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Assam Schedule VII, Form No. 133

Form No.(J) 3

HEADING OG JUDGMENT IN APPEAL

District :Dibrugarh

IN THE COURT OF THE CIVIL JUDGE, DIBRUGARH

Present : Md. M.H. Barbhuiya,

Civil Judge, Dibrugarh

Title Appeal No. 73/13

Monday, the 18th day of September, 2017

Inamul Mazid @ Baju @ Prince @ Buwa

Son of Late Abdul Mazid

Resident of Moran mouza

P. S. Moran, District- Dibrugarh, Assam

…..… Appellant

-VS.-

1. (i) Salima Khatoon @ Lily Begum

(ii) Hasina Khatoon @ Doly Begum

iii) Md. Maniruddin Ahmed @ Bubu

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(iv) Md. Mobinul Hussain

Substituted vide order dated 02.07.15

of late Suzauddin Ahmed

Resident of Moran, P.S. Moran

District- Dibrugarh, Assam

………. Plaintiffs/Respondents

2. Smti. Usha Devi Verma

Wife of Sri Ramesh Kumar Verma

Resident of Dimbeswar Chutia path, Ward No. 2

P.S. Moran, District- Dibrugarh

3. Sri Bhaskar Rajkonwar,

Advocate, Dibrugarh Bar Association

Dibrugarh, Assam

4. Sri Swapan Dey

Pleader’s clerk

Dibrugarh Tarani Sangha

Dibrugarh, Assam

…… Proforma respondents.

This appeal coming on for hearing (or having been heard)

on 15.09.2017 in the presence of :

Sri J.N.Bora, Learned Senior Advocate for the respondents

and Sri S. Dutta, learned Advocate for the appellant

Sri P.Gogoi, Learned Advocate for the proforma respondents

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And having stood for consideration on this the 18th day of

September, 2017 this court delivered the following judgment :-

JUDGMENT

1. The instant appeal has been filed by the defendant/appellant

challenging the judgment and decree dated 13.11.13 passed by

learned Munsiff No. 1, Dibrugarh in Title Suit No. 100/07.To

appreciate the entire matters, let me put the cases of the parties

in brief.

2. The plaintiff Musstt. Sofia Khatoon (since deceased) filed the suit

stating inter-alia that the defendant/appellant Inamul Mazid who

is her nephew was having very cordial relationship with her. The

land owned by the defendant/appellant was adjacent to her land

and when the appellant raised construction of his R.C.C. building

in the year 2001 over his own land, he was required a plot of

land measuring 40-ft x 24-ft and out of love and affection,

verbally, she allowed him to use and occupy that plot of land

fully described in the schedule B of the suit.

2.1 It is the contention of the original plaintiff that in the month of

December, 2001, the defendant/appellant requested her to

execute the deed of gift in respect Schedule B land and

accordingly, on good faith without going through the narrations

she put her signatures in the deed of gift, wherein her husband

Sujauddin Ahmed (since deceased) also put his signature as a

witness. It is the contention of the original plaintiff that in the

month of December, 2004 the defendant/appellant who could

not refund a sum of Rs. 4,75,000/- to her which he took as loan

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from her time to time, on demand, became angry and one day

asked her and her husband to vacate the land mentioned in ‘A’

and ‘B’. At that time, defendant/appellant claimed that he is the

owner and title holder of the entire land. Being shocked and

surprised, she obtained relevant documents from the office of

the Senior Sub- Registrar, Dibrugarh and the Circle Officer,

Moran Revenue circle and came to know that the

defendant/appellant prepared a gift deed in respect of the entire

properties measuring 4K-8 L and also got his name mutated in

the revenue records.

2.2 It is further contention of the original plaintiff that during

pendency of the suit the defendant/appellant sold out his land

including the land mentioned in schedule ‘B’ in favour of one

Usha Devi defendant No. 1(a)) without following the procedure

established by law. As the activities of the defendant/appellant

cast cloud on her right, title and interest she filed the suit

praying for a declaration of her right, title, interest and

possession over the suit land ; for cancellation of deed of gift

No. No. 2122 of 2001 ; issuing a precept to the Circle Officer,

Moran Revenue Circle to cancel the mutation granted in favour

of the defendant/appellant ; permanent injunction along with

ancillary relief.

3. The defendant/appellant filed written statement denying

maintainability of the suit in facts and in law.

