MALA BARUAH NEOG Vs. DIPALI BARUAH AND ORS.

JUDGEMENT

(1.) THE judgment and decree dated 13.7.2006 passed by the learned Additional District Judge, Nagaon in Title Suit No. 64 of 2001 has been called in question in the present first appeal. The suit was decreed by the learned trial court in entirety. The principal defendant No. 1, who had been contesting the suit all along became aggrieved thereby and has preferred this first appeal.

(2.) THE case of the plaintiff was that one Dinai Christian (Burmij) was original owner of land measuring 4 katha 11 lechas covered by Dag No. 314 and 315 of periodic patta No. 153 situated at Kachalukhowa Kissam under Nagaon town along with a house standing thereon. He gifted whole of the land to his wife Joymoni Christian by a registered gift deed in the year 1951. The donee Joymoni Christian on turn sold 1 katha of land out of the entire land to one Sri Nath Khan and retained 3 katha 11 lechas under her title and possession. She died leaving behind two sons, Mikhail Burmij and Babul Burmij and one daughter Smti Bhagya Borua who got married to one Khagen Baruah, a Hindu. The other son Mikhail Burmij also in the year 1987 unmarried and according to the plaintiff, thus, he became the sole owner of 3 katha 11 lechas of land as Bhagya Borua became a Hindu and so did not inherit any right, title and interest to the ancestral land. Bhagya Borua died leaving behind three daughters, namely, Mala, Dipali and Seema and one son, Naba Borua. Naba Borua died unmarried, thus, three daughters, Mala, Dipali and Seema became her legal heirs. This Mala is none other than the principal defendant No. 1 in this case whereas, the other two daughters, Dipali and Seema became Plaintiff Nos. 2 and 3 along with Babul Burmij as plaintiff No. 1. The plaintiff stated that out of love and affection at the time the suit was instituted, Naba Borua was living and he was arraigned as Plaintiff No. 4 therein. He subsequently, having died during pendency of the suit, his name was struck out and the suit was maintained by the three plaintiffs, namely, Plaintiff Nos. 1, 2 and 3. It was the case of the plaintiff that out of love and affection plaintiff No. 1 gifted 1 katha of land to defendant No. 1, Mala on 18.12.1996 and handed over the possession. The other land measuring 2 kathas 11 lechas was jointly owned and possessed by plaintiffs at that time when Babul Burmij, Plaintiff No. 1 intended to make gift of the remaining 2 katha 11 lechas of land in favour of Dipali and Seema, Plaintiff Nos. 2 and 3. He engaged defendant No. 1, Mala to make necessary preparation. But defendant No. 1 fraudulently prepared the gift deed in her own name and got the same executed by Plaintiff No. 1 on 5.1.2000. The possession remained jointly with the plaintiffs as Mala was married to one Manju Neog another Hindu and was living in Nagaon in her matrimonial house. But subsequently, when she wanted to get the possession, the dispute between the parties started which necessitated filing of the Title Suit for declaration that subsequent gift deed No. 61 of 2000 executed on 5.1.2000 was never executed by plaintiff No. 1 and it being a fraudulent one no title flew to the principal defendant No. 1. It was also prayed that joint title of plaintiffs be declared on the whole of 2 kathas 11 lechas described in Schedule -A and B to the plaint.

(3.) ON the rival contention of the parties, the learned trial court framed as many as six issues and the same are quoted below: