RSA 138/2010 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY The plaintiffs in Title Suit No.4/2001 by the present appeal is challeng ing the judgment and decree dated 12.04.2007 passed by the learned Civil Judge, Tinsukia in Title Appeal No.9/2006, whereby and whereunder the judgment and decr ee dated 29.05.2006 passed by the learned Munsiff, Margherita in Title Suit No.4 /2001 has been affirmed. The appellants herein as plaintiffs filed the suit for declaration of ri ght, title, interest and for recovery of khas possession, against the present re spondent/ defendant contending inter alia that they derived a title in respect o f the land measuring 1 bigha 12 lechas pertaining to Dag No.68 of periodic Patta No.42 at Ledo Kalpara, described in the schedule to the plaint, by way of inher itance and thereafter though they were peacefully enjoying the suit property, th e defendant on 08.02.2001 has illegally trespassed into the land despite the res istance given by the plaintiffs. On being protested by the plaintiffs, the defen dants claimed that they have purchased a portion of the suit land measuring 4 ka thas from the father of the plaintiffs. The defendants contested the suit by filing written statement contending inter alia that one Algoram Mura was the original owner and after him the suit property devolved on his two sons, namely, Sukhram Mura and Sanichar Mura @ Tolr am Mura. According to the defendants while Sukhram Mura died issueless, Sanichar Mura @ Tolram Mura had two daughters, namely, Smt. Kalomoti Mura and Smt. Bubli Mura. It is also the pleaded case of the defendants that the father of the plai ntiffs Bhima Mura @ Sonar, who used to give milk to Sukhram Mura and also someti me worked as a labourer, after the marriage of Bubli Mura and Kalomoti Mura, tak ing advantage of simplicity and illiteracy started to interfere with the persona l family matters of Sukhram Mura and after the death of Sukhram Mura, Bhima Mura - father of the plaintiffs started selling the properties left by Sukhram Mura. It is also the case of the defendants that his father was very close to Sanicha r Mura @ Tolram Mura, who allow him to occupy the suit land and to raise permane nt structure and accordingly they are in possession of the suit land for last mo re than 24 years along with one Badal Roy. The defendants denied the right, titl e and interest of the plaintiffs over the suit land. On the basis of the pleadings of the parties the following issues were f ramed for consideration and decisions:- 1. Whether the suit is maintainable? 2. Whether the suit is barred by law of limitation? 3. Whether the suit is bad for non-joinder of necessary parties? 4. Whether the plaintiffs have right, title and possession over the suit la nd? 5. Whether the defendant was consented by deceased Sanichar Mura @ Tolram M ura to occupy the suit land by constructing house thereon? In other words, wheth er deceased Sanichar Mura @ Tolram Mura gave consent to the defendants to occupy the suit land by constructing house thereon? 6. Whether the plaintiffs are entitled to the decree as prayed for? 7. To what reliefs the parties are entitled to? The plaintiffs in support of their claims though filed evidence on affid avit of three witnesses, only the PW-1 was available for cross-examination and a ccordingly he was cross-examined by the defendant. The other two witnesses, name ly, PWs-2 and 3 having not been produced for cross-examination, despite the orde rs passed, their evidences were expunged. The defendant examined himself as the witness and also exhibited some documents. It may be noticed at this stage that 7(seven) nos. of documents produced by the plaintiffs were sought to be proved b y the PWs-2 and 3 whose evidences, however, have been expunged as noticed above. The learned Trial Court upon appreciation of the evidences on record has dismissed the suit. Being aggrieved the plaintiffs preferred the Title Appeal N o.9/2006 in the Court of the learned Civil Judge, which has also been dismissed. Hence the present appeal. I have heard Mr. A.B. Choudhury, learned Sr. counsel for the appellants/ plaintiffs as well as Mr. G.P. Bhowmik, learned counsel for the respondent Nos.1 and 2/defendants. It has been contended by Mr. Choudhury, learned Sr. counsel for the appe llants/plaintiffs that though strictly speaking the document Nos.1 to 7 have not been proved by the plaintiffs’ witness No.1 and those were sought to be proved by the PWs-2 and 3, since the plaintiffs’ witness No.1 did mention about the con tents of such documents in evidence, the learned Trial Court ought to have consi dered the contents of such documents, which having not been done, the substantia l question of law arises in the present case is: Whether the courts below were justified in not appreciating the document being d ocument Nos.1 to 7? The learned Sr. counsel, therefore, submits that the present appeal may accordingly be admitted. Mr. Bhowmik, learned counsel for the respondents, however, supporting th e judgment and decree passed by the learned First Appellate Court has submitted that it is being an admitted position of fact that the document Nos.1 to 7 which were sought to be proved by PWs-2 and 3, have not been proved by the PW-1, thos e documents have rightly not been taken into consideration while passing the imp ugned judgment and decree and hence there is no illegality or infirmity in the j udgment and decree passed. It appears that the document Nos.1 to 7 (which are mentioned as Exts.-1 to 7 in the judgment passed by the learned Court below) were sought to be proved through PWs-2 and 3. Those documents were mentioned in the evidence on affidavi t filed by PWs-2 and 3. Those witnesses, however, have not been produced for cro ss-examination by the defendants, consequently the evidence of the PWs-2 and 3 i .e. the examination-in-chief, have been expunged. The evidence of the said witne sses having been expunged naturally the document Nos.1 to 7 mentioned in chief a lso stood expunged. Those documents have also not been proved by the PW-1, thoug h he may have mentioned about the existence of such documents. Those documents h aving not been proved as required under the Evidence Act, the learned Court belo w have not committed any illegality in not taking into consideration of those do cuments, as those having not been proved cannot be taken into consideration unde r the law. The appellants even have not challenged the order by which the eviden ces of PWs-2 and 3 have been expunged. That being the position, no substantial question of law is involved in t he present appeal so as to admit the same. Hence the appeal stands dismissed.