JUMMAN SAHA Vs. DABIR SAHA

JUDGEMENT

(1.) This appeal is directed against judgment and decree dated 24th May, 2002 and 1st June, 2002 respectively passed by learned Additional District Judge, Midnapur in Title Appeal No.95 of 2001 thereby reversing the judgment and decree dated 27th April, 2001 and 4th May, 2001 respectively passed by learned Civil Judge (Junior Division), 2nd Court, Contai, Midnapur East in Title Suit No.187 of 1995. The appellant's / plaintiff's case, in short, is that 'Ka' schedule land previously belonged to one Hara Saha who by registered deed of gift being No.6537 dated 14.07.1973 gifted the 'Ka' schedule land along with other lands to the plaintiff followed by delivery of possession and that since then plaintiff was in possession of those lands by paying rent to the Government. Subsequently, it was detected that due to mistake of the scribe a plot No.1581 instead of plot No.1481 was written in the deed of gift. Though said mistake was palpable as Hara Saha had no right, title or possession over plot No.1581, though he had such right, title and interest on plot No.1481. On 25th Ashar, 1402 B.S. the defendants threatened the plaintiff with dispossession from 'Ka' schedule property i.e., plot No.1481 and as a result, plaintiff was compelled to file said Title Suit No.187 of 1995 for declaration of title over 'Ka' schedule land and other consequential reliefs.

(2.) The defendants contested said suit by filing written statement denying material allegations of the plaintiff and contending inter alia that Hara Saha who was admitted owner of the suit property died issueless and out of love and affection handed over the possession of the same to the defendants being his nephews in the year 1970 and since then defendants were in possession and accordingly their names were recorded in record of right and that plaintiff had no right, title, interest and possession over the said land and the suit should be dismissed with cost. It was further case of the defendants that plot Nos. 219, 213 and 214 mentioned in the deed of gift were exclusive property of Pir Saheb and those were used by the people of Muslim community and that no individual had right to deal with the same. On the basis of the plea of the parties learned Trial Court framed as many as seven issues which stand as follows:- (1) Is the suit maintainable in its present form and prayer? (2) Is the suit barred by limitation? (3) Has the plaintiff any cause of action? (4) Has the plaintiff right, title and interest over the 'Ka' schedule land? (5) Is there any bonafide mistake in the deed of gift dated 14.07.1973 regarding plot No.1481 which is purportedly written as 1581? (6) Is the plaintiff entitled to get relief what he has prayed for? (7) To what other relief, if any, is the plaintiff entitled?

(3.) During trial both the parties adduced oral as well as documentary evidence and the deed of gift was also marked as (Ext.3), on proof without objection. Learned Trial Court decreed the suit in favour of the plaintiff. However, learned First Appellate Court allowed the appeal by way of reversing the judgment and decree of learned Trial Court only on the ground that the deed of gift (Ext.3) as produced during evidence did not bear signature of at least two attesting witnesses as per requirements of Section 123 of T. P. Act and that the same did not also bear the certificate of registration and its number in the registered book as required under Section 60 61 of the Registration Act. According to learned Appellate Court deed of gift was not valid for those defects and that plaintiff did not get any title on the strength of the said deed of gift. Learned Appellate Court, however, did not discuss any other point or issue.