SK ISSAC Vs. JALIKHA BIBI

JUDGEMENT

(1.) The unsuccessful defendant No. 1 in this appeal has challenged the judgment and decree passed by the learned Civil Judge (Senior Division), Cuttack in Title Suit No. 100 of 1995 decreeing the suit of the plaintiff-respondent No. 1 preliminarily allotting to Ac.0.038 decimals of land to her firm out of the suit land better described in the schedule of the plaint.

(2.) For the sake of convenience, clarity and in order to avoid confusion, the parties hereinafter have been referred to as they have been arrayed in the court below.

(3.) The defendant No. 1 filed a separate written statement whereas defendant No. 2 to 5 jointly filed their written statement. Defendant No. 1 attacked the suit s maintainability and that to be bad in law due to filing of a prior suit No. 224 of 1994 in the court of Civil Judge (Jr. Division),1st Court, Cuttack and the present suit s filing during its pendency. It is his case that Sultan Khan was permitted by plaintiff s father to remain in a room as a monthly tenant and he continued to stay there after marriage with the plaintiff on payment of monthly rent. It has been admitted that due to dispute between him and the plaintiff, there was a decision in the Panchayat on 10.02.1988 with the consent of the parties as per the said decision. The plaintiff s entitlement was settled at Ac. 0.013 decimals. Thereafter, defendant no. 2 to 5, the children of Hasina Biwi agreed to sale their share of Ac. 0.013 decimals to defendant No. 1. So, there was an agreement to that effect fixing the sale price and handing over the possession of the suit land to the defendant No. 1. It is further stated that Sk. Mustak died in the house of defendant No. 1 and there was never any oral gift (Hibba) by him as pleaded in respect of Ac.0.25 decimals of land. It is asserted that defendant No. 2 is in possession of Sk. Mustak land of Ac. 0.025 decimals. The theory of gift as projected by the plaintiff has been said to completely false and the documents in that regard is attacked as to have been fraudulently created. The factum of possession pleaded by the plaintiff by raising boundary wall etc. is also denied. With all these, the defendant No. 1 prayed to non-suit the plaintiff in respect of specific prayer claiming Ac. 0.038 decimals of land for being allotted to her.