GOURISH BANIK Vs. ARATI BANIK

JUDGEMENT

(1.) This appeal by the plaintiffs is directed against the judgment and decree dated 30.06.2001 passed by the learned District Judge, Karimganj in Title Appeal No.2/1999, dismissing the appeal by upholding the judgment and decree dated 27.09.1999 passed in Title Suit No.35/1984 by the learned Civil Judge (Senior Division), Karimganj, whereby and whereunder the plaintiffs' suit was dismissed.

(2.) The plaintiffs instituted the aforesaid suit prayed for declaration that the land covered by settlement survey Dag Nos.5247, 5248 and 5249, Decennial Mahal Taluk Aladal Taluk No.14886/197 and Afzal Taluk No.14779/90 in Karimganj Town, in the District and PSKarimganj, with the boundary given in the schedule to the plaint, as joint family properties of the plaintiffs; for declaration that three gift deeds dated 11.02.1983 (Ext.-A), 11.02.1983 (Ext.-B) and 15.06.1983 (Ext.-C), executed by Ramesh Chandra Banik in favour of Sambhu Nath Banik, Sushil Kumar Banik and Renu Bala Banik, the defendant Nos.1, 2 and 3, respectively, are fake, fraudulent and inoperative and also for recovery of khas possession of the land measuring 211/4 cubits X 41/4 cubits as mentioned in the said schedule, upon eviction of the defendants and also for confirmation of possession in respect of the remaining land of their, being 1/5 th share of the suit land. It was contended in the plaint that Radha Ballav Banik, the father of the plaintiffs and proforma defendant No.7 and father-in-law of the defendant No.3, purchased the suit land by Exts.-1 and 2 sale deeds, both dated 11.11.1938, which property, after the death of their father in the year 1944 devolved on them and was looked after by the eldest son, namely, Ramesh Chandra Banik, husband of the defendant No.3 being the Karta, who, however, before his death in the year 1983 executed the aforesaid three gift deeds (Exts.-A, B and C in favour of the defendant Nos.1, 2 and 3, respectively), though the plaintiffs are entitled to their share over the suit land, the same being the ancestral property. In the plaint it has been contended that the plaintiffs could know about the execution of the said registered deeds of gift on 22.08.1984. During pendency of the suit the plaintiffs filed application seeking amendment of the pleadings in the plaint, which was allowed vide order dated 26.11.1987. By such amendment the prayer for the declaration that the plaintiffs have preferential right to purchase, as envisaged by Section 22 of the Hindu Succession Act, 1956, the property which was transferred by way of the aforesaid gift deeds.

(3.) The defendant Nos.1, 2 and 3 have filed their joint written statement. In the written statement, though they have denied the contention of the plaintiffs that the suit property was the self acquired property of Radha Ballav Banik, their predecessor-in-interest, in paragraph 13 the defendants, however, have admitted that the suit land belonged to Radha Ballav Banik, their predecessor-in-interest. The defendants further have pleaded that the suit land, however, fell in the share of Ramesh Chandra Banik, the eldest son of Radha Ballav Banik, by virtue of amicable partition and thereafter Ramesh Chandra Banik gifted the suit land in favour of the defendant Nos.1, 2 and 3 by executing the registered deeds of gift being Exts.-A, B and C.