RANA AND ORS. Vs. AJIJUNNESSA AND ORS.

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 defendant No. 1 contested the suit by filing her written statement questioning the maintainability of the suit by taking the formal plea of want of cause of action; suit being barred by principles of res judicata etc. The defendant No. 1 has also categorically denied the averment made in the plaint to the effect that the plaintiffs and the proforma defendant Nos. 6 & 9 had never gifted the suit land to the defendant No. 1 or that the possession in respect of the said property was never delivered to the defendant No. 1. The contesting defendant has also pleaded that pursuant to execution of the gift deed she had also accepted the gift in presence of witnesses and since then she has been possessing the suit land and has been using the said land for residential purpose by removing all existing constructions standing thereon. It is also the pleaded stand of the defendant No. 1 that on the strength of the registered deed of gift as well as her possession over the land, the name of the defendant No. 1 has also been mutated in the revenue records as well as in the Municipal record by assigning holding number in favour of the defendant No. 1. She has also categorically stated that earlier one Abdul Kashem had filed Title Suit No. 52/.1993 against the defendant No. 1 as well as the plaintiffs challenging the registered deed of gift dated 25.08.1993. In the said suit present plaintiffs were made parties as defendant Nos. 3, 5 and 6 whereas the defendant No. 1 was impleaded as the defendant No. 7. After trial of Title Suit No. 52/1993 the Court had rejected the prayer made in the suit by holding that the registered deed of gift was a valid instrument. It has also been stated that during the course of trial of Title Suit No. 52/1993 the present plaintiffs had deposed before the trial Court admitting the fact that the suit land and house was in the possession of the present defendant No. 1 and also supported the stand of the defendant No. 1 that the gift deed was a valid one.