RSA 75/2002 BEFORE THE HON’BLE MR. JUSTICE BP KATAKEY JUDGMENT & ORDER (ORAL) This appeal by the defendant Nos. 1 to 3 is directed against the judgment and de cree dated 21.12.2001 passed by the learned Civil Judge (Senior Division), Dhubr i in Title Appeal No. 26/1999, whereby and whereunder the appeal preferred by th e plaintiffs/respondents has been allowed by setting aside the judgment and decr ee dated 12.5.1999 passed by the learned Civil Judge (Junior Division) No. 2, Dh ubri in Title Suit No. 130/1989 dismissing the suit filed by the plaintiffs. 2. The predecessor-in-interest of the present respondent Nos. 1 to 4 instituted Title Suit No. 130/1989 praying for declaration of his right, title and interest and confirmation of possession over the plot of land measuring 4 k athas 17 lechas covered by Khatian No. 107 under Dag No. 450 of Village Bichanda i Part I under Pargana Khuua circle, Golukganj in the district of Dhubri, apart from the decree for permanent injunction, contending that the defendant No. 1 wh o was the owner and possessor of the suit land sold it to the plaintiffs by regi stered deed of sale dated 21.9.1974 and delivered possession of the suit land. I t has also been contended that on 14.4.1989 as the defendant threatened to dispo ssess, the plaintiff has instituted the suit for declaration as aforesaid. 3. The defendant Nos. 1 to 3 filed the joint written statement deny ing the sale of the suit land by the defendant No. 1 in favour of the plaintiff by the registered instrument dated 21.9.1974, contending inter alia that on that date i.e. 21.9.1974 the defendant No. 1 went to the Sub Registrar’s Office at G olukganj in connection with the sale of a plot of land by the original plaintiff in favour of one Dilbar Hussain in which deed he was the witness. It has also b een pleaded that the defendant No. 1 never sold the suit land to the plaintiff w hich is also evident from the value of the property given as Rs. 100/- though at the relevant point of time the market value of land was Rs. 2000/ to Rs. 3000/- per bigha. 4. The trial court on the basis of the pleadings of the parties has framed the following issues for consideration and decision: - 1. Whether the suit is maintainable? 2. Is there any cause of action for the suit? 3. Whether the plaintiff had purchased the suit land by a registered sale deed v ide deed No. 8566 dated 21.9.1974 or not? If yes, whether the plaintiff had got delivery of possession and thereby acquired any right, title and interest and po ssession over the suit land? 4. Whether the plaintiff is entitled to get a decree as prayed for? 5. During pendency of the suit the original plaintiff, however, has expired and hence the present respondents were substituted in place of the orig inal plaintiff being his heirs. 6. The plaintiffs in support of their case have examined five witne sses and also proved two documents namely Ext. 1 i.e. the sale deed dated 21.9.1 974, on the basis of which the plaintiffs have claimed their right, title and in terest over the suit land and Ext. ’Ka’ i.e. Khatian No. 107. The defendants exa mined three witnesses and proved the sale deed dated 1.9.1974 which was executed by the original plaintiff in favour of Dilbar Hussain which was also marked as Ext. ’Ka’. 7. The trial court upon appreciation of the evidences on record has answered the issue No. 1 against the plaintiffs on the ground that the other pa ttadars in respect of Khatian No. 107 have not been made parties and hence the s uit is not maintainable. The issue No. 2 was answered in favour of the plaintiff s. The issue No. 3 was also decided against the plaintiffs by holding that the p laintiffs could not prove due execution of the sale deed being Ext. 1 by the def endant No. 1 who has denied his signature in the said sale deed. Issue No. 4 was also consequently decided against the plaintiffs. 8. Being aggrieved the plaintiffs preferred Title Appeal No. 26/199 9 which has been decided vide judgment dated 26.12.2001 decreeing the suit of th e plaintiffs by setting aside the judgment and decree passed by the trial court. Hence the present appeal. 9. The appeal was admitted for hearing vide order dated 23.1.2004 o n the following substantial questions of law: - 1. Whether the findings of the court below with regard to execution of the Sale Deed Ext. 1 has been vitiated for non-consideration of evidence of DWs 1, 2 and 3 and on misreading of averments made in paragraphs 10 and 12 of the written sta tement? 2. Whether the learned lower appellate court was correct in reversing the findin g of the trail court with regard to the maintainability of the suit without cons idering the materials relied upon and reasons adduced by the trial court? 10. I have heard Mr. Sarkar, learned counsel for appellants/defendan ts as well as Mr. Bhowmick, learned counsel appearing for the respondents/plaint iffs. 11. Mr. Sarkar, learned counsel for the appellants referring to the pleadings in the plaint and the written statement as well as the deposition of t he DW 1, 2 and 3 has submitted that since the defendant No. 1 has specifically d enied the execution of the sale deed being Ext. 1 dated 21.9.1974 transferring h is right over the property in favour of the present respondents’ predecessor-in- interest and also denied his signature in the said sale deed (Ext. 1), the plain tiffs did not take any steps for proving the signature appearing in Ext. 1 that the same is the signature of the defendant No. 1, by sending the same for opinio n of the handwriting expert and as such the first appellate court ought not to h ave held that plaintiffs could prove due execution of the sale deed being Ext. 1 . It has also been submitted that the first appellate court also ought not to ha ve reversed the findings recorded by the trail court with regard to the issue No . 