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2015 DIGILAW 727 (GAU)

Md. Rana v. Mustt. Ajijunnessa

2015-06-11

SUMAN SHYAM

body2015
JUDGMENT : 1. Heard Ms. P. Chakraborty, learned counsel appearing for the appellant. Also heard Mr. A. Ikbal, learned counsel representing the respondents. 2. This Second Appeal has been filed challenging the concurrent judgment and decree dated 08.06.2006 passed by the learned Civil Judge (Senior Division), Nagaon in Title Appeal No.52/2003 dismissing the said appeal and affirming the judgment and decree dated 11.09.2003 passed in Title Suit No.32/2005 whereby the suit filed by the plaintiffs/respondent Nos.1 to 3 was dismissed. 3. The brief facts of the case is that the plaintiff Nos.1, 2 and 3 had filed Title Suit No.32/1995 in the Court of Civil Judge (Junior Division) No.1, Nagaon, inter alia, seeking a declaration that the registered deed of gift bearing No.1541 dated 25.08.1993 be declared fraudulent, illegal and null and void and for cancellation of the same together with the prayer for the consequential relief of permanent injunction and recovery of khas possession of the gifted property. The plaintiff Nos.1 to 3 and the proforma defendant Nos.6 to 9 were originally the owners of a plot of land measuring 11 lechas covered by dag No.1321 of P.P. No.640 under Nagaon Town Kissam which is the suit land. The said plot of land measuring 11 lechas was originally under the possession of the plaintiff Nos.1 to 3 as well as the proforma defendant Nos.6 to 9. The defendant No.1 is the step sister of the plaintiffs and is married to the defendant No.2. It has been alleged in the plaint that the defendant Nos.1 and 2 by practicing fraud had got the registered deed of gift bearing No.1541 dated 25.08.1993 executed by the plaintiffs as well as the proforma defendant Nos.6 to 9 gifting the suit land to the defendant No.1 in the pretext of creating a mortgage for obtaining loan from the Bank for the purpose of carrying out permanent construction over the land. Since the plaintiffs are illiterate persons and were interested in obtaining a loan from the Bank for construction of their house over the suit land, which is their inherited property, they had agreed to put their signatures in the document bona fide believing that such an action would entitle them to secure the loan for construction of the house. Since the plaintiffs are illiterate persons and were interested in obtaining a loan from the Bank for construction of their house over the suit land, which is their inherited property, they had agreed to put their signatures in the document bona fide believing that such an action would entitle them to secure the loan for construction of the house. After execution of the instrument, since the defendant No.2 was dilly dallying in the matter, hence, the plaintiffs as well as the proforma defendant Nos.6, 7 and 8 had requested the defendant Nos.1 and 2 to expedite the loan process. However, it was from the proceedings of another case that the plaintiffs could come to know for the first time regarding the execution of the aforementioned deed of gift in favour of the defendant No.1. It was only after obtaining the certified copy of the deed of gift that the plaintiffs as well as the proforma defendant Nos.6 to 8 could find out about the registration of the purported gift deed although they had never gifted the land to the defendant No.1 by receiving “Tasbis” of “Holy Koran”. The plaintiffs have also stated that they had never delivered the possession of the suit 4. The defendant No.1 contested the suit by filing her written statement questioning the maintainability of the suit by taking the formal plea of want of cause of action; suit being barred by principles of res judicata etc. The defendant No.1 has also categorically denied the averment made in the plaint to the effect that the plaintiffs and the proforma defendant Nos.6 & 9 had never gifted the suit land to the defendant No.1 or that the possession in respect of the said property was never delivered to the defendant No.1. The contesting defendant has also pleaded that pursuant to execution of the gift deed she had also accepted the gift in presence of witnesses and since then she has been possessing the suit land and has been using the said land for residential purpose by removing all existing constructions standing thereon. The contesting defendant has also pleaded that pursuant to execution of the gift deed she had also accepted the gift in presence of witnesses and since then she has been possessing the suit land and has been using the said land for residential purpose by removing all existing constructions standing thereon. It is also the pleaded stand of the defendant No.1 that on the strength of the registered deed of gift as well as her possession over the land, the name of the defendant No.1 has also been mutated in the revenue records as well as in the Municipal record by assigning holding number in favour of the defendant No.1. She has also categorically stated that earlier one Abdul Kashem had filed Title Suit No.52/.1993 against the defendant No.1 as well as the plaintiffs challenging the registered deed of gift dated 25.08.1993. In the said suit present plaintiffs were made parties as defendant Nos.3, 5 