GOUR GOPAL SAHA Vs. ASMITA SAHA

JUDGEMENT

(1.) This appeal is preferred under Sec. 96 of CPC challenging the judgment dtd. 9/3/2021 and decree dtd. 15/3/2021 delivered by Learned Civil Judge, Senior Division, Court No.2, Udaipur, Gomati District in connection with case No.T.S.38 of 2016.

(2.) Heard Learned Counsel, Mr. Suman Bhattacharjee appearing on behalf of the appellant-defendant No.1(ii) and also heard Learned Senior Counsel, Mr. B. N. Majumder assisted by Learned Counsel Mr. K. Deb, Mr. E. Debbarma and Ms. R. Majumder appearing on behalf of the respondent- plaintiff. Learned Counsel, Mr. B. Banerjee also appeared on behalf of the respondent-defendant Nos.1(iii)-(vii).

(3.) Before proceeding with the merit of the appeal, let us discuss about the subject matter of the dispute amongst the rival parties. The respondent-plaintiff filed one suit for declaration and recovery of possession of the suit land measuring 0.084 acres appertaining to Khatian No.1870 under Mouja- Udaipur as described in the schedule of the plaint before the Court of Learned Civil Judge (Sr. Div.). The respondent-plaintiff, being a minor instituted the suit through her father before the Learned Trial Court Sri Nitai Lal Saha as a natural guardian and next friend with a prayer for declaration of title over the suit land, recovery of possession thereof with further claim for mesne profits against the original defendant Sikha Rani Saha (since dead). The case of the respondentplaintiff was that the original defendant Sikha Rani Saha (since dead) who was her grandmother was the owner of the aforesaid suit property. On 17/4/2009 said Sikha Rani Saha executed a deed of gift in favour of the plaintiff gifting the suit property in her favour. The gift deed was registered at the house of the principal defendant on commission. Since the respondent-plaintiff was on that relevant point of time a minor, so, the gift was accepted by her father Sri Nitai Lal Saha on her behalf. After execution of the gift deed, Sikha Rani Saha also delivered possession of the suit property to the plaintiff which was accepted by her father as her natural guardian. As the plot of land is attached to the residential plot of the original defendant, so, it remained under the constructive possession of the respondent-plaintiff through the original defendant Sikha Rani Saha as she allowed said Sikha Rani Saha being her grandmother to utilize the land for the purpose of growing plants and vegetables. After few months of execution of deed of gift when the respondent-plaintiff through her father applied for mutation of the suit land before the Revenue Authority that time it was denied on the ground that the respondent-plaintiff did not have possession over the suit land and her appeal against such order of refusal is pending. It was also the case of the respondent-plaintiff that said Sikha Rani Saha in collusion with other near relatives and pressure from daughters started showing hostile title to the suit property and also started declaring that the principal defendant did not execute any such gift deed and the father of the respondent-plaintiff got some signatures on some stamp papers and by pressurizing her got the gift deed executed. The original defendant before the Learned Trial Court contested the suit by filing written statement denying the assertions of the respondent-plaintiff and also took the plea that the suit was not maintainable, the description of the suit property was not proper and it was not properly stamped. It was further asserted that she never executed any gift deed in favour of the plaintiff nor she handed over possession of the suit land to the plaintiff. Further, according to the principal defendant of the original suit, Nitai Lal Saha, the father of the respondent-plaintiff is her younger son and on his invitation she, i.e. the principal defendant and her husband went to Aurangabad to stay therein for a considerable period and during that period, Nitai Saha took all care of his parents for which the defendant gained some confidence upon her son and taking advantage of the trust, Nitai Saha deceived and derived all signatures and thumb impression of Sikha Rani Saha on papers without letting her know the purpose of those papers. However, on receipt of notice from the Court of Deputy Collector and Magistrate, she for the first time came to know that Nitai Lal Saha obtained one fraudulent deed of gift on the papers taking signature of his mother Sikha Rani Saha. She also submitted objection against the prayer for mutation and accordingly, the same was denied and rejected. She further asserted that the respondentplaintiff did not derive any title to the suit land by the alleged deed of gift and also did not get possession. She filed amended written statement wherein she asserted that she did not execute any gift deed voluntarily and she did at the instigation and pressure of Nitai Lal Saha. It is to be noted here that during the pendency of the suit, the respondent-plaintiff attained majority and elected to proceed with the case in her own name and the sole defendant, Sikha Rani Saha also died and she was substituted by her legal heirs, so, the Learned Trial Court by order dtd. 5/12/2018 included the names of all the legal heirs of said deceased Sikha Rani Saha and thereafter, as the substituted defendant No.1(i), Sri Harimohan Saha, being the husband of said Sikha Rani Saha was also expired, so, his name was also struck off from the record as per order dtd. 23/4/2019. However, upon the pleadings of the parties, Learned Court below framed total five nos. of issues which are mentioned herein below: