KHRUSHED ALI Vs. ALTAB ALI

JUDGEMENT

(1.) THE appellant as plaintiff instituted Title Suit No. 90 ofl995 in the Court of the learned Civil Judge (Jr. Division), No. 1 at Nagaon against the present respondents as defendants praying for a decree declaring the right, title and interest in respect 'Ka' schedule land, confirmation of possession in respect of 'Kha' schedule land, which is part of the 'Ka' schedule land and recovery of khas possession in respect of 'Ga' schedule land, which is also a part of the 'Ka' schedule land, by evicting the respondents/defendants therefrom contending inter alia that his paternal grand father Osman Seikh Bepari, who was the absolute owner of the 'Ka' schedule land gifted the said land measuring 6 Bighas by executing a registered deed of gift on 20.04.1960 as his father has died. It has further been contended that at the request of the respondent/defendant No. 1, who was evicted from the Government land 10 (ten) years prior to filing of the suit, he was allowed to stay in the 'Ga' schedule land with the condition that he will vacate the land as and when required by the appellant/plaintiff, whereon the defendants/respondents are living by constructing temporary thatched houses and as the appellant/plaintiff required the land and demanded the respondents/defendants to vacate the said land under their possession on 01.08.1995, the respondents/defendants instead of vacating the same denied the title of the appellant/plaintiff over the land, the suit has to be filed for declaration of right, title and interest as well as conformation of possession and also for recovery of possession as discussed above. The appellant/plaintiff further contended in the plaint that the respondents/defendants are the licencee under him in respect of 1 Katha of land only and has no right, title and interest over any portion of the land described in 'Ka' schedule land.

(2.) THE respondents/defendants, on receipt of summons, entered appearance and contested the suit by filing written statement stating inter alia that there was no cause of action, that the suit is not maintainable in the present form, that the suit is barred by limitation, that the suit is bad for non -joinder of necessary parties and also taking the plea o f adverse possession. It has further been contended by the respondents/defendants in the written statement that Osman Seikh Bepari, the original owner, who is the paternal grand father of the appellant/plaintiff orally gifted, in the year 1963, a plot of land measuring 15 Lechas to his sister Meherjan on the southern part of 2 Bighas 1 Katha 11 Lechas of land and delivered possession to her and since than Meherjan was occupying the land by constructing houses and growing tress along with her family members. It has further been contended that after the death of Meherjan said Osman Seikh Bepari on 05.10.1966 executed a katha gift deed in favour of the respondent/defendant No. 1, Md. Altab Ali and Yakub, the father of respondent/defendant Nos. 3 and 4, who are the sons of Meherjan. The respondents/defendants, therefore, contended that the other heirs of Osman Seikh Bepari have no title over the said piece of land measuring 15 Lechas.

(3.) THE learned Trial Court on appreciation of the evidences on record, vide judgment dated 11.04.1997, though has held that there was no delivery of possession of the land gifted by Osman Seikh Bepari in favour of the appellant/plaintiff, which is one of the three essentials of a valid gift under the Mohomedan Law, however, decreed the suit of the appellant/plaintiff in respect of the land described under 'Ka' schedule excluding the land measuring 15 Lechas; which is in pos session of the respondents/defendants by holding that the appellant/plaintiff has failed to prove that the said land is part of the 'Ka' schedule land, i.e. the land gifted to the appellant/plaintiff by his paternal grand father. The learned Court accordingly on 11.04.1997 passed the decree. Being aggrieved, the appellant/plaintiff filed Title Appeal No. 19/1997 in the Court of the learned Civil Judge (Sr. Division), No. 1, Nagaon, Assam, which was however, dismissed by the learned First Appellate Court affirming the judgment and decree passed by the learned Trial Court and by holding that there being no delivery of possession of the subject of the gift by the donor to the donee, such gift is not a valid gift under the Mahomedan Law, the same being an essential condition to constitute a valid gift. Hence the present appeal.