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P a g e | 1
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 :
P a g e | 6
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.
P a g e | 7
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,
P a g e | 8
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
P a g e | 9
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
P a g e | 10
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
P a g e | 11
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
P a g e | 12
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
P a g e | 13
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
P a g e | 14
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.