Defendant/appellant contended that the suit is bad for non-

joinder of the Deputy Commissioner, Dibrugarh; Circle Officer,

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Moran and the Senior Sub Registrar, Dibrugarh; the suit is barred

by limitation and that there is no cause of action for the suit.

3.1 It is the contention of the defendant/appellant that the plaintiff

being issueless has been looked after by him as if he was there

own son, and, even, she and her husband nominated him as

their nominee in the bank transactions. It is the contention of the

defendant/appellant that the plaintiff and her husband were well

educated. Both of them being holders of Master Degree with

their full consent and voluntariness wished/intended to gift the

entire suit land in his favour and thereafter, by obtaining

necessary permissions they executed the deed of gift before the

Sub- Registrar, Dibrugarh on 26.12.01.It is also stated by the

defendant/appellant that the possession in respect of the suit

land was also handed over to him. While denying the other

contentions including taking of money as loan, the

defendant/appellant prayed for dismissal of the suit.

4. Defendant 1-A Smti. Usha Devi Verma vide her written statement

contended that by executing a registered deed of sale, she

purchased a plot of land measuring 1K-19L covered by Dag No.

194 fully described in the Schedule ‘A’ of her written statement

leaving an area of land measuring 40ft x 24ft described in the

schedule ‘B’ of the plaint and therefore, the question of

cancellation of the sale deed executed by the

defendant/appellant in her favour does not arise.

5. On the pleadings of the parties the following issues were framed

by the learned trial court :

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1) Whether the suit is maintainable in law and in facts ?

2) Whether there is any cause of action for the suit ?

3) Whether the plaintiff has right, title, interest and

possession over the suit land ?

4) Whether the defendant No. 1 obtained the gift deed No.

2122 of 2001, fraudulently and if so, whether the

same is liable to be cancelled ?

5) Whether the plaintiff is entitled to the reliefs claimed for ?

6) To what relief/s the parties are entitled to ?

Additional issues :

i) Whether the defendant No. 1, illegally sold a part of the

suit property to the defendant No. 1(a) during the

pendency of the suit ?

ii) Whether the sale deed No. 955 of 2012 is liable to be

cancelled ?

6. In support of their case, the plaintiff side adduced evidence of as

many as 9 witnesses and exhibited 23 Nos. of documents.

Similarly, the defendant/appellant side also has adduced

evidence of 5 Nos. of witnesses and exhibited 20 Nos. of

documents.

7. The learned trial court elaborately discussed the materials

available on record and decreed the suit as prayed for by the

plaintiff.

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8. Being aggrieved, the defendant/appellant preferred the instant

appeal on the ground that the learned trial court failed to

appreciate the materials on record in deciding the suit; for that

the learned trial court failed to decide the point of limitation

inasmuch as, the deed of gift was executed in the year 2001 and

the suit was instituted in the year 2005; for that the learned trial

court failed to appreciate the fact that the plaintiff being well

educated lady had voluntarily executed the gift deed.

9. POINTS FOR DETERMINATION: In deciding the appeal, the

following points for determination has been taken up:

1) Whether the learned trial court failed to decide the point

of limitation in accordance with law ?

2) Whether the learned trial court failed to appreciate the

materials available on record in deciding the Issue Nos. 3

and 4 pertaining to the execution of the deed of gift

involved herein?

3) Whether the learned trial court rightly passed the

judgment and decree dated 13.11.13 or the same requires

interference by this court?.

10. Mr. S.Dutta, learned counsel for the appellant referring to

Section 59 of the Indian Limitation Act submits that the suit is

apparently barred by limitation but the learned trial court ignored

the important fact in deciding the issue. He submits that the

learned trial court failed to take note of the evidence adduced by

the parties particularly, that of the witness Sri Bhaskar

Rajkonwar who drafted the deed of gift. Pointing out the above,

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he submitted that the judgment and decree passed by the

learned trial court is liable to be set aside by allowing the appeal.

11. Mr. P. Gogoi, the learned counsel for the respondent Usha Devi

Verma submitted that she purchased the land covered by Dag

No. 194 which was owned possessed by the appellant Inamul

Majid. He further submitted that the land purchased by Smti.

Usha Devi Verma is in no way connected with the land covered

by the plaintiff and more particularly, Usha Devi Verma does not

have any claim over the land measuring 40ft x 24ft mentioned in

Schedule B of the plaint.

