Point of Law : Title suit for possession has two parts-first, adjudication of title, and second, adjudication of possession. If the title dispute is removed and the title is established in one or the other, then, in effect, it becomes a suit for ejectment where the defendant must plead and prove why he must not be ejected.

JUDGMENT :

DEVASHIS BARUAH, J.

1. Heard Mr. A. Sattar, the learned for the appellants and Mr. H.K. Deka, the learned senior counsel assisted by Mr. P. Choudhury, the learned counsel for the respondents.

2. This is an appeal under Section 100 of the Code of Civil Procedure challenging the judgment and decree dated 14.03.2017 passed by the Court of the Civil Judge No. 3, Kamrup (M) at Guwahati in Title Appeal No. 12/2021 whereby the said appeal was dismissed thereby affirming the judgment and decree dated 17.01.2021 passed by the Court of the Munsiff No. 3, Kamrup, Guwahati.

3. This Court vide an order dated 30.05.2022 admitted the instant appeal by formulating the following substantial question of law:

(1) Whether the concurrent finding of facts arrived at by the courts below suffers from perversity without taking into consideration that Schedule-B (Schedule-II) is not a part of Exhibit-C, i.e. the registered Gift Deed dated 30.05.1977?

4. For the purpose of determination of the said substantial question of law, it is relevant to take into account the facts and circumstances of the case. For the sake of convenience, the parties herein are referred to in the same status as they stood before the trial court.

5. The predecessor-in-interest of the appellants herein as plaintiff had instituted a suit being Title Suit No. 127/2002 against the defendants seeking declaration that (i) the plaintiff shall not be evicted without due process of law and (ii) for permanent injunction restraining the defendants and their men, agents, servants, attorneys, successors, executors, administrators and others claiming through them from dispossessing and disposing the plaintiff from the premises described in Schedule-B.

6. The said suit was registered and numbered as Title Suit No. 127/2002. The case of the plaintiff in the said suit was that the defendant No. 1 is a trust under which the schedule properties are under control. It was stated that the schedule properties were inherited by late Dr. Tilottama Rai Choudhury and late Amal Prabha Das from their late father Dr. Harekrishna Das. Upon inheriting the said properties, the daughters of late Dr. Harekrishna Das gifted Schedule-A property in favour of the defendant No. 1. As the said Schedule-A property is relevant for the purpose of deciding the substantial question of law, the said Schedule-A property is quoted herein-below:

SCHEDULE-A

All that peace and parcel of land measuring 4 kathas of land out of total 1 bigha 4 kathas 11 lechas of land covered by Dag No. 2184 and 2185 (old)/637 (new) and K.P. Patta No. 988 (old)/358 (new) under Mouza Ulubari alongwith eight Assam Type house standing thereon which is bounded and butted by:

North: J.C. Das Road

South: Land of Asif Meer, owner of Meer Market

East: Land of Late Habiram Deka

West: Land of Late Akan Das.

7. The case of the plaintiff was that while he was a child, he was brought to the schedule land by late Dr. Harekrishna Das in the year 1948 and as the plaintiff was rendering service under the deceased Dr. Harekrishna Das during his lifetime and out of love and affection, the daughters of late Dr. Harekrishna Das, namely, late Dr. Tilottama Rai Choudhury and late Amal Prabha Das even gifted a plot of land in favour of the plaintiff. Late Dr. Harekrishna Das allowed the plaintiff to stay permanently in the Schedule-B premises and permitted the plaintiff to repair and extend the said premises. Even after the death Dr. Harekrishna Das, his daughters, late Dr. Tilottama Rai Choudhury and late Amal Prabha Das honouring the commitment of their father allowed the plaintiff to stay permanently and further allowed to extension/repairing of the suit premises. It is the further case of the plaintiff that he married in the year 1970 and in order to accommodate his family, the above mentioned daughters of late Dr. Harekrishna Das provided a bigger residential house as described in Schedule-B of the plaint which is adjacent to Dr. Harekrishna Das Memorial Library and the p