RSA 102/2009 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY This appeal by the defendants is directed against the ju dgment and decree dated 05-05-2009 passed by the learned Civil Judge, Nagaon in Title Appeal No.14/2008 affirming the judgment and decree dated 30-06-2008 passe d by the learned Munsiff No.1, Nagaon in Title Suit No.58/2004, whereby and wher eunder the suit of the plaintiff for declaration of the right, title and interes t on the basis of the gift deed as well as for recovery of khas possession by ev icting the appellants/defendants from Schedule-A land and Schedule-B house has b een decreed. The present respondent as plaintiff instituted Title Sui t No.58/2004 in the Court of the learned Munsiff No.1, Nagaon praying for a decr ee declaring her right, title and interest over the Schedule-A land and Schedule -B house standing thereon and also for recovery of khas possession by evicting t he defendants from the said property, contending inter alia that the land origin ally belong to Gomani Das, the father of the plaintiff, over which there is a th ree roomed Assam typed house, which was purchased by him vide registered deed of sale dated 14-02-1964. According to the plaintiff, the said land was gifted to her by her father Gomani Das by executing the registered deed of gift dated 24- 02-1984 accompanied by delivery of khas possession. The further case of the plai ntiff is that though she allowed the defendants to stay in one room of the said three roomed Assam typed house described in Schedule-B to the plaint as permissi ve occupier, she subsequently denied the plaintiff’s title, which necessitated f iling of the suit. It has further been pleaded in the pliant that the defendants earlier filed Title Suit No.32/1994 in the Court of the learned Munsiff No.1, N agaon praying for a decree declaring the gift deed dated 24-02-1984 executed by the father of the plaintiff as void, illegal and inoperative and the said suit h as been dismissed vide judgment and decree dated 17-01-1997. The suit has been contested by the present appellants by filing written statement denying the claim of the plaintiff and contending inte r alia that Gomani Das, the predecessor-in-interest of the plaintiff adopted Nay ak Das, who married the defendant No.1 and used to stay in the suit premises. A ccording to the defendants, the original owner, Gomani Das, gifted 11 Lechas of land and part of holding No.19 in favour of Nayak Das, the adopted son and who i s the husband of the defendant No.1 and the defendants accordingly are residing in the said holding. On the basis of the pleadings, the following issues were framed by the learned Trial Court for decision:- 1) Whether there is any cause of action for filing this suit? 2) Whether the suit is maintainable in its present form or not? 3) Whether the suit is barred by any provision of law? 4) Whether the plaintiff has right, title and interest over the suit land descri bed in Schedule A & B of the plaint? 5) Whether the plaintiff is entitled to get a decree for eviction of defendants from the suit land/khas possession or not? 6) To what relief the plaintiff is entitled to? The plaintiff in order to prove her case examined 4 (fou r) witnesses and also exhibited the gift deed dated 24-02-1984 as Exhibit-3, apa rt from proving other documents. The defendants also examined 2 (two) witnesses and proved certain documents. The learned Trial Court, upon appreciation of th e evidences on record, decreed the suit of the plaintiff by holding that the pla intiff acquired the right, title and interest over the suit land by virtue of th e gift deed, which has been proved as Exhibit-3 and the defendant being permissi ve occupier and they having denied the title, they are evictable from the Schedu le-A land and Schedule-B house. The learned Trial Court disbelieved the story p ut forwarded by the defendants relating to the gift in favour of the husband of the defendant No.1 and has held that since the earlier suit filed by the defenda nts for cancellation of the said gift deed dated 24-02-1984, it was held that th e gift deed was validly executed, the plaintiff acquired right, title and intere st over the schedule-A land and the Schedule-B house. Being aggrieved, the defen dants/appellants preferred Title Appeal No.14/2008, which has also been dismisse d by the learned Civil Judge, Nagaon vide judgment and decree dated 05-05-2009. Hence, the present appeal. I have heard Mr. Sarma, the learned counsel for the appe llants as well as Mr. Bora, the learned counsel appearing for the respondent. Mr. Sarma, the learned counsel for the appellants/ defen dants has submitted that since the defendants adduced evidence relating to the o ral gift made by the original owner, Gomani Das, in favour of the husband of def endant No.1, the learned Courts below ought not to have decreed the suit of the plaintiff in respect of the suit property. It has further been submitted that t he earlier suit being Title Suit No.32/1994 having been contested by the present respondents, the prayer made in the present suit could have been made in the wr itten statement filed in the said suit by way of counter claim and since such pr ayer has not been made, the suit of the plaintiff is hit by Order 2 Rule 2 of th e CPC. Mr. Bora, the learned counsel for the respondent, on the other hand, has submitted that it is not in dispute that the earlier suit filed by the present appellants as plaintiffs being Title Suit No.32/1994 praying for declaration that the gift deed dated 24-02-1984 as null and void and inoperativ e, has been dismissed by all the Courts and, therefore, no illegality has been c ommitted by the learned Court below in decreeing the suit of the plaintiffs decl aring right, title and interest based on such gift deed and also in holding that the defendants were permissive occupier. According to the learned counsel, in v iew of the above, the learned Courts below have rightly disbelieved the story of the oral gift as put forward by the defendants. Referring to Order 2 Rule 2 CPC , it has further been submitted by Mr. Bora that the present suit cannot be term ed as not maintainable on the ground that the present respondent did not pray fo r declaration of right, title and interest and recovery of khas possession by wa y of counter claim in the written statement, in the suit filed by the present ap pellants being Title Suit No.32/1994. It appears from the judgments and decrees passed by the learned Courts below and also not disputed by the learned counsel appearing for the appellants that the present appellants instituted Title Suit No.32/1994 in t he Court of the learned Munsiff No.1 at Nagaon against the present respondent as defendant for declaration that the gift deed dated 24-02-1984 executed by the p resent respondent’s father in favour of the respondent as null and void and inop erative. The said suit was admittedly dismissed on 17-01-1997 and though the pr esent appellants preferred Title Appeal No.7/1997 and Second Appeal No.147/1998, the same had also been dismissed. The plaintiff/respondent instituted the pres ent suit for declaration of right, title and interest on the basis of the said g ift deed dated 24-02-1984. The said gift deed has been proved as Exhibit-3. T hat being the position, the learned Courts below have rightly declared the right , title and interest in respect of the suit property in favour of the plaintiff/ respondent and by rightly not accepting the case of the defendants that there wa s an oral gift. The further contention of the learned counsel for the ap pellants that the prayer made in the present suit could have been made by the re spondent in the written statement filed in Title Suit No.32/1994 by way of count er claim, the present suit is not maintainable in view of Order 2 Rule 2 CPC, al so cannot be accepted as the said suit was filed by the present appellants for d eclaration of the right, title and interest of the said gift deed Exhibit-3 as n ull and void and inoperative, which had been contested by the defendants. None filing of counter claim by the respondent in the said suit property for declarat ion of right, title and interest, would not make the present suit not maintainab le, as the provision of Order 2 Rule 2 CPC is applicable to the plaintiff of the said suit only, who is required to include the whole of the claim in the said s uit based on the cause of action of the said suit and may not be permitted to br ing another suit for part of the claim based on same cause of action. In view of the aforesaid discussion, no substantial ques tion of law is involved to admit the appeal and hence the same is dismissed. No cost.