JUDGMENT R.N. Ray, J.
1. Plaintiff-appellant has filed this appeal being aggrieved by the Judgment and decree passed in Civil Appeal No. 205 of 1977 by Shri Shital Singh, Additional Civil Judge, Mathura on 20.8.1981 and that appeal arose out of O. S. No. 504/69.
2. Plaintiff has filed suit for khas possession basing his claim on a gift made by one Purshottam Das to Smt. Kamlawati Bahuji on 26.1.1989 who happens to be the 'Nati' of Smt. Kamlawati Sahuji. It was asserted by the plaintiff that Purshottam Das son of Keshav Das was the owner of the property althrough and he executed a gift deed dated 26.1.1989 in respect of the suit property and other properties to Smt. Kamlawati Bahuji who entered Into possession in pursuant to that deed. The defendants claimed that property in suit was gifted by one employee of Thakur Dwarkadish Ji in favour of the defendant No. 1. The defendant No. 2 executed a deed in favour of defendant No. 1 who was an employee of Thakur Dwarkadish Ji. The defendant No. 1 asserted title by virtue of adverse possession. The defendant further claimed that the suit property did not tally to schedule of gift deed made by Purshottam Das in favour of Smt. Kamlawati Bahuji. On perusal of pleadings, the learned trial court framed Issues and upon discussion regarding the possession and upon other materials on record, both oral and documentary evidences, decreed the suit for possession as the defendant failed to prove any title whatsoever in suit property. However, the learned appellate court below held that plaintiff was to prove his title of the suit property and suit property was not identified and on discussion over the relevant materials found that only three sets of boundaries tallied. There was some description of the property which existed at the relevant time but that did not tally with the property-in-suit. so he was pleased to hold property covered by that deed gift made in favour of Smt. Kamlawati Bahuji. dated 26.1.1989 was not identical with the suit property.
3. The learned appellate court held that the property was not properly described and the identity of the suit was doubtful and moreover the defendant claimed the property by adverse possession on the basis of an unregistered deed executed by defendant No. 1 to defendant No. 2 and he was pleased to hold that said deed was admissible in evidence and the defendant No- 2 was entitled to use the same as shield against the claim of plaintiff in view of Section 53A of the Transfer of Property Act. Through the learned appellate court below did not mention Section 53A of the Transfer of Property Act but from his discussions it was clear that he held that said unregistered document could be used as a shield against the claim of the plaintiff for possession. Learned counsel for the appellant submitted that learned appellate court did not assign any reason for disbelieving plaintiffs evidences and simply used one word that the evidence as adduced by the plaintiff was not of worth for believing the same. Learned counsel for the appellant submitted that this finding is a jumping conclusion without proper reasoning as such it was perverse finding. Learned counsel for the appellant submitted that certified copy of the registered sale deed dated 26.1.1989 was more than 20 years old as such it was admissible in evidence and in this connection he has relied upon the decision in 1983 All LJ 865, wherein it has been held that certified copy of the gift deed can be relied upon if it is more than 20 years old and that is admissible in evidence and that Judgment was based upon a Full Bench decision of our Hon'ble Court in AIR 1989 All 385 and in that judgment the provisions of Section 27 and Articles 64 and 65 of Limitation Act, 1963 were also fully discussed and it has been held that it was for the party to prove his title by adverse possession and the party who based his claim on title was not required to prove that title was not extinguished by adverse possession.
