SUFIA KHATUN Vs. BHOIMUDDIN SHEIKH MD ALIAS AHMED

JUDGEMENT

(1.) THIS appeal by the plaintiffs, is directed against the judgment and decree dated 07.06.2000 passed by the learned Civil Judge (Sr. Division), Darrang, in Title Appeal No. 5/1998, allowing the appeal preferred by the present respondents/defendants by setting aside the judgment and decree dated 28.01.1998 passed by the learned Civil Judge (Jr. Division) No. 2, Mangaldoi, Darrang, in Title Suit No. 55/1981, whereby and whereunder, the suit of the plaintiffs was decreed.

(2.) THE plaintiffs/appellants instituted the Title Suit No. 55/1981 in the Court of the learned Civil Judge (Jr. Division) No. 2, praying for a decree for declaration of right, title, interest and confirmation of possession as well as for declaration that a gift deed dated 14.10.1980 allegedly executed by Haji Eba Sheikh in favour of the respondents/defendants is fraudulent, void and inoperative, contending inter alia that out of 21 bighas 15 lechas of land belonging to Haji Eba Sheikh, the grand-father of the plaintiff Nos. 1, 2 and 3, 15 bighas 15 lechas of land in different Dags in Patta Nos. 19 (old) and 13 (new) of village- Ghopeli, Mouja - Dipila, in the District - Darrang, was sold by him to the plaintiff Nos. 1, 2 and 3 by a registered deed of sale dated 26.07.1976 (Ext. -1), which land was kept by him after giving respective shares to other sons, namely, the defendants. According to the plaintiffs, they were put in the possession of the land after such sale. It is also the case of the plaintiffs that the defendant Nos. 1 and 2 by strength of a gift deed dated 14.10.1980 (Ext.- Ka) allegedly executed by Haji Eba Sheikh, their father, is claiming the right, title and interest over the land and on 03.01.1981 tried to disposses the plaintiffs from the land, however, without any success. It is also the pleaded case of the plaintiffs that though an order of status quo was passed by the High Court in the revision petition filed, arising out of an application filed under Order 39, Rules 1 and 2 of the Code of Civil Procedure, as the defendants dispossessed them after passing of such order, an application under Section 145 CrPC was filed apprehending breach of peace, wherein an order of attachment under Section 146 CrPC was passed by the learned Executive Magistrate, who consequently vide order dated 30.04.1986 passed in Misc. Case No. 392/1982 declared the possession of the disputed land in favour of the plaintiffs and accordingly the plaintiffs were put back into possession. THE plaintiffs, therefore, filed the suit praying for the decree as aforesaid. THE plaintiffs, however, afterwards filed an application under Order 6, Rule 17 of the CPC for amendment of the prayer in the plaint to the effect that in case the plaintiffs are not found to be in possession then the decree for recovery of khash possession is to be passed. Such prayer for amendment was allowed.

(3.) THE plaintiffs in order to substantiate their plea taken in the plaint has examined 4(four) witnesses and proved a number of documents including the sale deed dated 26.07.1976 (Ext.-1). THE defendants have also examined 3(three) witnesses in support of their pleadings in the written statement and also proved a number of documents including the gift deed dated 14.10.1980 (Ext.- Ka). THE witnesses were duly cross-examined by the respective parties.