RSA 270/2010 BEFORE THE HON’BLE MR. JUSTICE AMITAVA ROY This appeal witnesses a challenge to the judgment and order dated 13.11.2009 pas sed in Title Appeal No.1/09, allowing the same and decreeing the suit of the Res pondent herein. I have heard Mr. S. Medhi, learned counsel for the appellant and Mr. K. Bhattach arjee, learned counsel for the respondent. The respondent herein as plaintiff instituted Title Suit No.181/2007 against the appellant herein praying for a decree for declaration of her right, title and i nterest in and recovery of possession of the suit land as described in the sched ule to the plaint. She claimed her title therein on the basis of a purchase the reof from Smt. Kaushalaya Roy vide registered sale deed dated 05.02.2005. Accor ding to the respondent-plaintiff he could not take possession of the land immedi ately after the purchase as he was away in connection with his service in Guwaha ti. It was almost a year after that he came to learn that the appellant-defenda nt had trespassed into the suit land and had raised unauthorized constructions t hereon. As the respondent-plaintiff unsuccessfully pleaded with the appellant-d efendant to vacate the suit land, the suit was filed. Summons were issued in the suit and as the judgment and order of the learned tri al court would reveal the Process Server submitted a report stating that the app ellant-defendant had refused to accept the same, whereafter, it was served by su bstituted manner as provided by the Civil Procedure Code (hereinafter for short referred to as the Code) by hanging the same on the outer wall of her dwelling h ouse in presence of witnesses. It further transpires from the record that summo ns were thereafter also sent by registered post with acknowledgement due to the appellant-defendant, which was similarly refused by her. In this premise, the l earned trial court accepted the service of the notice on her and proceeded to de cide the suit ex parte. The respondent-plaintiff adduced affidavit evidence of three witnesses including that of hers. She proved the certified copy of the sale deed aforementioned as Ext-1 of the order of mutation of the suit land in her favour as Ext-2, and la nd revenue receipt of the suit land as Ext-3. The evidence of PW-2 Sri Mohit Cha ndra Brahma, a neighbour was to the effect that the respondent-plaintiff had pur chased the suit land from Smt. Kaushalaya Roy at a consideration price of Rs.2,5 0,000/-. This version was supported by Sri Minaram Bharali, PW-3 who not only a ffirmed the sale in favour of the respondent-plaintiff but also exhibited his si gnature on the sale deed as Ext-1 (2) and that of the vendor as Ext-1(1). In he r affidavit evidence she inter alia stated that Smt. Kaushalaya Roy had put her signature (thumb impression) on the sale deed in presence of the Sub-Registrar, Kamrup, Assam and that it was identified by him at the time of the execution of the document. Inspite of the above, absence of any contest by the appellant-defendant notwiths tanding, the suit was dismissed. Being dissatisfied with the dismissal of the s uit, respondent-plaintiff preferred the appeal in which the impugned judgment an d order has been passed. Admittedly, on receipt of the notice of the appeal, th e appellant-defendant contested the same. By the impugned decision however the suit has been decreed. Mr. Medhi has argued that the learned lower appellate court having failed to asc ertain as to whether the summons in the suit had been actually served on the app ellant-defendant, the impugned judgment and order is vitiated by that omission a nd is liable to set aside. The learned Senior counsel has further urged that as admittedly the respondent-plaintiff had exhibited only a certified copy of the sale deed though the original thereof was available, the learned lower appellate court erred in law in decreeing the suit by acting on the secondary evidence wi thout any explanation in support of the admissibility thereof. Mr. Medhi has f urther contended that PW-3 Sri Minaram Bharali having in her affidavit evidence testified that the vendor had put her signature on the sale deed, in the face of an thumb impression appearing on the said document, the proof thereof was not a s required in law and thus the impugned judgment and order declaring the right, title and interest of the respondent-plaintiff in the suit land on the basis of such purported sale is grossly erroneous. Mr. Bhattacharjee, in reply has argued with reference to the certified copy of t he sale deed as well as the evidence on record that it being amply established t hat the appellant-defendant had abstained to contest the suit inspite of service of summons on her, the plea to the contrary is clearly untenable. According to him, the certified copy of the sale deed in the facts and circumsta nces of the case was admissible in law and that no contradiction whatsoever is d iscernible in the evidence of PW-3, Minaram Bharali. The pleadings on record and the arguments advanced have been duly taken note of. Admittedly, the appellant-defendant had not contested the suit. Though, it ha s been insisted upon on her behalf that summons in the suit had not been served on her, in the face of the above categorical finding of the learned trial Court in this regard, at this stage this Court is not inclined to sustain this plea. Noticeably, the learned lower appellate court in the impugned judgment and order has also recorded that the notice had been issued to the appellant-defendant in the suit but she chose not to contest the same, whereafter the same proceeded e x parte. The text of the impugned judgment and order does not reveal any plea t o the contrary raised before it for consideration, though one of the contentions now raised before this Court is that the appellate court had failed to ascertai n as to whether the summons in the suit had been actually served on the appellan t-defendant or not. It is not the case of the appellant-defendant that such an o mission was in the teeth of a specific/categorical plea taken by him before it. Having regard to the modes adopted for service of summons on the appellant-defen dant in the suit as is discernible from the judgment and order of the learned tr ial court, this court is left unconvinced about the tenability of the plea of no n service thereof upon him. The fact remains that the averments made in the plaint have not been uncontrover ed by the appellant-defendant. The respondent-plaintiff has admittedly exhibite d the certified copy of the registered sale deed marked as Ext-1. The evidence o f PW-3 Minaram Bharali affirms the execution of the said document in presence of the jurisdictional Sub-Registrar. This witness not only has proved his signatu re as Ext-1(2) on the said document, he has exhibited the signature of the vendo r thereon as Ext-1(1) with the further clarification that she (the vendor) had p ut her signature (thumb impression). This witness therefore, sought to testify that the mark offered by the vendor as a proof of the transaction from her side was a thumb impression. Obviously, this evidence in the form of an affidavit wa s with reference to the original sale deed. The certified copy of the said docu ment produced in course of the arguments disclose the name of the vendor to be S mt. Kaushalaya Roy, who had put her thumb impression as a mark of execution ther eof. Considering the totality of the evidence on record as adduced by the respondent- plaintiff and in absence of any refutation of the averments in the plaint, this court in the exercise of its jurisdiction under Section 100 of the Code is disin clined to interfere with the impugned judgment and order. The appeal lacks in merit and is dismissed. No costs.