Kalyan Rai Surana, J.

1. Heard Mr. S. Ali learned counsel appearing for the appellant as well as Mr. A. Mannaf learned counsel for the respondent. By this appeal under section 96 CPC, the appellant, who is the defendant in the suit has challenged the judgment and decree dated 08.05.2013 passed by the learned Additional Deputy Commissioner, Dima Haso, Haflong in T.S. No. 8/08, thereby decreeing the suit of the respondent/plaintiff.

2. The case of the respondent/plaintiff in brief is that on 26.05.2000 her mother Late Lilabati Sen Mazumder had donated 1-Katha land covered by periodic patta No. 117, Dag No. 238 at Haflong town out of 4-Katha land owned by her to the respondent/plaintiff. The appellant herein who is the defendant in the suit after the death of their mother applied for transfer of 4-Katha of land in his name without knowledge of the respondent. It is projected that the respondent had submitted her objection against the mutation of the land of the respondent in respect of the said land.

3. However, on finding that the Revenue official are not taking any steps for which she had filed a suit for declaration, claiming for a decree of title in respect of 1-Katha land, which was transferred in the name of the appellant. The respondent has also prayed for cost of the suit and any other relief which she may be entitled to.

4. The appellant contested the suit by filing his written statement with counter-claim, wherein a stand was taken that the affidavit by which their mother had donated 1 -Katha land to the respondent, although said to be enclosed as Annexure-1 to the plaint, but the said document was actually not filed along with the plaint The appellant further pleaded that the transfer by way of gift was without fulfilling the ingredients of the provisions of 123 of the Transfer of Property Act and, as such, the affidavit for the purpose of recording the gift was not tenable. All other averments made in the plaint was also denied. By taking a plea that the respondent had illegally occupied 1 Katha land, the appellant had filed a counter-claim, inter-alia, prayed for dismissal of the suit with compensatory cost, for declaring him as the sole pattadar in respect of the land described in the schedule-I and houses standing thereon with further declaration that only the appellant had the right, title and interest over the said land and that the respondent was an unauthorized occupier of the house described in Schedule-II for which the respondent was liable to pay compensation to the appellant for unauthorized use of Schedule-II house from June 2006 to May 2009, and for eviction of the respondent for permanent and temporary injunction and other reliefs.

5. The learned Trial Court on the basis of pleadings, framed the following issues for trial:

1. Is there any cause of action?

2. Whether the Plaintiff has acquired any right over 1 katha of land donated by her mother?

3. Whether the defendant is the sole owner of 4 kathas of land belonging to his mother?

4. To what relief the plaintiff is entitled to?

6. In respect of issue No. 1, it was held that there was cause of action for the suit. In respect of issue No. 2, the learned Trial Court accepted the affidavit as the donation of 1 Katha of land to the respondent and it was held that she was in physical possession of the plot of land and therefore, the issue No. 2 was decided in favor of the respondent by declaring that the respondent had acquired right over the plot of land measuring 1-Katha donated by her mother. In respect of issue No. 3, it was held that the respondent had every right to claim her share since the land was her paternal property and therefore, it was also held that it was possible to manipulate the application for mutation of 4-Katha land in favor of the applicant by manipulating 3-Katha land into 4-Kathas land and therefore, the issue No. 3 was decided in favor of the respondent.

7. Accordingly, in respect of issue No. 4 it was held that the respondent was ent