ABDUL KHALEQUE Vs. MOMTAZ ALI
HIGH COURT OF GAUHATI
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Prasanta Kumar Deka, J. -
(1.) Heard Mr. R.Sarma, learned counsel for the appellant.
(2.) The present appellant is the plaintiff in the Title Suit No. 20/2007 thereby claiming right, title, interest and recovery of possession of the suit land, on the strength of a gift purported to be made by the successor of late Abed Ali who was the original owner of the suit land. It is the contention of the plaintiff appellant that over the suit land measuring 2 katha and out of which a portion of 2 lechas which is under the possession of defendants respondents a mosque is situated which is managed by Fatehpur Kendriya Masjid Committee. The defendants respondents encroached the said portion of land measuring 2 lechas and constructed shops. Hence the suit. The defendants respondents contested the suit by filing written statement alongwith counter claim. They denied that there is any Mosque standing over the suit land. The original owner late Abed Ali died leaving behind three successors, namely one son Hussain Ali and two daughters Amina Khatun and Sukurjan Bibi. Hussain Ali has already died and during his life time he never executed any gift deed in favour of any one. In the counter claim the defendants respondents pleaded that the suit land is ancestral property of the defendants respondents. On the death of their father the defendants had inherited the suit land and they are entitled for declaration of right, title and interest over the suit land. On the basis of said pleadings the defendants respondents claimed their right, title in their counter claim alongwith the relief of cancellation of patta. The trial court dismissed the suit and decreed the counter claim. Being aggrieved the plaintiff appellant preferred Title Appeal No. 2 of 2004 which was also dismissed by the learned Court of Civil Judge, Lakhimpur at North Lakhimpur. Thereafter challenging the judgment and decree of the First Appellate Court this second appeal is preferred. The learned First Appellate Court while considering the fact of gift came to the finding that the said fact of gift by Hussain Ali was not proved. While holding as such, the learned First Appellate Court came to the finding that the purported gift deed which is Ext.3 shows that there are thumb impressions which according to PW 1 and PW 2 are the thumb impressions of Hussain Ali. But the person who collected the said thumb impression, his name is not mentioned. The plaintiff appellant also failed to examine the scribe of said Ext.3. The courts below also disbelieved the evidence that one Khaleque put the signature as attesting witness because the said person while signing his evidence on affidavit had put his signature as Abdul Khaleque but not as Khaleque. The plaintiff appellant exhibited the proceeding book as Ext.6 and the proceeding dated 10.1.1991 as Ext.2. The Courts below on perusal of the said proceeding book came to the finding that the meeting of the Executive Committee of the Mosjid Committee was held on 10.1.1991. Considering the proceeding dated 10.1.1991 Ext.2, it was deposed that Ext.2(2) is the signature of the donee Hussain Ali. As per the evidence of PW 1 and PW 2 the said proceeding was written on 10.1.1991 with the signatures of Hussain Ali as Ext. 2(2) who is the purported donor of the suit land. But the said proceeding book Ext. 6 shows that there was no proceeding written in the said Ext. 6 for the year 1991. Accordingly the Court disbelieved the said proceeding which was recorded in the proceeding book showing the proceeding from 1995 onwards. The courts below further held that even it is presumed that Hussain Ali gifted the suit land then also the said donor had no right to gift total land measuring 2 kathas inasmuch Abed Ali died leaving behind Hussain Ali and two daughters. One of the daughters had deposed denying the said gift. Considering the same the courts below had rejected the claim of the plaintiff appellant holding that the possession of the defendants respondents remained undisturbed inasmuch as the plaintiff appellant failed to prove their possession over the suit land. The courts below dismissed the suit of the plaintiff appellant.
(3.) Mr. Sarma, the learned counsel appearing on behalf of the appellant submits that the learned courts below failed to appreciate the evidence on record in its proper perspective. Further he submits that as the patta had been issued in the name of the plaintiff appellant the learned courts below failed to consider that there exists subsisting title on the plaintiff appellant on the basis of the gift which the court below failed to take into consideration.;
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