HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Second Appeal No. 121/2021 State Of Rajasthan Through R.a.c Rajasthan, Jaipur Through Commander R.a.c. Dholpur. ----Appellant Versus 1 Ayodhya Prasad S/o Shri Shiv Prasad, R/o Village Kanpur (Through Legal Heirs Since Deceased) 1/1 Anil Kaushal S/o Late Shri Ayodhya Prasad, R/o 153, Chandra Nagar, Lalbangla, Kanpur. 1/2 Aman Kaushal S/o Late Shri Ayodhya Prasad, R/o 153, Chandra Nagar, Lalbangla, Kanpur. 1/3 Smt Pushpa Gupta D/o Late Shri Ayodhya Prasad W/o Shri Rajkumar Gupta, R/o C- 12, New Krishna Park, New Delhi- 11001. 2 Kamta Prasad S/o Shri Shivprasad, (Through Legal Heirs Since Deceased) 2/1 Krishan Kumar Kaushal S/o Late Shri Kamta Prasad, R/o Shobha Eye Vaxikondhawa, In Front Of Marutisai, Pune- 411048 2/2 Manoj Kumar Kaushal S/o Late Shri Kamta Prasad, R/o Om Kutir, Kajinazrul Islam Shaarnimadhyam, Kolkata- 00129. 2/3 Suman Gupta D/o Late Shri Kamta Prasad W/o Shri Rakesh Gupta, R/o 50, I.R.S. Society, Abhaykhana, Indrapuram, Gaziabad (U.p.) 2/4 Arun Kotwali D/o Late Shri Kamta Prasad W/o Shri Bhupendra Kotwali, R/o 001, Ground Floor, Adarsh Hills Apartment, In Front Of Dayanand Engineering College, Swami Lay-Out, Bengluru-560078 2/5 Rekha Gupta D/o late Shri Kamta Prasad W/o Brajesh Gupta, R/o 27/166, North Vijay Nagar Colony, Agra (U.p.) 3 Durga Prasad S/o Shri Shiv Prasad, (Through Legal Heirs Since Deceased) 3/1 Shakuntala Devi W/o late Shri Durga Prasad, R/o 34-C, Kolkata Street, Kolkata. 3/2 Sunil Kumar Kaushal S/o Late Shri Durga Prasad, R/o 34- (2 of 8) [CSA-121/2021] C, Waliganj, Rarkular Road, Kolkata. 3/3 Anoop Kumar Kaushal S/o Late Shri Durga Prasad, R/o 34-C, Waliganj, Rarkular Road, Kolkata. 3/4 Praveen Kumar Kaushal S/o Late Shri Durga Prasad, R/o 99/40-C, Karaya Road, Kolkata. 3/5 Anju Gupta W/o Arun Gupta D/o Late Shri Durga Prasad, R/o Swarnmani, Kolkata. 4 Dr. Rajendra Prasad S/o Shri Shiv Prasad, (Through Legal Heirs Since Deceased) 4/1 Indra Gupta W/o Late Shri Rajendra Prasad, R/o 34-C,kooltala Road, Kolkata- 700073 4/2 Paresh Kaushal S/o Late Shri Rajendra Prasad, R/o 34-C,kooltala Road, Kolkata- 700073 4/3 Vinay Kaushal S/o Late Shri Rajendra Prasad, R/o 34-C,kooltala Road, Kolkata- 700073 5 Vijendra Kumar S/o Shri Shivprasad, R/o 34-C, Kooltala Road, Kolkata-700073 6 Rakesh Kumar S/o Shri Shivprasad, R/o 34-C, Kooltala Road, Kolkata-700073 7 State Of Rajasthan Through District Judge, Dholpur (Raj.) ----Respondents For Appellant(s) : Mr. Vishnu Dutt Sharma, AAAG on behlf of Mr. Bhuwnesh Sharma, AAG For Respondent(s) : HON'BLE MR. JUSTICE MANEESH SHARMA Order 10/03/2026 1. The present second appeal has been filed by the defendant/appellants assailing the judgment and decree dated 08.02.2021 passed by the learned District & Session Judge, Dholpur as well as, the judgment and decree dated 10.03.2016 (3 of 8) [CSA-121/2021] passed by Civil Judge & Judicial Magistrate, Rajakhera, District Dholpur, whereby the suit for possession filed by the plaintiff/respondents has been decreed. 2. Brief facts giving rise to the present appeal are that the plaintiff/respondents filed a suit for possession in respect of the suit property, while stating that the suit property was given on license by the predecessor-in-title of the plaintiff/respondents namely Lala Ram Swaroop in July, 1959, to the defendant/appellants, and thereafter, in the year 1983, an additional room was also given on license to the defendant/appellant. It was stated in the plaint that since the defendant/appellant has raised certain constructions without obtaining due permission from the plaintiff/respondents and constructed a washroom therein, therefore, the plaintiff/ respondents, being owners of the suit property, served a legal notice terminating the license of the defendant/appellant and filed the present suit seeking possession of the suit property. 