NARENDRA CHANDRA ROY Vs. MANJULA BALA ROY

JUDGEMENT

(1.) This first appeal has been preferred by the defendant of Title Suit No. 20/2007 of the Court of learned Civil Judge, Bongaigaon challenging the judgment and decree dated 04.06.2009 passed therein declaring right, title and interest of the plaintiff over the suit land and for recovery of khas possession by evicting the defendant.

(2.) The facts involved in the appeal are required to be stated at the threshold. One Manjula Bala Roy, as plaintiff, instituted Title Suit No. 20/2007 in the court of learned Civil Judge, Bongaigaon stating that three plots of land covered by Dag No. 1961, 1161 and 1169 pertaining to khatian No. 416 of Bangaigaon Town Ward No. 3 under Bongaigaon Revenue Circle originally belonged to Amani Bala Roy. Dag No. 1961 and Dag No. 1161 measured 2 bighas each and Dag No. 1169 measured 3 K 3 L in all. It is stated that Amani Bala Roy died leaving behind her only son Jaleswar Roy, the father of the plaintiff. Jaleswar died when the plaintiff was a student of Class-VIII in Barshamgaon High School and she being the only legal heir of Jaleswar Roy became owner of the property described in schedule to the plaint. She further stated that the defendant who is none other than a friend of his father requested her to stay in the suit land posing to be well wisher and good friend and accordingly she permitted him to stay in her land. In the month of February, 1994 this defendant took her to the Office of the Sub-Registrar in the pretext of execution and registration of a power of attorney stating that it would be necessary for mutation of her paternal property in her name and in this regard she signed some documents in good faith. Thereafter in the year 1996, again the same defendant took her to the Office of the Sub-Registrar in the pretext of execution and registration of another deed being the Deed of Power of Attorney for correction of some mistakes in the previously executed deed. At that time also she did not have any reason to disbelieve him and accordingly singed on the dotted line. However, all along she was staying on the suit land but following her marriage in the year 1997, she initially started living at her matrimonial house but in 2002, she came back with her husband and children and started staying at the suit land. In the month of January, 2006 plaintiff stated to have requested the defendant to part with necessary land documents of the suit land but the latter went on dillydallying. Ultimately, on 22.01.2007, the defendant finally denied to hand over the documents whereupon she enquired in the Office of the Sub-Registrar at Bongaigaon and thereupon came to know that the deed executed by her in 1994 was not at all a Deed of Power of Attorney but was actually a gift deed in favour of the defendant. Similarly, the deed executed and registered by her in the year 1996 was a sale deed in favour of the same defendant. The gift deed dated 02.02.1994 and the sale deed dated 12.01.1996 have been mentioned at Schedule B to the plaint whereas the suit land has been described in Schedule A to the plaint. According to the plaintiff, she did neither execute a gift deed nor did she execute any sale deed in favour of the defendant and these two documents are vitiated by fraud. With these statements of facts, she prayed that a decree be passed declaring her right, title and interest over the suit land described in Schedule A to the plaint and also for a declaration that the defendant does not have any right, title and interest on the basis of deeds mentioned in Schedule B. She also made a prayer for declaration that the aforesaid deeds described in Schedule B to the plaint are illegal, fraudulent and void ab-initio and prayed for decree for khas possession by evicting the defendant from the suit land.

(3.) On being notified, the sole defendant appeared and submitted written statement and he disclosed that the averments made in the plaint in regard to his identity and status are out and out misleading and incorrect. He stated that original owner Amani Bala Roy had as many as 5 (five) legal heirs, namely, late Lunduri Barman (married daughter), late Bhunduri Barman (married daughter), late Shashin alias Sushil Roy (son) who is father of defendant, late Jaleswar Roy (son) who is father of the plaintiff and Smt. Moukhai (married daughter). Thus, the averments made in the plaint that Jaleswar Roy was the only legal heir of deceased Amani Bala Roy and that defendant was merely a friend of Jaleswar Roy were incorrect. The defendant claimed to be the son of the own paternal uncle of the plaintiff. He further disclosed that after death of Jaleswar on 11.07.1972, his wife who is the mother of the plaintiff, had married one Dwipen Barua alias Kala in the year 1974 and thereafter she went to her matrimonial house at Jelkajhar taking the plaintiff with her. However, subsequently one Ratneswar Roy, an elderly member and family relation of Amani Bala Roy intervened through a family settlement for not depriving the plaintiff from her paternal property whereupon it is decided that the plaintiff would be given her paternal property who on turn would also hand over the legal dues of the defendant by executing gift deed and sale deed for 2B 3K 3L of land after attaining majority. This is because during the life time of Jaleswar he had obtained a gift deed from original owner Amani Bala Roy by depriving the father of the defendant and other legal heirs. It is further stated that pursuant to such decision the defendant ultimately executed a registered gift deed No. 82 on 02.02.1994 with respect to 2B 3K 3L of land in favour of the defendant. It is further stated in paragraph 9 of the written statement that the plaintiff had been executing one sale deed after another and realising money from the purchasers to meet her needs. As many as 7 sale deeds said to have been executed by the plaintiff were mentioned in this paragraph. It was stated that registered sale deed No. 648 dated 15.05.1990 was executed by the plaintiff for 17L of land in favour of one Ramesh Ch. Chakraborty. Another registered sale deed No. 278 dated 18.12.1992 was executed by the plaintiff in favour of Sri Ramkishore Roy for 2B 2K 10L. She executed registered sale deed No. 39 dated 18.01.1994 for 2B 2K 10L in favour of Sri Pradeep Sarkar. On 12.01.1996 she executed another registered sale deed No. 39 dated 12.01.1996 in favour of Tarani Kanta Roy for 2B of land and in between on 02.02.1994 and on 12.01.1996 she executed two documents in favour of the defendant being registered document No. 82 and 38 respectively. With these averments, the defendant claimed that the claim of the plaintiff of not executing gift deed in the year 1994 and sale deed in the year 1996 are incorrect. The grounds stated in the plaint by the plaintiff that she was minor as on the date of execution of these deeds and that she was not aware of the execution were also denied being incorrect and fabricated. The defendant prayed that the suit be dismissed with cost.