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2015 DIGILAW 992 (GAU)

Pranesh Chakravarty v. Netai Banik

2015-08-10

A.K.GOSWAMI

body2015
JUDGMENT AND ORDER A.K. Goswami, J. (Oral) - Heard Mr. D. Mazumdar, learned Senior Counsel for the appellant. None appears for the respondents. 2. This second appeal is presented against the judgment and decree dated 05.05.2006, passed by the learned Civil Judge (Senior Division), Sonitpur, Tezpur in Title Appeal No. 10/2002 affirming the judgment and decree dated 10.04.2002, passed by the learned Civil Judge (Junior Division) No. 2, Tezpur in Title Suit No. 65/1997. 3. The case set out in the plaint, inter-alia, is that suit land measuring 1 Katha 5 Lecha was owned by Late Parbati Charan Chakravorty and he executed a registered Gift Deed dated 06.01.1986 in favour of his minor grandson, Sri Sudip Chakravorty @ Bachu, who is the son of defendant No. 1. It is alleged that when minor Sudip was in the womb of his mother, the defendant No. 1 drove her out from the residence at Dekhiajuli, and compelled by circumstances, she went to live with her brother at Village - Rajagaon, in the district of Nagaon, where Sudip was born. Mother of Sudip was appointed as guardian of the person and landed property of the minor by an order dated 16.02.1996 passed by the learned District Judge, Sonitpur, Tezpur in Misc (G) Case No. 50/1995. The appointed guardian, after obtaining requisite permission from the learned District Judge, Sonitpur to sell the aforesaid 1 Bigha 5 Kathas of land, sold the said land by a registered sale deed dated 16.03.1996 in favour of the plaintiff and possession was also handed over to him. It is averred that after taking physical possession, boundary fencing was erected and 40 Nos. of betel-nut trees were planted. By a registered rectification deed dated 21.03.1997, correction was made with respect to name of her son. It is also stated that the wife of the plaintiff had a plot of land which was on the northern side of the suit land and he was residing there along with his wife. The defendant No. 1 forcefully removed the bamboo fencing on the very day when boundary was fenced and chopped off the betel-nut trees. It is also stated that the wife of the plaintiff had a plot of land which was on the northern side of the suit land and he was residing there along with his wife. The defendant No. 1 forcefully removed the bamboo fencing on the very day when boundary was fenced and chopped off the betel-nut trees. It is alleged that the plaintiff was falsely implicated in a case under Section 366-A I.P.C. and was arrested and, when he was in custody, the defendant No. 1 erected wire fencing on 22.08.1996, and thereafter, a brick wall, with the aid and advice of defendant No. 2, was constructed. The plaintiff was also implicated in another case under Sections 447/447/506 I.P.C. In both the cases, the plaintiff was acquitted. With these allegations, suit was filed for declaration of right, title and interest in the suit land and for recovery of possession as well as permanent injunction. 4. In the written statement filed by the defendants, it is pleaded that in 1986, Parbati Charan Chakravorty was not the owner of the suit land, and therefore, had no right to gift the suit land to his grandson. It is pleaded that defendant No. 1 had ousted his father from the residential house and forcibly occupied the suit land. It is also stated that the gift was not accepted on behalf of the minor and possession was also not delivered to the donee. The allegations made in the plaint against the defendants were also denied. 5. On the basis of the pleadings, the following issues were framed by the learned Trial Court: "(1) Whether the suit is bad for waiver, estoppels and acquiescence? (2) Whether there is any cause of action for the suit? (3) Whether the suit is properly valued and proper court fee has been paid? (4) Whether the plaintiff has right, title and interest over the suit land? (5) Whether the plaintiff is entitled to recover the khas possession of the suit land by evicting the defendants and by demolishing the existing wall on the suit land? (6) Whether the plaintiff is entitled to the relief as prayed for." 6. The plaintiff examined 7 witnesses and defendants also examined 4 witnesses. As noticed earlier, the suit was decreed by the learned Trial Court and the learner lower Appellate Court also affirmed the judgment of the learned Trial Court. 