial Court and the First Appellate Court have
erred in not appreciating the fact that there was no
acceptance of the gift allegedly made by his father Ram
Naresh Sharma to his brother i.e. respondent
no.1/plaintiff as per Section 122 of the Transfer of
Property Act and even the contents of the gift deed dated
22.09.2017 were not proved.
7. Learned counsel for the appellant/defendant
no.1 made another feeble argument on the point that the
license to the appellant/defendant no.1, as alleged in the
plaint, by respondent no.1/plaintiff is not adequately
proved as in the plaint it is merely stated that the
appellant/defendant no.1 and respondent no.2/
defendant no.2 were in possession of the suit property by
virtue of being the son and daughter-in-law respectively
of the father of respondent no.1/plaintiff.
8. Counsel for respondent no.1/plaintiff, the
caveator, would vehemently oppose the submissions
made by counsel for the appellant/defendant no.1 and
would submit that the donor of the property Shri Ram
Naresh Sharma i.e. father of the appellant/defendant
no.1 and respondent no.1/plaintiff presented himself as
PW2 and deposed in para 3 of his affidavit in evidence
that the possession of the appellant/defendant no.1 was
permissive in nature as he was in possession by virtue of
his son; that, PW2 Ram Naresh Sharma is the executant
of the gift deed in favour of respondent no.1/plaintiff and
he examined himself and proved the gift deed.
He would further submit that respondent
no.1/plaintiff himself was the person, who had put his
signatures on this gift deed and in para 2 of the gift deed
it was specifically stated that the donee of the property
i.e. respondent no.1/plaintiff had accepted the gift deed
made by his father.
He would further submit that when the
executant and donor of the gift deed Shri Ram Naresh
Sharma, the father of the appellant/defendant no.1 and
respondent no.1/plaintiff examined himself as witness
and proved the duly registered gift deed then not only the
gift deed but even the acceptance and the contents of the
gift deed stands proved beyond any doubt.
He would further submit that the
appellant/defendant no.1 and his wife respondent
no.2/defendant no.2 were in possession of the suit
property because they were allowed to reside in that
property by the father of respondent no.1/plaintiff and
after execution of the gift deed they were allowed to
remain in possession and their possession was only
permissive.
He would further submit that the moment
notice was given to the appellant/defendant no.1 and
respondent no.2/defendant no.2 the license was
cancelled and their possession became non-permissive
and respondent no.1/plaintiff was entitled for the
damages for continued possession against the will of
respondent no.1/plaintiff. He would further submit that
the judgments passed by Trial Court and the First
Appellate Court are based on proper appreciation of facts
and are liable to be affirmed.
9. Perused the impugned judgments of the Trial
Court and the First Appellate Court. The submissions
made by the learned counsel for the appellant/defendant
no.1 on the substantial questions of law are not
acceptable for the reason that the respondent
no.1/plaintiff himself is the witness to the gift deed and
he has put his signatures affirming the acceptance as
stated in para 2 of the gift deed. The contents of the gift
deed also stood proved when the executant and donor of
the gift deed i.e. Ram Naresh Sharma examined himself
as witness as PW2.
10. In view of the above submission, this Court is
of the considered view that no substantial question of law
arise for consideration of this Court. Present appeal lacks
merit and is hereby dismissed in limine.
(Vivek Bharti Sharma, J.)
11.10.2023
BS
