MD. RAHMAT ALI, S/O MD. HAFIZATDDIN Vs. MD. SAYEEDUR RAHMAN, S/O LATE TALEB ALI, BILLAGE FESUWAL, MOUZA GHILADHAR, P.O. BARUAGAON, DIST

JUDGEMENT

(1.) First appellate judgment and decree dated 27.02.2006 passed by learned Civil Judge (Sr. Divn.), Golaghat in Title Appeal No. 5/2005 has been called in question in the present second appeal by the defendants. Plaintiff's suit for declaration of right, title and interest and for recovery of khas possession was dismissed by the learned trial court on 31.05.2005 in Title Suit No. 2/2003. However, the learned first appellate court reversed the findings of the learned trial court and by the impugned judgment and decree dated 27.02.2006 as referred to above, decreed the suit of the plaintiff declaring the right, title and interest of the plaintiff and also for recovery of khas possession by evicting the defendants.

(2.) The facts involved in the second appeal are simple. The sole respondent, as plaintiff, instituted title suit No. 2/2003 in the court of learned Civil Judge (Jr. Divn.) at Golaghat. According to the plaintiff, the defendant No. 1 is his son-in-law and defendant No. 2 is his daughter. The defendant No. 1 had dispute with his brothers in regard to paternal properties and so out of love and affection and for sympathy he permitted defendants to live on 5L of land along with katcha house standing thereon measuring 26' x 27' over dag No. 92 and PP No. 127 of village Fesualgaon under Ghiladhar Mouza in the district of Golaghat. The defendants were supposed to vacate the suit land as and when asked but they refused to do so when they were asked to leave the suit land. They rather started claiming that the land had been gifted to them by the plaintiff. It is stated in the plaint that, the plaintiff did never make any gift in favour of the defendants and so there was no reason for the defendants to make such a claim. With these prayers, plaintiff instituted the suit for declaration of right, title and interest in respect of the suit property and for recovery of khas possession by evicting the defendants. The suit property has been described as a plot of land measuring 4/5 Rs.covered by dag No. 92 and PP No. 127 at village Fesuelgaon under Mouza Ghiladhar in the district of Golaghat and a house measuring 26' x 27' standing thereon.

(3.) On being summoned, the defendants No. 1 and 2 appeared and submitted a joint written statement whereas defendants No. 3 and 4 did not appear and did not contest the suit. According to the contesting defendants No. 1 and 2, the plaintiff himself being aware of dispute among the brothers of the defendant No. 1 wherein defendant No. 1 was badly assaulted by his younger brother resulting in bodily injuries, the plaintiff came to village Fesuelgaon in the month of April, 1995, and donated land measuring 1K 10L including suit land to his daughter, the defendant No. 2. The defendant No. 2 was asked to construct house and to live on the suit land on assertion of their own right on the basis of the gift and accordingly they made construction and started living without any let or hindrance from any quarter. But subsequently the plaintiff might have changed his mind but for which notice was issued to them for vacating the suit land. According to the defendants, the suit of the plaintiff being based on incorrect statements, the same is liable to be dismissed along with compensatory cost.