and 6 whereas the defendant No.1 was impleaded as the defendant No.7. After trial of Title Suit No.52/1993 the Court had rejected the prayer made in the suit by holding that the registered deed of gift was a valid instrument. It has also been stated that during the course of trial of Title Suit No.52/1993 the present plaintiffs had deposed before the trial Court admitting the fact that the suit land and house was in the possession of the present defendant No.1 and also supported the stand of the defendant No.1 that the gift deed was a valid one. 5. The defendant Nos.7 and 8 had also filed written statement separately. According to the defendant Nos.7 and 8, the proforma defendant Nos.6 & 9 had gifted 11 lechas of land covered by dag No.1321 to the defendant No.1 by ‘Hiba bil awaj’ deed and delivered possession. The defendant No.1 had also accepted the gift and got her name mutated. The defendant Nos.7 and 8 supported the case of the defendant No.1. 6. On the basis of the pleadings of the parties the learned trial Court had framed as many as 8 issues and two additional issues, which are quoted herein below :- “1) Whether there is cause of action for the suit? 2) Whether the suit is maintainable in the present form? 3) Whether the suit is bad for non-joinder of necessary parties? 4) Whether the suit is barred by principle of res judicata? 2) Whether the suit is maintainable in the present form? 3) Whether the suit is bad for non-joinder of necessary parties? 4) Whether the suit is barred by principle of res judicata? 5) Whether the suit is barred by Section 34 of the Specific Relief Act? 6) Whether the suit is barred by principle of waiver, estoppels and acquiescence? 7) Whether the gift deed in respect of the schedule A and Schedule B of the suit land are void, illegal, inoperative and without any basis and liable to be declared so? 8) To what relief/reliefs the parties are entitled to? Addl. Issues :- 9) Whether the defendant Nos.1 and 2 has dispossessed the plaintiff forcefully from the suit land? 10) Whether the plaintiff is entitled for recovery of khas possession in respect of a part of the suit land?” 7. The plaintiffs’ side had examined three witnesses whereas the defendant No.1 examined herself as a witness. Upon evaluation of the materials on record as well as on appreciating the submissions made by learned counsels for the parties, the learned trial Court had passed the judgment and decree dated 11.03.2003 dismissing the suit filed by the plaintiffs. 8. The plaintiffs as appellants had preferred Title Appeal No.52/20003 in the Court of Civil Judge (Senior Division), Nagaon challenging the judgment and decree passed by the learned trial Court. Upon hearing the learned counsels for the parties, the learned First Appellate Court had dismissed the Title Appeal No.52/2003 by concurring with the findings and conclusion recorded by the learned trial Court. 9. Being aggrieved by the concurrent judgment and decree dated 08.06.2006 passed by the learned First Appellate Court, the plaintiffs as appellants had approached this Court by filing the instant Second Appeal which was admitted to formal hearing by framing the following substantial questions of law :- “i) Whether the learned Courts below erred in dismissing the suit of the appellants/plaintiffs by totally disregarding the statutory prescribed essential prerequisites of a valid gift under the Mohammedan law?? 10. Ms. P. Chakraborty, learned counsel appearing for the appellants, submits that by means of an amendment to the plaint filed in the Title Suit on 14.06.2000 the plaintiffs had stated that the possession of the gifted property was never delivered to the defendant No.1 but on the contrary it was the defendant No.1 who had dispossessed the plaintiffs from the suit property. In view of such pleaded stand taken by the plaintiffs the learned Courts below ought to have adjudicated upon the said aspect of the matter and recorded a finding as regards delivery of possession of the gifted property since delivery of possession of the gifted property is a sine qua non so as to constitute a valid gift within the meaning of Mohammedan Law. On such count, Ms. Chakraborty submits that the learned Court below had committed manifest illegality in failing to frame an issue on the said aspect of the matter and record a finding of fact in respect thereof. 11. Mr. A. Ikbal, learned counsel for the respondents, submits that both the Courts below have concurrently found that the gift deed under challenge had been executed validly and thereafter the possession had also been delivered to the defendant No.1. It is also the concurrent finding of fact recorded by both the Courts below that the defendant No.1 had accepted the gift and thereafter got her name mutated in respect of the gifted property. Therefore, the substantial question of law framed by this Court does not arise for adjudication in the facts and circumstances of the present case. 12. Mr. Ikbal further submits that leaving aside the findings of fact recorded by the Court below, the plaintiffs’ suit itself is not maintainable the same being barred by principles of res judicata. He submits that Title Suit No.52/1993 filed by one Abdul Kashem challenging the registered deed of gift had ended in dismissal. In