Subhro Kamal Mukherjee, J. - (1.) This is an application under Article 227 of the Constitution of India against judgment and order dated November 30, 2004 passed by the learned District Judge, Cooch Behar in Miscellaneous Appeal No. 3 of 2004 reversing the Order No. 9 dated February 26, 2004 passed by the learned Civil Judge (Junior Division) at Tufanganj, District: Cooch Behar in Title Suit No.7 of 2003.
(2.) The plaintiff/opposite party No. 1 institutes this Title Suit No. 7 of 2003 in the Court of the learned Civil Judge (Junior Division) at Tufanganj, inter alia, for declaration of the title of the plaintiff in respect of the suit property and for a declaration that the registered deed of gift, executed on January 6, 2001 and registered on January 9, 2001, is fraudulent, false and no title was transferred by the said document in favour of the defendant No. 1 and for setting aside of the said deed. The plaintiff, also, prays for further declaration that the defendant No. 1 had no saleable interest in the suit property and, as such, transfers made by him in favour of the defendant Nos. 2 to 8 are all illegal and void and not binding on the plaintiff. The plaintiff prays for perpetual injunction to restrain the defendant Nos. 2 to 8 from entering into the land in dispute on the basis of their sale deeds executed by the defendant No. 1 in their favour.
(3.) The suit was instituted with the following allegations : (a) The plaintiff was a doctor in military and his designation was lieutenant colonel and during his service life he had to move from one place to another place in India. He has retired from service in 1986. At present he is aged about 74 years and he has been suffering from acute diabetes for the last five years and has become almost blind and he is, also, suffering from various other ailments due to his old age. He cannot read, but is able only to put his signature. He recognised person only by voice. (b) During his service career plaintiff purchased a plot of land measuring 16 decimal at village Bhanu Kumari in 1970 from Jadav Chandra Ghose and Ram Jiban Ghose, both sons of late Jamini Mohan Ghose, by registered deed of sale bearing No. 9864 dated September 24,1970 and got possession of the same and the land is in his possession. (c) The defendant No.1 is the younger brother of plaintiff and he, also, purchased a piece of land adjacent to the land of plaintiff at Bhanu Kumari and defendant No. 1 made negotiations both for himself and for the plaintiff. Plaintiff had implicit faith upon defendant No. 1 and plaintiff, also, allowed defendant No. 1 to look after his land. The plaintiff used to send money to defendant No. 1 for payment of tax etc. of the land of the plaintiff. After some time the defendant No. 1 sold his land and shifted to Cooch Behar town where he runs a clinical laboratory and has, also, constructed a two-storied building at Cooch Behar town. (d) The plaintiff, after purchasing the land at village Bhanu Kumari constructed a room therein where he inducted one Narayan Chandra Nath as permissive possessor and the said Narayan Chandra Nath runs a medicine shop. The plaintiff is in possession of the said land and the said room through Narayan Chandra Nath. (e) The defendant No.1 is a very cunning person and he had greedy eye over the land of plaintiff at Bhanu Kumari. He hatched a plan to grab the said land of plaintiff. The defendant No.l is very intimate with the Additional Registrar of Tufanganj. The defendant No.l, with a view to grabing the land of the plaintiff, in collusion with deed writer, Tarini Kanta Barman of Tufanganj Sub-registration Office, made a conspiracy to make a deed of gift of the land of plaintiff in his favour and asked the said deed writer to submit a petition before the Additional Registrar of Tufanganj praying for presenting a deed of gift to be registered on commission at the present address of plaintiff. After complying with all official formalities of commission, defendant No.l along with one person went to plaintiffs' present address and introduced the other person as the Additional District Sub-Registrar, Tufanganj to the plaintiff and falsely stated to plaintiff that a boundary dispute was going on in respect of the land of plaintiff and he assured the plaintiff that he would be able to solve the problem if a power-of-attorney be executed in his favour. At the relevant time only the plaintiff and his daughter-in-law, Gouri Nath, were present in the house of the plaintiff. The plaintiff honestly believed in the statement of defendant No. 1 and put his signature on some papers at the instance of defendant No.1, which were handed over to plaintiff by defendant No.l. The said Gouri Nath, the daughter-in-law of the plaintiff, also, put her signatures as directed by defendant No.1. There was no deed writer at the time of putting signature of plaintiff in the papers handed over by defendant No. 1. The deed writer wrote nothing in presence of plaintiff on any paper. The said deed was not read over to plaintiff. In fact, there was no occasion of plaintiff to make prayer for commission for the purpose of executing and registering a deed. The plaintiff did not pay any money for commission. (f) The defendant No.l, thereafter, left for Cooch Behar after taking the original deed from the plaintiff on the plea that original deed would be required for solving boundary dispute. (g) The defendant No.l, thereafter, did not inform anything regarding boundary dispute of land to the plaintiff. Subsequently, wife of plaintiff went to Bhanu Kumari in connection with marriage ceremony of the daughter of their family friend, Sukumar Pal. At Bhanu Kumari plaintiffs wife came to learn that defendant No.1 has manufactured a deed of gift, in lieu of power-of-attorney, taking advantage of the blindness of plaintiff, which the plaintiff executed at the instance of defendant No.l on commission in his residence. (h) Thus, defendant No.1 by practising fraud and misrepresentation has managed to manufacture a deed of gift in collusion with deed writer and, subsequently, sold out the land illegally to the other defendants. (i) The plaintiff has no reason to make a deed of gift in favour of defendant No.1 and plaintiff never expressed his willingness to make a deed of gift in favour of defendant No.l and the recitals in the alleged deed of gift are all false and fabricated and manufactured by defendant No.1 to serve his own purpose. The alleged deed of gift is false, illegal and fraudulent one. (j) The present suit is a suit for declaration, setting aside a deed of gift relating to land of plaintiff, which is in his possession and injunction as such plaintiff puts his own valuation of Rs.100/- and Court-fees is paid accordingly.;