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2015 Supreme(Gau) 1331
GAUHATI HIGH COURT
A.K.GOSWAMI, J.
Amrit Kakoti and Ors. - Appellant
Versus
Karuna Patgiri and Ors. - Respondent
RSA No. 170 of 2006
Decided On : 10-09-2015
For the Appellant :Sheeladitya, Advocate
For the Respondents:R. Sarma, Advocate
Headnote:
Criminal Procedure Code, 1973 - Transfer of Property Act, 1882 - Indian Evidence Act, 1872 - Indian Registration Act, 1908 - Suit land - Fraudulent gift deed - Decreed - Permanent injunction - Praying for declaration of right, title and interest and injunction - It is pleaded that gift deed executed by is a fraudulent gift deed made at a time when was of very old age and when he had suffered from lack of consciousness - and continued to remain in possession - On and defendants entered into suit land and therefore plaintiffs had to file suit praying for right title and interest over suit land and also for declaring that defendants have no title thereon - On death of original defendant No 1 his 8 eight legal heirs were substituted - It appears that on name of one son was struck off - Substituted defendants barring numbering 7 seven describing themselves to be defendant Nos 1 to 7 had also filed a written statement and counter-claim on reiterating stand of their predecessor – Held, Court have considered submissions of learned counsel for parties and have perused materials on record - In instant case learned Lower Appellate Court held that as suit land was not mutated in name of it can be said that Late did not execute gift deed in favour of - It was also held that property left behind by Late was divided amongst legal heirs and suit land fell in share of and - It is an established proposition of law that records of right do not create or extinguish title - Learned Trial Court also noted that name of was written differently in four places with different spellings and held same to be a circumstance against valid execution of Ext-ga - Coupled with that it was also emphasized that alphabet ra had not been written as per ra but was written as per ra - It is worthwhile to note that plaintiffs were raising issue only with regard to land in Dag No of gift deed measuring 2 Bigha 3 Katha 10 Lecha whereas by gift of land in various had been gifted - Mutation of names of and on face of it was not in accordance with law – Petition Allowed.
1. Heard Mr. Sheeladitya, learned counsel for the appellants. Also heard Mr. R. Sarma, learned counsel appearing for the respondents. This appeal is directed against the judgment and decree dated 24.04.2006, passed by the learned Civil Judge (Sr. Diva), Barpeta in Title Appeal No. 6/2005, affirming the judgment and decree dated 29.09.2004, passed by the learned Civil Judge (Jr. Divn.), Bajali, Pathsala in Title Suit No. 25/1996, decreeing the suit of the plaintiffs and dismissing the counter-claim.
2. The second appeal was admitted to be heard by an order dated 19.01.2007 on the following substantial questions of law:
"1. Whether the learned Court below erred in law in holding the Ext-1 as a fraudulent document in absence of specific pleadings and proof to that effect as required under the law?
2. Whether the Court below was justified in setting aside the judgment passed by the learned trial Court and the counter claim filed by the defendant appellant without having specific reference to that effect?"
3. The learned counsel for the parties agreed that in substantial question of law No. 1, 'Ext.-1' is wrongly recorded in place of Ext.-'ga' and accordingly, arguments had been advanced on that basis.
4. Mr. Sheeladitya, learned counsel for the appellants also has not argued on the substantial question of law No. 2 and this aspect of the matter is recorded in the order dated 05.08.2015.
5. The pleaded facts in the plaint, inter-alia, are that one Bahrain Patgiri had 4 Bigha 2 Katha 13 Lecha of land covered by Dag No. 113 of K.P. No. 114 described in Schedule A of Village-Haguriagaon of Uttar Bajali Mouza. He had 2 (two) sons, namely, Ghanashyam Patgiri and Dhaniram Patgiri. During his lifetime, Baliram Patgiri had sold 1 Bigha 2 Katha 10 Lecha to one Basanta Das from Schedule A land and thus on his death, he left behind 3 Bigha 0 Katha 3 Lecha land described in Schedule B. Ghanashyam Patgiri and Dhaniram Patgiri were born through the first wife of Baliram Patgiri. Plaintiff Nos. 1 to 6 and 14 to 19 are sons and daughters of Late Ghanashyam Patgiri and plaintiff Nos. 7 to 11 are sons and daughters of Late Dhaniram Patgiri. Plaintiff Nos. 12 and 13 are wives of Ghanashyam Patgiri and Dhaniram Patgiri, respectively. Defendant No. 2 is the son of Smti. Uttarabala Das, arrayed as defendant No. 3. Uttarabala Das is the daughter of Baliram Patgiri through his second wife (it appears that her name is Sumitra Bala Patgiri). The Schedule B land was in possession of the plaintiffs through Ghanashyam Patgiri since the death of his father. Defendant No. 2 Madhab Kalita instituted a Title Suit being T.S. No. 133/1984 in the Court of Munsiff No. 1, Barpeta against the plaintiffs praying for declaration of right, title and interest and injunction in respect of present Schedule B land. Prayer for temporary injunction made by him was rejected by the learned Munsiff. On receipt of summons and on perusal of the plaint and the case record, for the first time they came to learn that defendant No. 3 fraudulently executed a registered gift deed No. 2098/72 gifting 2 Bigha 2 Katha 10 Lecha within Schedule B land in favour of her son, defendant No. 2 and that by an order dated 23.02.1984, 2 Bigha 3 Katha 10 Lecha was mutated in favour of the defendant No. 2. Title Suit No. 133/1984 was withdrawn in collusion with defendant No. 1 of the present suit on 27.06.1986. But prior to that, on 04.06.1986, defendant No. 2 executed a sale deed in favour of the present defendant No. 1 Amrit Kakoti in respect of 1 Bigha 3 Katha 10 Lecha. On 16.05.1986, the plaintiffs had also come to learn that by a registered sale deed No. 2306 (should have been Gift Deed) dated 16.08.1968, Baliram had gifted 2 Bigha 3 Katha 10 Lecha to Sumitra Bala. It is averred that Sumitra Bala did not accept the gift and never attempted to possess the suit land in respect of which mutation was continuing in favour of the plaintiffs from 27.07.1968 till 24.02.1984 when the suit lan
