MD. HESABUDDIN Vs. MD. HESARUDDIN

JUDGEMENT

(1.) THIS appeal arises from the judgment and decree passed by the learned Assistant District Judge, Goalpara, Dhubri in Title Appeal No. 66 of 1975 dismissing the appeal and affirming the judgment and decree passed by learned Munsiff, Goalpara in Title Suit No. 160/71 dismissing the suit. The suit is for declaration of title and delivery of khas possession on partition of the suit land.

(2.) GENDE Bibi died leaving the three plaintiffs and four defendants in the suit, own brothers and sisters as her legal heirs with respect to the suit property consisting in 7 and odd bighas of land as described in the plaint schedule. It is the case of the plaintiffs that on the death of their mother Gende Bibi, the plaintiffs and defendants made an amicable partition of the suit property and each started possessing his/her share of the property but defendant No. 3 Serajuddin surreptitiously got the entire land recorded in his name in the revenue records and has been trying to dispossess the plaintiffs from their portions of the suit land. Hence the suit for declaration of title to the suit land and partition of it in 1/7th share thereof for each of the legal heirs and for separate possession of each. The 4 defendants filed a joint written statement denying all these allegations. It is admitted that all the plaintiffs and the defendants are legal heirs of late Gende Bibi and that the suit property belonged to Gende Bibi. It is the defence case that prior to her death Gende Bibi gifted away the entire suit property in favour of the 3rd defendant alone in accordance with the provisions of the Mahomedan Law in that behalf. Thereafter, the third defendant got the land mutated in his own name and he has been possessing the suit land on his own account. On the pleadings of the parties learned trial Court struck the following issues for decision:

(3.) NOW it is to be seen whether Ext. A (2) deed itself created any right, title and interest in favour of the 3rd defendant-respondent. Ext. A (2) was written in an unstamped sheet of ordinary paper. It is dated 15-7-65 B. S. The recitals are that by this deed executant Gmde Bibi makes a gift of the land measuring 7 bighas 1 katha 19 leehas under khatian No. 49 of Mooza Bhatipara in favour of her son Serajuddin Sheikh and that her son Serajuddin was maintaining her and that no other son or daughter of hers was taking care of her and that she was living with Serajuddin. Three persons, namely, Abdul Hamid, Jayanuddin, and Ali Hussain attested the document as witnesses. Gende Bibi executed the deed by putting her thumb impression on the deed.