4. Learned counsel for the appellant referred another judgment as in AIR 1987 All 25.
5. Learned counsel for the respondents submitted that the learned appellate court thoroughly discussed materials on record regarding adverse possession and this Court in a second appeal should not disturb those findings as those findings cannot be said to be perverse because cogent reasons had been assigned by learned lower appellate court. The learned lower appellate court described the evidence of plaintiff as not of worth to be relied upon and it has been further, submitted that since the plaintiff based his title upon a certified copy of the registered-deed as such it was Inadmissible in evidence in view of the provisions of Sections 90 and 90A of the Indian Evidence Act and he referred a decision in AIR 1974 All 389. Learned counsel for the respondents referred another decision in 1997 (5) SCC 438, wherein their Lordship of the Apex Court held that High Court while interfering in a second appeal must satisfy with substantial question of law and facts which are involved and if such proper grounds are not being taken in memo of appeal then it will be the duty of the High Court to formulate the substantial questions of law and give notice to opposite party and allow fair and proper opportunity to meet those point/points so that the other side may meet those point/points at the time of hearing. In this way the learned advocate for defendant respondents submitted that the appeal should be dismissed with costs.
6. Duly considered the submissions of both sides.
7. Perused both the judgments and also pursued the evidences both oral and documentary, minutely.
8. Learned trial court thoroughly discussed the report of the advocate Commissioner and thereafter on assigning proper reasoning held suit property was also got incorporated in the schedule of that gift-deed made by Purshottam Das and learned trial court discussed the evidences on record for coming to a conclusion that the plaintiff duly proved his title and as such he was entitled to khas possession. It was not open for the defendant to say that the boundaries of the disputed land were not correct, that did not tally with the concerned schedule of the gift deed dated 26.1.1989. In view of the fact that in the defendants' own notice dated 29.4.1958, the boundaries of the disputed property were categorically mentioned and the defendants knew that what was the suit property and the document of title of the defendant being unregistered sale deed was not admissible (paper No. 52-Ka, dated 7.5.1955) in evidence. Section 53A of the Transfer of Property Act can be used as a shield provided that person who claimed his title to the property had parted with the possession of the property and the other side in pursuant of that agreement which was unregistered document went into that possession. Here the person shall certainly include his predecessors in interest or successor-in-interest. Here neither the plaintiff nor his predecessors made any document in favour of the defendant No. 1. It was one of the employees of the Thakur Dwarkadish Ji that is to say one of the 'Pujaris' transferred the property in favour of the defendant No. 1, so Section 53A had no scope to play In this particuar case. The plaintiff has proved his title by a registered gift deed. Many properties were transferred by that deed of gift and those were duly recorded and the name of the plaintiff or plaintiffs predecessors-in-Interest, i.e., the name of Smt. Kamlawatl Bahujl were duly recorded in certain records of right which pointed out that said deed of gift was duly accepted and acted upon. The finding of the learned appellate court that there was no basis for putting reliance upon plaintiff's evidence was erroneous : other properties which were also gifted got duly recorded in the name of the plaintiff would go to show that Smt. Kamlawati Bahujl duly accepted the deed of gift. Purshottam Das by registered deed of gift dated 26.1.1989 gifted the same in favour of Smt. Kamlawati Bahujl due to natural love and affection and she accepted the same. There was no evidence of worth or denial on oath that Balkrishan was not adopted by Smt. Kamlawati Bahujl. So, it was rightly held by trial court that Balkishan was duly adopted by Smt. Kamlawati and as such Bal Kishan got all the properties Including the disputed property as covered by said registered deed of gift. It is to be proved by the defendant that they acquired title by adverse possession in view of the Articles 64 and 65 of Limitation Act. The provisions of Article 144 of the earlier Limitation Act has nothing to play after promulgation of new Limitation Act with effect from 1.1.1964.
9. The plaintiffs notice dated 3.12.1959 as published in Amar UJala may be also taken Into consideration along with other materials placed as documentary evidences In the trial court. Those evidences are duly considered along with oral evidence, then hardly there Is any room to doubt that plaintiff failed to prove his case.
10. In the circumstances, as discussed above. I find that the judgment and decree as passed by learned appellate court below are erroneous and as such those are set aside and the judgment and decree as passed In O. S. No. 504/69 of the Court of II Munsff. Mathura, are hereby affirmed.
11. The appeal thus stands allowed on contest with cost.