RANA & 2 OTHERS Vs. AJIJUNNESSA & OTHERS

JUDGEMENT

(1.) Heard Ms. P. Chakraborty, learned counsel appearing for the appellant. Also heard Mr. A. Ikbal, learned counsel representing the respondents.

(2.) This Second Appeal has been filed challenging the concurrent judgment and decree dated 08.06.2006 passed by the learned Civil Judge (Senior Division), Nagaon in Title Appeal No.52/2003 dismissing the said appeal and affirming the judgment and decree dated 11.09.2003 passed in Title Suit No.32/2005 whereby the suit filed by the plaintiffs/respondent Nos.1 to 3 was dismissed.

(3.) The brief facts of the case is that the plaintiff Nos.1, 2 and 3 had filed Title Suit No.32/1995 in the Court of Civil Judge (Junior Division) No.1, Nagaon, inter alia, seeking a declaration that the registered deed of gift bearing No.1541 dated 25.08.1993 be declared fraudulent, illegal and null and void and for cancellation of the same together with the prayer for the consequential relief of permanent injunction and recovery of khas possession of the gifted property. The plaintiff Nos.1 to 3 and the proforma defendant Nos.6 to 9 were originally the owners of a plot of land measuring 11 lechas covered by dag No.1321 of P.P. No.640 under Nagaon Town Kissam which is the suit land. The said plot of land measuring 11 lechas was originally under the possession of the plaintiff Nos.1 to 3 as well as the proforma defendant Nos.6 to 9. The defendant No.1 is the step sister of the plaintiffs and is married to the defendant No.2. It has been alleged in the plaint that the defendant Nos.1 and 2 by practicing fraud had got the registered deed of gift bearing No.1541 dated 25.08.1993 executed by the plaintiffs as well as the proforma defendant Nos.6 to 9 gifting the suit land to the defendant No.1 in the pretext of creating a mortgage for obtaining loan from the Bank for the purpose of carrying out permanent construction over the land. Since the plaintiffs are illiterate persons and were interested in obtaining a loan from the Bank for construction of their house over the suit land, which is their inherited property, they had agreed to put their signatures in the document bona fide believing that such an action would entitle them to secure the loan for construction of the house. After execution of the instrument, since the defendant No.2 was dilly dallying in the matter, hence, the plaintiffs as well as the proforma defendant Nos.6, 7 and 8 had requested the defendant Nos.1 and 2 to expedite the loan process. However, it was from the proceedings of another case that the plaintiffs could come to know for the first time regarding the execution of the aforementioned deed of gift in favour of the defendant No.1. It was only after obtaining the certified copy of the deed of gift that the plaintiffs as well as the proforma defendant Nos.6 to 8 could find out about the registration of the purported gift deed although they had never gifted the land to the defendant No.1 by receiving "Tasbis" of "Holy Koran". The plaintiffs have also stated that they had never delivered the possession of the suit property to the defendant No.1 and the plaintiff No.1 had been running a tailor shop over the said plot of land.