1 i.e. maintainability of the suit as it is evident from Ext. ’Ka’ Khatian tha t there were other pattadars apart from Sahebuddin Bepari, defendant No. 1, who have not been made party defendants in the suit. The learned counsel, therefore, submits that the suit of the plaintiffs is not maintainable in the absence of n ecessary parties. 12. Mr. Bhowmick, learned counsel appearing for respondents on the o ther hand, supporting the judgment and decree passed by the first appellate cour t, submits that though the defendants in the written statement have denied execu tion of the sale deed being Ext. 1 dated 21.9.1974, the defendant No. 1 during h is cross examination has admitted the signatures appearing in Ext. 1 and hence t he plaintiffs could prove the due execution of the sale deed. It has also been s ubmitted by Mr. Bhowmick that the defendants in the written statement has not ta ken any plea of non joinder of necessary parties and on the other hand the defen dants have in fact admitted in the written statement that the defendant No. 1 is the owner of the suit land transfer of which, however, has been denied in the w ritten statement filed and, therefore, the judgment and decree passed by the fir st appellate court needs no interference in second appeal. 13. I have considered the rival submissions of the learned counsel f or the parties and also perused the judgments and decrees passed by the courts b elow, apart from the evidences adduced by the parties, both oral and documentary , as the first substantial question of law is based on the contention of the app ellants about perversity in recording the findings by the first appellate court. 14. As noticed above, the predecessor-in-interest of the present res pondents instituted the suit for declaration of right, title and interest in res pect of the suit land by virtue of purchase on the basis of the sale deed dated 21.9.1974 (Ext. 1) executed by the defendant No. 1. The execution of the sale de ed, however, has been denied by the defendants in the written statement filed. T he plaintiff No. 1 has proved the sale deed dated 21.9.1974 which is marked as E xt. 1. During in-chief examination the plaintiff No. 1 has proved the signatures of the defendant No. 1 in the said sale deed (Ext. 1), which are marked as Ext. 1(3), 1(4) and 1(5) apart from the endorsement by the defendant No. 1 before th e Sub Registrar as Ext. 2(1), 2(2). The signature of the Sub Registrar who regis tered the said sale deed was also proved which was marked as Ext. 3(1). Though t he defendant No. 1, who has examined himself as DW 1, in his in-chief examinatio n has denied the signatures marked as Ext. 1(3), 1(4), 1(5), 2(1), 2(2) and 3(1) appearing in Ext. 1, as his signatures, during cross examination he, however, h as admitted that Ext. 1(3), 1(4), 1(5), 2(2) and 3(1) are his signatures. During re-examination of this witness he has also admitted Ext. 2(1) appearing in Ext. 1 as his signature though during cross examination he had denied the same. 15. As discussed above, the defendants in the written statement have not pleaded that the suit land did not belong to the defendant No. 1 alone. In para 10 and 12 of the written statement, pleadings in which according to the def endants was misread, the defendants have pleaded relating to the possession only . In Para 10 the defendants have pleaded that on 14.4.1984, the plaintiffs with the help of muscle man dispossessed the plaintiffs, (which ought to have been th e defendants) from his plot of land which is adjacent and contiguous to the suit land. In para 12 it has been pleaded that as the plaintiffs have encroached on the plot of land belonging to the defendant No. 1 and is liable to be evicted, t he defendant reserves the right to file suit for eviction. By such pleadings in para 10 and 12 the defendants have admitted the possession of the plaintiffs. 16. It appears from the judgment and decree passed by the trial cour t that the suit was held to be not maintainable because of non joinder of necess ary parties i.e. the khatiandars in respect of Khatian No. 107. The defendants h ave not taken any plea in the written statement relating to the non joinder of n ecessary parties in the suit and in fact have admitted that the defendant No. 1 is the owner of the suit land. Perusal of Ext. ’Ka’ Khatian also reveals that Kh atian No. 107 consists of 10 dags, out of which Dag No. 450 is the suit land, wh ich according to the plaintiffs belonged to the defendant No. 1, which has also been admitted by the defendant No. 1 in the written statement. Since Khatian No. 107 consists of 10 Dags as aforesaid and each of the Dag have different specifi c land, the other Khatiandars who have land in other Dags being not necessary pa rties in the suit in hand, the first appellate court has rightly decided issue N o. 1 and issue No. 3 in favour of the plaintiffs. 17. In view of the above, I do not find any merit in the appeal and hence it is dismissed. No cost. 18. The Registry is directed to send down the records forthwith.