RSA 111/2011 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY The defendants in Title Suit No. 47/1997 have filed this appeal challenging the judgment and decree dated 4.7.2005 passed by the Civil Judge (Senior Division), Nagaon in Title Appeal No. 57/2003 whereby and whereunder the appeal preferred b y the present appellants has been dismissed by affirming the judgment and decree dated 25.9.2033 passed by the learned Civil Judge (Junior Division), Nagaon. The plaintiffs/respondents instituted the aforesaid suit for declaration of righ t, title and interest in respect of the land measuring 4 bighas 2 kathas 1 lecha s covered by Dag No. 686 of KP Patta No. 47 of Velugurigaon Kissam, Mouza-Jamuna mukh in the district of Nagaon contending inter alia that the predecessor-in-int erest of the present appellants/defendants sold the suit land to the predecesso r-in-interest of the plaintiffs/respondents namely Abdul Wahid Laskar by registe red deed of sale dated 10.2.1986 (Ext. 1) and though the predecessor-in-interest of the appellants/defendants namely Rashid Ali subsequently instituted Title Su it No. 58/1990 for specific performance of an alleged contract, contending that the sale vide Ext. 1 is a conditional sale and the predecessor-in-interest of th e plaintiffs agreed to reconvey the title over the suit land in favour of his pr edecessor-in-interest but he did not reconvey the suit land and on the other han d the plaintiffs were dispossessed from the land after dismissal of the said sui t. The plaintiffs, therefore, filed the suit for declaration of right, title and interest and for recovery of khas possession. The appellants/defendants contested the suit by filing the written statement con tending inter alia that the land measuring 4 bighas 2 kathas 1 lecha covered by Dag No. 686 was earlier sold to one Saleh Ahmed, the defendant No. 7 on 10.5.198 5 on the condition that on return of the consideration amount the title over the suit property will be reconveyed to the predecessor-in-interest of the appellan ts/defendant and accordingly Saleh Ahmed on 10.2.1986 reconveyed the property in favour of Rashid Ali which was then conditionally sold by Rashid Ali to the pre decessor-in-interest of the appellants namely, Abdul Wahid Laskar by a registere d deed of sale on 10.2.1986 (Ext. 1) on condition that the title in the suit pro perty would be reconveyed to Rashid Ali on return of the consideration amount. A ccording to the appellants/defendants despite the payment of the consideration a mount the deed of reconveyance was not executed by the plaintiffs. The defendant s have also admitted the filing of the suit being Title Suit No. 58/1990 by the predecessor-in-interest of the appellants/defendants for specific performance of the contract dated 10.2.1986 (Ext.1). The defendant No. 7 Saleh Ahmed, however, denied any transaction relating to the suit land with the predecessor-in-intere st of the appellants/ defendants. The learned trial court on the basis of the pleadings framed the followings issu es: - 1. Whether the suit is maintainable in its present form? 2. Whether the suit is bad for non-joinder of necessary parties? 3. Whether the suit is bad for law of limitation? 4. Whether the plaintiffs were dispossessed from the suit land on 20.12.96 by th e defendants? 5. Whether the plaintiffs have right, title and interest over the suit land? 6. Whether the plaintiffs are entitled to the decree as prayed for? The learned trial court upon appreciation of the evidences on record, both oral and documentary, decreed the suit of the plaintiffs declaring the right, title a nd interest over the land measuring 4 bighas 2 kathas 1 lecha by holding that by virtue of the Ext. 1 sale deed dated 10.2.1986 executed by the predecessor-in-i nterest of the appellants/ defendants they lost the title over the suit land whi ch has been acquired by the plaintiffs. The learned trial court has also held th at Title Suit No. 58/1990 instituted by the predecessor-in-interest of the appel lants/defendants for specific performance of the alleged contract executed on 10 .2.1986 having been dismissed, the stand taken by the defendants in the written statement falls through. Being aggrieved, Title Appeal No. 57/2003 has been preferred by the appellants/d efendants, which has also been dismissed by the learned first appellate court by the aforesaid judgment and decree by affirming the judgment and