BIREN DAS Vs. RAM SUNDAR DAS AND ORS.

JUDGEMENT

(1.) HEARD Mr. C. Boruah, learned senior counsel appearing for the appellants. Also heard Mr. G.N. Sahewalla, learned senior counsel appearing for the respondents.

(2.) THE second appeal RSA No. 26/2010 is directed against the judgment and decree dated 20.06.2009, passed by the Civil Judge, Dibrugarh in Title Appeal No. 53/2006 preferred against the judgment and decree dated 31.08.2006 passed by the Civil Judge, (Junior Division) Dibrugarh in Title Suit No. 101/2005, thereby dismissing the counter -claim filed by the appellant/defendant.

(3.) THE factual matrix of the case as emerging from the record is that one Gourai Das was the original owner of a plot of land, measuring 2 bighas 3 kathas 4 lechas covered by Dag No. 71 and Patta No. 71 of Dibrugarh town, Mouza -Dibrugarh. Gouri Das Dhobi died leaving behind her husband Deoraj Das, 3(three) sonsm viz., Ram Sundar Das, Rajen Das and Biren Das as well as 4(four) daughters viz, Smti. Chansari Devi, Alodhaney Devi, Muneswari Devi and Motikunja Devi as her legal heirs. Ram Sundor Das and Rajen Das being the 2(two) sons of Gouri Das had instituted the Title Suit No. 101/2005 in the Court of Civil Judge, (Junior Division), Dibrugarh, inter alia praying for decree for determining their individual share over the ancestral land by effecting a partition of the land in question and thereafter, passed a final decree in terms thereof. The plaintiffs have claimed that each of them being the legal heirs of Gouri Das, was entitled to 1/3 share in the suit land since the sisters had relinquished their claim over the land and in view of the fact that Deoraj Das had already gifted his share in the undivided property in favour of his 2(two) grandsons, namely, Jaigopal Das, Prahalad Das. It was also their case that Deoraj Das during his life time had constructed a lodge in the name and style "Gouri Lodge" from his own income and, therefore, the plaintiff and defendant being his sons were entitled to and was infect enjoying the said property. However, the defendant No. 1 slowly took over the property and the possession of Gouri Lodge and started running the same for his personal benefit. The plaintiff asked for a compromise, but the defendant declined the said proposal.