3. After service, the present defendant/appellants filed a written statement wherein they have denied the averments made in the plaint and raised a defense that the defendant/appellants are not a licensee rather they are the owner of the suit property as the property in question has been orally gifted by the predecessor-in-title of the plaintiff/respondents namely Lala Ram Swaroop to the defendant/appellants and contested that once the property has been given in gift, the same cannot be revoked and accordingly, prayed that since the possession of the defendant/appellants over the suit property is not in the capacity (4 of 8) [CSA-121/2021] of a licensee rather in the capacity of owner, the present suit may be dismissed. 4. On the basis of the pleadings of the parties, learned Trial Court framed the following issues: "(1) आया वादीगण के पूवरज स. लाला रामसरप के बाग मे ससत दो कमरों जजनका वणरन वादपत की चरण सं. 3 मे जकया गया है, को आर.ए.सी. के कमाणेन को रहने के जलये लाईसेस पर जदया था? (2) आया पजतवादीगण की आर.ए.सी. के कमरचारीगण उक बाग मे तोडफोड करते है, पाखाना आजद का जनमारण अवैध तरीके से जकया है ? (3) आया वादीगण ने लाईसेस को समाप कर जदया है इसजलए वह जववाजदत कमरों को खाली करापाने के तथा कबा पाप करने के अजधकारी है ? (4) आया बाग मे ससत जववाजदत कमरों को पजतवादीगण के आर.ए.सी. कमाणेन को 1959 मे स. लाला रामसरप ने मौसखक दान दी थी ? (5) आया जववाजदत समजत आबादी की ना होकर राजस ररकॉरर मे दजर है, इस कारण इस नायालय को बाद सुनवाई का केताजधकार नहीं होने से दावा पोषणीय नहीं है ? (6) आया दोनों कमरों की कीमत जवाब की मद सं. 12 के अनुसार बारह लाख रपे है एवं वादीगण ने कम कोरर फीस अदा की है ? (7) आया वादीगण दारा पजतवादीगण को धारा 80 जा.दी. का नोजरस जवजधक पावधानों के तहत नहीं जदया है, इस कारण दावा खाररज जकये जाने योग है ? (8) आया वादीगण के हक मे जदनांक 13.05.68 को की गई तथाकजथत वसीयत फजर है ? (9) अनुतोष ?" 5. Thereafter, in order to substantiate the averments made in the plaint, Plaintiff/respondents examined as PW-1 Ayodhya Prasad, PW-2 Prayagdas, PW-3 Narayan Singh and exhibited the documents as Ex.-1 General Power of Attorney, Ex.-2 General Power of Attorney, Ex.-3 copy of Notice, Ex.- 4 & 5 two receipts of Post office, Ex.- 6 U.P.C. Receipt, Ex.-7 Original Will, Ex.- 8 to 60 Electricity bills and receipt, Ex.- 61 Jamabandi, Ex.- 62 photocopy of the site plan No. 2, Ex.-63 Khasra Girdawari. 6. In rebuttal, the defendant/appellants examined DW1 Rambabu, DW2 Nizamuddin and DW3 Vijay Kumar Singh and (5 of 8) [CSA-121/2021] produced documents as Ex. D1 & D2 R.A.C. Camp, Rajakhera, Ex- D3 letter dated 30.09.1990 from the Office of Company Commander E-Company, D3 to D48 Bills, cash memo, receipt, Ex- D49 letter dated 08.04.1991 by Asst. Engineer, P.W.D. to the Asst. Commandant, Ex-D50 assessment R.A.C. Camp and Ex- D51 map of the property. 7. After hearing the arguments of the parties, the learned trial Court, while deciding all the issues in favour of the plaintiff/respondents, decreed the suit and passed a decree of possession for the suit property i.e. two rooms vide judgment and decree dated 10.03.2016. 8. Being aggrieved of the judgment and decree dated 10.03.2016, the present defendant/appellant preferred the Regular Civil Appeal No. 12/2017, whereby the learned Appellate Court, after hearing the arguments of all the respective parties, confirmed the findings recorded by the learned Trial Court and dismissed the appeal vide impugned judgment and decree dated 08.02.2021. 9. Being aggrieved of which, present second appeal has been preferred by the defendant/appellants. 10. Learned counsel for the appellant submits that the learned Courts below erred in appreciating that the suit property was not given on license rather appellants are occupying the property in the capacity of owner as late Lala Ram Swaroop has orally gifted the said property to them. Therefore, the suit for possession on the plea of license is unsustainable in the eye of law, hence the impugned judgments and decrees are per se illegal and (6 of 8) [CSA-121/2021] accordingly prayed that the impugned judgments and decrees are liable to be set aside. 11. Heard and considered the submissions made by the learned counsel for the appellant and also perused the relevant record and impugned judgments and decrees. 12. From a bare perusal of the record, it is revealed that the case of the plaintiff/respondents is that the suit property was given on license in the year 1959, by the predecessor-in-title of plaintiff/respondents late Lala Ram Swaroop and later on, an additional room was also given to the appellant on license in the year 1983. Thereafter, since the licensee has raised additional construction of a washroom on the suit property, therefore, the plaintiff/respondents served a legal notice upon the defendant/ appellants and terminated the license and filed the present suit for possession. 13. After considering all the evidence, oral and documentary, led by the parties, the said suit has been decreed by the learned Trial Court vide judgment and decree dated 10.03.2016. Thereafter, the said judgment and decree was challenged by the appellant in the first appeal, which was dismissed vide judgment and decree dated 08.02.2021. 14. The plea raised by the learned counsel for the appellant relating to the oral gift deed is not maintainable in view of Section 17 of Registration Act, 1908. 15. Even otherwise, from the evidence of the appellant, it is not proved as to who has accepted the said gift. Therefore, in view of Section 122 and 123 of Transfer of Property Act, 1882 the factum of gift is not proved. (7 of 8) [CSA-121/2021] 16. On the contrary, the plaintiff/respondents have proved their right and ownership over the suit property and the fact that the suit property was given on license by late Lala Ram Swaroop in the year 1959 and 1983 to the appellant. Accordingly, the findings so recorded by the learned Courts below cannot be said to be perverse or unsustainable in the eye of law. 17. It is also pertinent to mention here that during the course of arguments, learned counsel for the appellant fairly admitted that during pendency of the present appeal, the possession of the suit property has been handed over to the plaintiff/respondents (landlord) in execution proceedings. 18. Further, the proposed questions so raised in the memo of second appeal and by the learned counsel for the appellant are not substantial questions of law rather the same are questions of fact which cannot be examined in the present second appeal filed under Section 100 of CPC. 19. In Nazir Mohamed vs J.Kamala And Ors.1, the Hon'ble Apex Court held that the condition precedent for entertaining and deciding a second appeal is the existence of a substantial question of law. 20. In view of the aforesaid facts and circumstances, this court is of the considered opinion that the findings arrived at by the learned Trial Court as well as the First Appellate Court are based on a proper appreciation of oral and documentary evidence. Hence, the concurrent findings arrived at by the learned Trial Court as well as the First Appellate Court are found immaculate and infallible in the eye of law. 1 AIR 2020 SC (4321) (8 of 8) [CSA-121/2021] 21. Thus, in view of the discussions made herein above, no question of law much less any substantial question of law is involved in the present second appeal warranting interference by this court in exercise of its jurisdiction under section 100 of CPC. 22. Accordingly, no substantial question of law is involved in the present second appeal, the impugned judgment and decree passed by both the learned Courts below are hereby affirmed and in result thereof, the present second appeal being devoid of merits, is hereby dismissed 23. All pending application(s), if any, also stand disposed of. (MANEESH SHARMA),J EKTA/2