GOLAP BORAH Vs. KORNESWAR BORAH

JUDGEMENT

(1.) RSA No.129/2002 has been filed by the appellants challenging the judgment and decree dated 26.04.2002 passed by the learned Civil Judge (Senior Division), Lakhimpur, at North Lakhimpur in Title Appeal No.2/1999 thereby reversing the judgment and decree dated 12.07.1999 passed by the learned Civil Judge (Junior Division), Lakhimpur at North Lakhimpur in Title Suit No.2/1998 dismissing the counter-claim of the respondent/defendant No.1 . RSA No.1/2003 has been preferred by the appellants against the judgment and decree dated 26.04.2002 passed by the learned Civil Judge (Senior Division), Lakhimpur, at North Lakhimpur in Title Appeal No.3/1999 dismissing the appeal thereby affirming the judgment and decree dated 12.07.1999 passed by the learned Civil Judge (Junior Division), Lakhimpur, at North Lakhimpur in Title Suit No.2/1998 whereby the suit of the appellants/plaintiffs had been dismissed. Since both the Second Appeals arises from Title Suit No.2/1998 wherein the present appellants were the plaintiffs and the respondent No.1/defendant No.1 was the defendant No 1/ counter-claimant and having regard to the fact that common questions of law arises for adjudication in both the Second Appeals, hence I propose to dispose of RSA No.129/2002 as well as RSA No.1/2003 by this common judgment.

(2.) The plaintiffs/appellants case, in brief, is that the plaintiff Nos.1 and 2 as well as the defendant No.2/respondent No.2 are the sons of Late Rashram Borah. The proforma defendant Numali Borah alias Baruah is the married daughter of Late Rashram Borah. The defendant No.1/respondent No.1 is the son of the defendant No.2/respondent No.2. The suit land described in the plaint originally belonged to Rashram Borah forming a part and parcel of the land and property owned and possessed by him. On 24.06.1962 Late Rashram Borah had affected a partition of his moveable and immoveable properties amongst his three sons i.e. the plaintiffs and the defendant No.2 whereby the entire property was divided into four parts. One part each went to both the plaintiffs and the defendant No.2 whereas Rasharam Borah retained the fourth part for his own benefit. In order to honour the aforesaid partition, Rasharam Borah had even started living at Sumanibari by constructing a new house thereat wherein he used to stay with his wife and the defendant No.1 i.e. his grandson. Rasharam Borah died in the year 1975. After the death of Rasharam Borah, as per his wishes expressed during the lifetime the share held by Rashram Borah was amicably partitioned amongst his three sons i.e. plaintiff Nos.1, 2 and the defendant No.2. However, while the plaintiffs were enjoying the possession of their share of the land pursuant to the amicable partition between the three brothers, the defendant No.1 without the knowledge of the plaintiffs had attempted to get his name mutated in respect of the land described in Schedule-A & B to the plaint, being the land falling in the share of Rasharam Borah. However, on the face of objection raised by the plaintiffs, the Deputy Commissioner, Lakhimpur had passed an order dated 29.03.1996 in Misc. Case No.9/1993 directing the parties to maintain status quo in respect of the old recorded mutation. It is the case of the plaintiffs that the defendant No.1 had also filed a proceeding under Section 145 of the Cr.P.C. vide Misc. Case No.159/1994 in which proceeding the defendant No.1 had disclosed that on 12.04.1975 Rasharam Borah had executed a gift deed in his favour gifting away the Schedule-A & B land to the defendant No.1. Asserting that Late Rashram Borah had never executed any gift deed in favour of the defendant No.1 and that the said defendant No.1 was never in possession of the Schedule-A & B land, the plaintiffs had instituted Title Suit No.2/1998 in the Court of Civil Judge (Junior Division), Lakhimpur, inter alia, praying for a decree declaring the right, title and interest of the plaintiffs in respect of the suit land as well as for confirmation of possession. In the aforesaid suit the appellants/plaintiffs had also prayed for cancellation of the registered deed of gift bearing No.810/75 dated 12.04.1975 on the ground that the same was invalid, void and inoperative in the eye of law.

(3.) The defendant Nos.1 and 2 contested the suit by filing a joint written statement-cum-counter - claim urging that there was no cause of action for the suit and that the same was not maintainable in law as well as in facts. The contesting defendants had also urged that the plaintiff's suit was barred by law of limitation. In their written statement, the said defendants, while admitting the fact of partition of the properties of Late Rasharam Borah on 24.06.1962, asserted that pursuant to such partition Late Rashram Borah had separated himself from the plaintiffs as well as the defendant No.2 but the defendant No.1 being his grandson continued to live with Rasharam Borah and his wife. The defendant No.1 used to look after his grandparents very well and, therefore, they also used to treat him like their own son. Being highly satisfied with the services rendered by the defendant No.1, Late Rashram Borah, during his lifetime, had gifted away his entire share of land to the defendant No.1, out of love and affection, by means of the registered deed of gift dated 12.04.1975 and the gift was also accepted by the defendant No.1. Since then the defendant No.1 has been in possession of the suit land and his name has also been mutated in the land records based on such deed of gift and his possession. The contesting defendants had also denied that Late Rasharam Borah had ever advised his sons to partition his share of land amongst themselves after his death. On such basis the contesting defendants while praying for dismissal of the plaintiffs' suit had also made a counterclaim for passing a decree declaring their right, title and interest over the land based on the registered deed of gift dated 12.04.1975 and also for confirmation of possession in respect of the land covered by dag No.447; alternately, a decree for recovery of khas possession of the land if the same is found not to be in possession of the defendant No.1.