SUSHIL KUMAR GAYEN Vs. JANJALI GAYEN

JUDGEMENT

(1.) This second appeal is preferred by the plaintiffs-appellants against the judgment and decree dated April 22, 1996 passed by the learned Assistant District Judge, Diamond Harbour in Title Appeal No. 77 of 1994, affirming the judgment dated February 25, 1994 and the decree dated April 19, 1994 passed by the learned Subordinate Judge, First Court of Diamond Harbour dismissing the Title Suit No. 149 of 1992. The plaintiffs filed the title suit, claiming a declaration of their title in respect of the suit property, measuring about 46 decimals of land at plot nos. 5801 and 2881, under Khatian Nos. 2940 and 2622, respectively of Mouza Kautala, under P.S. Raidighi within the District of South 24 Parganas, (hereinafter called "the suit property) and a decree for permanent injunction against the defendant. For convenience, the parties are hereinafter referred to by their array in the trial Court.

(2.) As per the plaint case, the father of the plaintiffs, Gopal Gayen (hereinafter referred to as "Gopal"), by a deed of gift dated June 06, 1986, transferred the suit property to them, they accepted the said gift and obtained possession of the suit property from Gopal. The plaintiffs further claimed to be in adverse possession of the suit property. The plaintiffs alleged that the defendant has no title in respect of the suit property nor is she in possession of the suit property but, the defendant had been threatening them to disturb their right, title and possession in respect of the suit property.

(3.) The defendant contested the title suit. In the written statement, the defendant claimed to be the wife of the eldest brother of the plaintiffs Anil, who deserted her and married another lady. The defendant further claimed that her father-in-law, Gopal executed and registered a deed of gift on July 18, 1986 and transferred the suit property together with some other plots of land to her. After acceptance of the said gift from Gopal, the suit property together with some other plots of land are in her possession by cultivation in khas. She has converted a portion of the suit property from agricultural land to non-agricultural land. The defendant specifically disputed the execution of the said deed of gift dated June 06, 1986 by Gopal in favour of the plaintiffs. The defendant further alleged that in the year 1987, Gopal in collusion with his sons filed a suit against her, in the Diamond Harbour Court, which was renumbered as Title Suit No. 58 of 1992 and challenged the said deed of gift executed in her favour on July 18, 1986. She contested the said suit; in his judgment dated May 25, 1992 passed in the said Title Suit No. 58 of 1992 the learned Additional Munsif, Diamond Harbour held that in his evidence, Gopal, admitted to have executed the said deed of gift in her favour, and that he subsequently, purchased a portion of the gifted land from her for valuable consideration and that the remaining portion of the land (which includes the suit property in this case) is in her possession. The defendant further alleged that the deed of gift dated June 06, 1986 relied upon by the plaintiffs is fictitious, the said deed of gift had neither been duly attested nor was the same accepted by the plaintiffs and said gift was never acted upon.