7. (6) Whether the plaintiff is entitled to the relief as prayed for." 6. The plaintiff examined 7 witnesses and defendants also examined 4 witnesses. As noticed earlier, the suit was decreed by the learned Trial Court and the learner lower Appellate Court also affirmed the judgment of the learned Trial Court. 7. This second appeal was admitted to be heard by an order passed on 03.05.2006 on the following substantial question of law: "Whether the Ext. 12 gift deed in favour of the minor was correctly interpreted as a deed conferring right, title and interest upon the donee in absence of any pleading or evidence of acceptance of such gift." 8. Mr. D. Mazumdar, learned Senior Counsel for the appellant has submitted that there is no evidence on record to show that the gift was accepted by donee and in absence of any acceptance, subsequent sale by the donee in favour of the plaintiff will be of no consequence, and therefore, notwithstanding that the sale deed was executed in favour of the plaintiff, the plaintiff will not have right, title and interest in respect of the suit land. It is also submitted that the defendant No. 1 was in possession of the suit land. 9. It appears that defendant No. 2, who examined herself as DW. 2, had also purchased 4 Kathas of land out of 1 Bigha 5 Lecha from Parbati Charan Chakravorty by a registered deed of sale dated 05.05.1986. Ext. 'Ka' sale deed executed by Parbati Charan Chakravorty in favour of defendant No. 2 itself shows that 4 Katha was sold out of 1 Bigha 5 Lecha of land and she was also delivered possession. The balance 1 Katha 5 Lecha of land represents the land of the Gift Deed, exhibited as Ext. 12, which was executed on the next day i.e. on 06.05.1986. 10. Late Parbati Charan Chakravorty was stated to be not having right, title and interest in respect of 1 Katha 5 Lecha of land only on the ground that he was allegedly driven out by the defendant No. 1 in the year 1970. 12, which was executed on the next day i.e. on 06.05.1986. 10. Late Parbati Charan Chakravorty was stated to be not having right, title and interest in respect of 1 Katha 5 Lecha of land only on the ground that he was allegedly driven out by the defendant No. 1 in the year 1970. Both the Courts below have recorded a finding that such a stand of the defendant No. 1 was not found to be true and believable, specially taking into consideration the fact that Parbati Charan Chakravorty had sold 4 Kathas of land to the defendant No. 2 and had also delivered possession, which is also accepted by the defendant No. 1 in his evidence. Thus, there cannot be any dispute that Parbati Charan Chakravorty had right, title and interest in respect of 1 Katha 5 Lecha of land. 11. The plaintiff proved the Gift Deed as Ext. 12 and the sale deed of the plaintiff executed in his favour as Ext. 1. There was no counter-claim by the defendant No. 1 pleading that Gift Deed was invalid on the ground that the gift was not accepted and thus, gift was not complete. It is to be borne in mind that neither the donee nor the guardian of the donee was parties to the suit. Having regard to the frame of the suit, they were not necessary parties also. If the defendant No. 1 had challenged the Gift Deed to be invalid by way of a counter-claim, the same being not accepted by the done, by impleading the donee of the Gift Deed, may be the question of acceptance of the Gift Deed could have come into play. In absence of any challenge to the validity of the Gift Deed, on the ground of non-acceptance of the same, it was not necessary for the plaintiff to have pleaded in the plaint that the gift was also accepted, more so, in view of the fact that necessary permission from the learned District Judge was obtained by the guardian appointed by the learned Court before executing the sale deed, Ext. 1 in favour of the plaintiff on the strength of Ext. 12. 12. The defendants without lodging any counter-claim, cannot collaterally, that too, in absence of the donee, seek a declaration that the Gift Deed was invalid in law. 13. 1 in favour of the plaintiff on the strength of Ext. 12. 12. The defendants without lodging any counter-claim, cannot collaterally, that too, in absence of the donee, seek a declaration that the Gift Deed was invalid in law. 13. In view of the above discussions, I find no merit in this appeal, and accordingly, same is dismissed. No cost. 14. Registry will send back the records.