the said Title Suit the defendant No.1 as well as the plaintiffs were arrayed as parties and materials on record would go to show that the plaintiffs had categorically admitted not only the possession of the defendant No.1 over the gifted land but has also supported the version of the defendant No.1 that the said plot of land was gifted to her by executing the registered deed of gift. That apart, Mr. Ikbal submits that another Title Suit being T.S. No.69/1994 instituted by Ms. Rubi Begum i.e. proforma defendant No.9 against the present defendant No.1 and the plaintiffs’ challenging the said registered deed of gift also ended in failure as even in this case the learned trial Court had rejected the contention that the gift deed dated 25.8.1993 was a fraudulent deed. Ikbal submits that another Title Suit being T.S. No.69/1994 instituted by Ms. Rubi Begum i.e. proforma defendant No.9 against the present defendant No.1 and the plaintiffs’ challenging the said registered deed of gift also ended in failure as even in this case the learned trial Court had rejected the contention that the gift deed dated 25.8.1993 was a fraudulent deed. The decree passed in Title Suit No.52/1993 as well as Title Suit No.69/1994 dismissing both the suits had not been carried in appeal and as such have attained finality. In that view of the matter, the suit filed by the plaintiffs is clearly barred by the law of res judicata and as such there was no need for adjudication of any of the issues on merits. 13. I have considered the rival submissions made by and on behalf of the parties. On perusal of the records I find that one Abdul Kashem had, in fact, instituted Title Suit No.52/1993 challenging the registered deed of gift bearing No.1541 dated 25.08.1993 wherein the defendant No.1 as well as the present plaintiffs were parties. The plaintiffs had also taken a stand in Title Suit No.52/1993 supporting the case of the defendant No.1 that the registered deed of gift was a valid one and also confirming the stand that the defendant No.1 was in possession of the suit land. The said suit ended in dismissal and no appeal was preferred against the said judgment and decree passed in Title Suit No.52/1993. 14. Title Suit No.69/1994 instituted by Rubi Begum i.e. proforma defendant No.9 had also ended in dismissal by rejecting the prayer for declaration of the registered deed of gift bearing No.1541 as fraudulent one. The present defendant No.1 as well as the plaintiffs were parties in the said Title Suit but no appeal had been preferred by the parties to the said proceeding against the judgment and decree passed in Title Suit No.69/1994. Since the Title Suit No.52/1993 as well as Title Suit No.69/1994 were dismissed by a competent Court having jurisdiction over the matter wherein the subject matter was one and the same as that involved in the present case by and between the same parties, hence, the subsequent suit in the form of Title Suit No.32/1995 was clearly barred by the principles of res judicata and is liable to be dismissed on such count alone. On perusal of the judgment and decree under appeal it appears that the learned Court below had come to a conclusion to the effect that the suit filed by the plaintiff Nos.1 to 3 was barred by principles of res judicata although the term “res judicata” has not been specifically used. 15. Even on merit, it is seen that both the Courts below had recorded concurrent findings of fact holding that the registered deed of gift was a valid document and that not only was the possession of the gifted property delivered to the defendant No.1 but she had also accepted the same. Such finding of fact appears to have been recorded on the basis of cogent evidence available on record. 16. The amendment of the plaint leading to denial of the fact that the possession of the gifted property had not been delivered to the defendant No.1 but the plaintiffs had been dispossessed cannot be accepted on account of the fact that an admission made earlier in the original plaint filed by the plaintiffs regarding delivery of possession of the gifted property to the defendant cannot be taken away by retracting from the same based on an amendment of the plaint. That apart, the materials available on record goes to show that the stand taken by the plaintiffs as regards the possession of the suit property by the defendant No.1 is not only inconsistent with the earlier stand of the plaintiffs on the said issue but the same is also contrary to the materials available on record. As a matter of fact, the learned Courts below had decided the Issue No.7 in favour of the defendant No.1 and against the plaintiffs by placing reliance on cogent evidence available on record. I do not find any justification to disturb such concurrent finding of facts recorded by both the Courts below. That apart, as has been indicated herein before, the plaintiffs’ suit is also held to be barred by res judicata. In such view of the matter, the substantial question of law framed by this Court does not arise for an adjudication in the facts and circumstances of the case. 17. In the result, the Second Appeal stands dismissed. However, having regard to the facts and circumstances of the case, the parties to bear their own costs. Registry to send back the LCR.