decree passed b y the learned trial court. Hence the present appeal. I have heard Mr. Mahanta, learned senior counsel for the appellants/defendants a s well as Mr. Choudhury, learned counsel appearing for the respondents/plaintiff s. It has been contended by Mr. Mahanta, learned senior counsel for the appellants/ defendants that there being conditional sale by Ext. 1 sale deed on 10.2.1986 t hat on return of the consideration money the title in the property would be reco nveyed in favour of the predecessor-in-interest of the present appellants, the l earned court below ought not to have decreed the right title and interest of the plaintiffs. It has also been submitted that the appellants/defendants being in possession of the suit land, the finding relating to the dispossession of the pl aintiffs by the defendants, as recorded by the learned courts below, is not base d on the evidence on record. On the contrary Mr. Choudhury, learned counsel for the plaintiffs/respondents su bmits that it is evident from the plea taken by the defendants in the written st atement that execution of the sale deed on 10.2.1986 (Ext.1) by their predecesso r-in-interest Rashid Ali in favour of the predecessor-in-interest of the plainti ffs has been admitted. It has also been submitted that though Rashid Ali claims that such sale was conditional sale, for which the suit for specific performance of the contract being Title Suit No. 58/1990 was filed, the said suit was dismi ssed and, therefore, the plea taken by the defendants by virtue of dismissal of the said suit falls through. It has also been submitted that the clear finding o f fact has been recorded by both the learned courts below regarding title as wel l as subsequent dispossession which requires no interference in the second appea l. As noticed above, the appellants/defendants did not dispute the execution of the sale deed dated 10.2.1986 (Ext. 1) by their predecessor-in-interest in favour o f the predecessor-in-interest of the plaintiffs. The appellants/defendants, howe ver, have pleaded that such sale was conditional i.e. on condition that the titl e in the property would be reconveyed to Rashid Ali on return of the considerati on amount. Rashid Ali during his life time instituted Title Suit No. 58/1990 for specific performance of such contract which according to Rashid Ali was entered on 10.2.1986 between him and the predecessor-in-interest of the plaintiffs. The said suit was dismissed on 16.12.1996. On dismissal of the said suit the plea t aken by the defendants in the written statement about the Ekranama or the contra ct for sale falls through. It also appears that both the learned courts below re corded the finding of fact, keeping in view the evidence of PW 1 as well as the contents of Ext.1 sale deed that the possession was initially handed over to the predecessor-in-interest of the plaintiffs by the predecessor-in-interest of the defendants, who however, were dispossessed by the defendants after dismissal of the Title Suit No. 58/1990. Such concurrent finding of fact recorded by both th e learned courts below cannot be interfered in the second appeal more so when th e perversity of such finding could not be demonstrated. The title of such property was found to be transferred by the predecessor-in-int erest of the defendants in favour of the predecessor-in-interest of the plaintif fs by Ext.1, execution of which is not in dispute. Both the learned courts below have also recorded the finding that though in Ext. 1 the Dag number was mention ed as 688 in place of 686, the same was by mistake as Rashid Ali in the plaint f iled in Title Suit No. 58/1990 has admitted that the suit land is covered by Dag No. 686 which, according to him, was conditionally transferred vide Ext. 1. The finding of fact has also been recorded by the learned courts below that there i s no land belonging to Rashid Ali in Dag No. 688 and he had land in Dag No. 686. This concurrent finding of fact also cannot be disturbed in second appeal more so when Rashid Ali admitted in the plaint filed in Title Suit No. 58/1990 that t he suit land is covered by Dag No. 686 and not by Dag No. 688. In view of the aforesaid discussions, I do not find involvement of any substanti al question of law to admit the appeal. Hence the appeal stands dismissed. No cost. It is needless to say that on dismissal of the appeal interim order, if any, pas sed earlier stands vacated.