11.1 Mr. J.N. Borah, learned senior counsel referring to the

materials available on record has pointed out that a two storied

R.C.C. building is standing over the suit land where the original

plaintiff and her husband used to reside. It is out of love and

affection, the original plaintiff in whose name the suit land

stands allowed Inamul Majid to extend the building over the suit

land ‘B’ and they were ready to execute a formal deed of gift for

that plot of land in his favour, but Inamul Majid committed

cheating with them and played game with their confidence by

making the gift deed for the entire land. He submitted that

delivery of possession is the most essential ingredient for a valid

gift, but from the record it came into light that at no point of

time possession of the suit land except 40ft x 24ft was ever

delivered to the appellant and that aspect itself proves that there

was no gift of the entire suit land. He submitted that the Assam

Land and Revenue Regulation, 1886 provides detailed procedure

including notice upon the co-sharers before granting mutation in

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respect of any land, but, there is nothing in the record to show

that the Circle Officer, Moran Revenue circle ever issued any

such notice in granting mutation in respect of the suit land in

favour of the defendant/appellant.

12. The core of his submission is that, had the plaintiff was ever

been intimated from any authority that some other persons were

going to mutate their names over her own land she would have

come forward seeking appropriate relief, but it is only in the

month of December, 2004 when the defendant/appellant asked

her to vacate the suit land then only foul play committed by him

was detected. Pointing out the above, he submitted that the

learned trial court did not commit any wrong in passing the

judgment and decree and therefore, the appeal is liable to be

dismissed.

13. DISCUSSION, DECISION AND REASONS THEREFOR: I

have heard the rival contentions advanced on behalf of the

parties. Also perused the record. Upon perusal of the materials

available on record and hearing the learned counsel for the

parties, let me evaluate the materials available on record to

decide the points for determination.

14. On perusal of the record it appears that the questioned deed of

gift marked as Exhibit 15 was executed on 26.12.01 and the suit

was filed on 27.04.2005. If Section 58 of the Limitation Act,1963

is taken into consideration then it would be seen that the period

of limitation is only 3 years from the date when the right to sue

first accrues. On the other hand, Section 59 of the Act provides

that the period of limitation for setting aside an instrument or

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decree or for the rescission of a contract is 3 years from the

date when the fact entitling the plaintiff to have the instrument

or decree cancelled or set aside or the contract rescinded first

became known to him.

15. In the case in hand, the plaintiff Sofia Khatoon (since deceased)

did not claim only for the right, title and interest over the suit

lands, but also prayed for cancellation of the deed of gift marked

as Exhibit 15.The plaintiff in her evidence as P.W.1 and others

P.Ws.reiterated the facts pertaining committing of the foul play

by the defendant/appellant came to light only in the month of

October, 2004, when the defendant /appellant claimed to have

acquired right, title and interest over the suit land. Therefore,

naturally the period of limitation would be counted from October,

2004 and not from any other date. Situated thus, it is clear that

the suit was filed well within the period of limitation. Point No. 1

is decided accordingly.

16. Now coming to the crucial point as to whether the original

plaintiff really donated suit land ‘A’ in favour of the

defendant/appellant or not, let us discuss the law and facts

involved in the issue. Section122 of the Transfer of

Property Act, 1882 defines gift as a transfer of certain existing

movable or immovable property made voluntarily and without

consideration by one person, called donor to another called

donee and accepted by or on behalf of the donee.

17. Section 123 of the said Act provides that for the purpose of

making a gift of immovable property, the transfer must be

effected by a registered instrument signed by or on behalf of the

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donor and attested by at least two witnesses. For the purpose of

making the gift of immovable property transfer may be effected

either by a registered instrument signed as aforesaid or by

delivery.

18. Both the sections taking together reflect that to constitute a valid

gift, the gift must be made (a) voluntarily (b) it must be without

any consideration (c) it must be accepted (d) done takes

possession of the gifted property and (e) the subject matter

must be specific.

