Oral Order

27 / Dated : 05.07.2024 Heard.

1. This is the defendant’s Second Appeal filed against the judgment of reversal.

2. The plaintiff filed suit for declaration of title and recovery of possession in respect of a room with one verandah and angan being portion of Plot No. 112, under Khata No. 102, Holding No. 58 of Ward No. 10 of Chakardharpur Town P.S. Chakardharpur, Dist.-Singhbhum (West) was dismissed by the learned Trial Court and has been decreed by the learned first appellate court.

CASE OF THE PLAINTIFF

3. Case of the plaintiff is that the house and premises belong to one Md. Sayeed and Md. Umar who were full brothers, and during the current survey settlement operation of Chakardharpur Municipality, it was mutated in their name jointly and later on recorded separately as their business were separate.

4. In the year 1977 both brothers separated their share in respect of the suit property and are in peaceful possession in their respective shares by a Punchnama dated 05.08.1977. Md. Sayeed got his share in the house demarcated by Anchal Officer at Chakardharpur in Demarcation Case No. 48 of 77-78.

5. Md. Sayeed by registered sale deed dated 12.09.79 transferred the suit property (Schedule-A) to the plaintiff and thereon put the plaintiff in possession of the same. Thereafter the plaintiff applied for mutation of his name which was allowed. But later on defendant filed appeal against the said order and appeal of opposite party was allowed. Against that the plaintiff has preferred revision which is still pending.

6. Defendant are claiming the suit property on the basis of an unregistered deed of gift by Md. Sayeed in 1952 and later on gifted the remaining portion of the house to the defendant in 1976. The plaintiff says that the deed of gift is false and fabricated document.

7. In the month of January 1985, defendant broke open the lock of the suit property in absence of the plaintiff and taken the possession of the suit property.

CASE OF THE DEFENDANT

8. Defendant has appeared and filed written statement stating therein that the suit is not maintainable and is barred non-joinder of necessary parties. The suit is also barred by adverse possession as the defendants are in exclusive possession of the suit property since more than 32 years.

9. Brother Md. Sayeed and Md. Umar separated before 1950 and separately possessed their respective share, and in recent survey they confirmed their earlier portion in presence of punches and got it reduced into writing. Defendant is the only issue of Md. Sayeed and used to reside with him along with her husband since after her marriage in the year 1952 and used to look after her father.

10. Md. Sayeed out of love and affection gifted portion of house in Form of ‘Dahej’ to her in writing and in presence of witnesses and she accepted the same later on in the year 1976. Md. Sayeed handed over the remaining portion of the house by way of Dukihtari Hukumnama and in this way she became the owner of the entire house and is coming in possession over the same. Md. Sayeed was not well since 1978 and used to be absent minded and hence any execution of sale deed by him after

1978 was void and illegal.

11. On the basis of the pleadings of the parties, following main issues were framed:

Issue No. 3— Whether the plaintiff has acquired title to the suit property by virtue of sale deed dated 12.09.1979 executed by Md. Sayeed?

Issue No. 4— Whether the sale deed dated 12.09.1979 executed by Md.

Sayeed in favour of the plaintiff in respect to the suit property is void, illegal and without consideration?

Issue No. 5— Whether the partition between Md. Sayeed and Md. Umar took place before 1950 or in the year 1977?

Issue No. 6— Whether Md. Sayeed gifted his share in the house including the suit house to the defendant in the year 1952 and 1976?

12. Learned Trial Court dismissed the suit.

13. Learned First Appellate Court reversed the judgment of the Trial Court and decreed the suit of the plaintiff on following grounds:

i. On the pl