An oral gift of land is valid if the donor possessed legal title; non-joinder of parties is non-fatal if no relief sought against absent parties.

JUDGMENT :

ROBIN PHUKAN, J.

1. Heard Mr. T.J. Mahanta, learned Senior Counsel, assisted by Mr. D. Mahanta, learned counsel for the appellants/defendants and also heard Mr. A. Islam, learned counsel for the respondent No.1/plaintiff.

2. This second appeal, under Section 100 of the Code of Civil Procedure, 1908 is directed against the judgment and decree, dated 24.06.2016, passed by the learned Civil Judge, Dhubri, (First Appellate Court in short) in Title Appeal No.74/2013. It is to be noted here that vide impugned judgment and decree, dated 24.06.2016, the learned Civil Judge, Dhubri, has dismissed the appeal and thereby affirmed the judgment and decree dated 31.08.2013, passed by the learned Munsiff No.1, Dhubri, (Trial Court in short) in Title Suit No.267/1997.

3. The background facts leading to filing of the present appeal is briefly stated as under:-

“The respondent No.1 - Smt. Rezaun Nessa as plaintiff, had instituted a title suit, being Title Suit No.267/1997, for recovery of possession of a plot of land measuring 1 bigha 1 katha 18 lecha. Her pleaded case is that her brother Reazul Haque, who has been arrayed as proforma defendant No.5 in the title suit, was the owner of the suit land, measuring 1 bigha 1 katha 18 lecha, covered by Dag No.105 (new)/ 93(old) of Patta No.51, situated at Hatsingimari village. Thereafter, her brother Reazul Haque orally gifted the aforementioned land to her by delivering possession of the suit land to her and since then she has owned the land having the right, title, interest and possession of the same. Then in the year 1993, the defendants, who were affected by flood, approached her for allowing them to stay over the suit land. And accordingly, the plaintiff had permitted them to stay over the suit land temporarily by constructing temporary thatched houses. Even after recession of the flood also the defendants requested the plaintiff to allow them to stay over the suit land for more time. And accordingly, the plaintiff allowed the same. Thereafter, in the month of May, 1997 she has asked the defendants to vacate the land, which the defendants had refused and therefore, the respondent/plaintiff had instituted the title suit, for declaration of right, title and interest over the suit land and also for recovery of the khas possession.

In this context it is worth mentioning that a portion of land, measuring 18 lecha, was acquired by the State of Assam during the pendency of the title suit, for construction of road and thereafter, the plaintiff had filed an amendment petition to incorporate the aforesaid fact and to amend the schedule of the plaint. And accordingly, the same was allowed and now the claim is for 1 bigha 1 katha of land, instead of 1 bigha 1 katha 18 lecha.

The defendants‟ had contented the suit by filing written statement and its pleaded case is that the suit is not maintainable and it is bad in law for non-joinder of necessary parties and they denied the fact that they are the permissive occupier under the plaintiff in respect of the suit land. Their case is that the suit land originally belongs to Akbar Ali, the father of the defendant No.2 Md. Surab Ali and the said Akbar Ali is not made a party and as such, the suit is bad for non-joinder of necessary parties. Further case of the defendants is that the brother of the plaintiff never own and possesses the suit land and as such, he does not have any legal right to gift the suit land to the plaintiff. And as such, the plaintiff cannot acquire any right, title and interest over the suit land and the defendants are residing over the suit land by constructing their residential houses and under such circumstances, they contended to dism