19. In the case in hand, from the evidence of the P.W’s,more

particularly of the P.W.1 Sofia Khatoon, it appears that she never

intended to make any gift of the property mentioned in schedule

‘A’, rather, she had admitted that she came to Dibrugarh Sub-

Registrar Office to execute the deed of gift for the land

measuring 40-ft x 24-ft only described in schedule ‘B’ of the

suit.Secondly, from the record it has come into light that a two

storied building consisting of several rooms is also standing over

the suit land ‘A’. That building was constructed by the husband

of the original plaintiff and not by the plaintiff alone. Had the

original plaintiff really gifted the land mentioned in schedule ‘A’,

there ought to have certain narrations in respect of the standing

building also, but there is no narration in respect of the standing

building in favour of the defendant/appellant.

20. Thirdly, although the defendant/appellant claimed to have

accepted the gift and took over the possession of the suit land,

in fact, from the evidence of the plaintiff (P.W1) nothing to that

affect comes into light. The plaintiff in his cross-examination

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stated that the alleged donor verbally stated him about the

delivery of possession of the suit land and that verbal statement

is according to him physical possession. Thus, it appears that the

possession of the suit land belonged to the original plaintiff and

was never taken up by the defendant/appellant.

21. Fourthly, Regulation 52 of the Assam Land & Revenue

Regulation, 1886, provides that when an application is received

under Regulation 50 or 51, for granting mutation in favour of

any person, a notice requiring all persons who may raise

objection required to be served, but in the case in hand, the

document marked as Exhibit 1 does not reflect that before

granting mutation in favour of the defendant/appellant any such

notice was ever served upon the original plaintiff Sofia Khatoon.

Had the Circle Officer, Moran Revenue Circle informed the

alleged donor Sofia Khatoon then the reality would have come at

the relevant time.

22. Fifthly, on perusal of the record, it appears that the

defendant/appellant in para No. 14, page No. 5 of his written

statement stated that after obtaining permission for gift Smti.

Sofia Khatoon and her husband came to Dibrugarh Bar

Association at Dibrugarh and consulted with the Advocate Sri

Bhaskar Rajkonwar for preparing a gift deed in his favour and

accordingly, Sri. Bhaska rRajkonwar (ld. Advocate) drafted the

deed of gift, and on 26.12.01, the same was registered before

the Senior Sub-Registrar at Dibrugarh, but Sri Bhaskar

Rajkonwar in his evidence before this court stated that

Suzauddin Ahmed (since deceased) i.e. the husband of the

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original plaintiff along with the appellant came to their house for

preparing a deed of gift and his father entrusted him to prepare

a gift deed. Although, the contradiction in respect of the above

fact appears to be not so fatal in the regular course of

transaction, in the fact situation of the instant case the aforesaid

contradiction, according to me, bears significance towards the

claim of the plaintiff.

23. It appears from the record that the learned trial court made an

attempt to discuss the material facts taking into account the

evidence on record in deciding the issue. In view of the

discussion made herein above, I am of the considered view to

hold that the learned trial court did not commit any wrong in

deciding the Issue Nos. 3 and 4 in favour of the original plaintiff.

24. Now, coming to the right of the other defendant Usha Devi

Verma, it appears that she purchased a plot of land measuring

1K-19Ls covered by Dag No. 194 of P.P.No. 164 by executing

sale deed No. 955 dated 03.05.12 (Ext.A). The aforesaid land

was exclusively owned by the defendant/appellant. That

defendant in her written statement and evidence stated that she

did not purchase nor occupied the land measuring 40ft x 24ft

which was under the possession of the defendant/appellant.

25. The learned trial court after considering the entire materials

came to the conclusion that the sale of the land mentioned in

the sale deed by the appellant in favour of Usha Devi Verma

cannot have any effect on the land mentioned in the schedule ‘B’

and rightly concluded that the sale deed, as it stands, need not

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to be cancelled. I concur with the findings of the learned trial

court on this issue.

26. I have considered the entire judgment impugned herein, but do

not find anything to interfere. In the result, the judgment and

decree dated 13.11.2013 passed by the learned trial court in

Title Suit No. 100/07, is hereby upheld. Consequently, the

appeal being devoid of any merit is hereby dismissed without

cost.

27. Prepare a decree accordingly.

28. This disposed off the appeal on contest.

29. Send the L.C.R. to the learned trial court along with a copy of

this judgment immediately.

Given under my hand and seal of this court on this 18th

day of September, 2017.

Dictated & corrected by me

Civil Judge, Dibrugarh Civil Judge, Dibrugarh

Typed by ;; A.K. Chakravarty, steno.