RSA 267/2010 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY Heard Mr. Sarma, learned counsel for the appellant as well as Mrs. Bhatt acharya, learned counsel appearing for the respondent. This appeal by the plaintiff/appellant is directed against the judgment and decree dated 26.06.2008 passed by the learned Civil Judge Lakhimpur, North L akhimpur, in Title Appeal No.6/2008 dismissing the said appeal and affirming the judgment and decree dated 25.02.2008 passed by the learned Munsiff No.1, North Lakhimpur in Title Suit No.19/2004, whereby and whereunder the suit filed by the present appellant was dismissed. The appellant as plaintiff instituted the aforesaid suit being Title Sui t No.19/2004 in the Court of the learned Munsiff for declaration that the affida vit sworn by the defendant on 12.03.2004 before the Additional District Magistra te is genuine and not forged, contending inter alia that the defendant after the ir divorce, on 11.03.2004 executed the affidavit (Ext.-1) relinquishing her righ t over the land measuring 1 katha 7‰ lechas covered by Dag No.1027 of periodic p atta No.109 of 1st Part, Sahar North Lakhimpur under Lakhimpur Mouza, which land was purchased by the plaintiff out of his own fund, but in the name of the defe ndant vide registered deed of sale No.486/96. According to the plaintiff, as the defendant subsequently disputed the execution of such affidavit whereby she rel inquished her right over the land, he had to brought the suit for declaration, a s noticed above. The defendant/respondent contested the suit by filing written statement, contending inter alia that the land measuring 1 katha 7‰ lechas, as described a bove, was purchased by her by a registered deed of sale No.486/96 at Rs.25,000/- from the owner and by such purchase she derived the right, title and interest. It is also the case of the defendant in the written statement that she never swo rn any affidavit on 12.03.2004 as pleaded by the plaintiff in the plaint and the re is no question of execution of such affidavit when admittedly the marriage be tween the parties was dissolved by divorce on 11.03.2004. The defendant filed th e counter claim, for declaration of her right, title, interest and for recovery of khas possession on the basis of the purchase by the aforesaid sale deed. The learned Trial Court on the basis of the pleadings of the parties fra med the following issues for determination:- 1. Whether there is cause of action for the suit? 2. Whether the alleged affidavit submitted by plaintiff is valid, legal and genuine one and accordingly the defendant lost her right, title and interest ov er the suit land? 3. Whether the counter claim of the defendant is maintainable, if so, what relief the defendant is entitled to? 4. Whether the defendant is entitled to recover the khas possession and per manent injunction over the suit land? 5. What reliefs the parties are entitled to? Learned Munsiff No.1 also framed the following additional issues under O rder 14 Rule 5 of CPC. 6. Whether there is cause of action for the counter claim? 7. Whether the counter claim is properly valued and properly stamped? 8. Whether the counter claimant has right, title and interest over the sche dule land? The learned Trial Court upon appreciation of the evidences on record, bo th oral and documentary, has recorded the finding of fact that the affidavit was not executed by the defendant as alleged by the plaintiff on 12.03.2004, thereb y relinquishing her right over the land in respect of which the sale deed No.486 /96 was executed. The learned Trial Court also decreed the counter claim of the defendant declaring her right, title, interest and also for recovery of khas pos session on the basis of the sale deed, which has been proved and marked as Ext.- ka. Being aggrieved the plaintiff preferred the aforesaid Title Appeal No.6/ 2008 in the Court of the learned Civil Judge, which has also been dismissed by t he learned First Appellate Court by the impugned judgment and decree dated 26.06 .2008 by affirming the judgment and decree passed by the learned Trial Court and concurring the finding recorded thereto. Hence the appeal. It has been contended by the learned counsel for the appellant that as t he appellant could prove the execution of the document i.e. the affidavit (Ext.- 1) by examining the writer of the said document, the advocate who identified the defendant as well as the Addl. District Magistrate before whom such affidavit w as sworn, the learned Court below ought not to have held that the plaintiff coul d not prove that the said document was executed by the defendant on 12.03.2004. The learned counsel, therefore, submits that the appeal, therefore, be admitted for hearing by formulating the substantial question of law. The learned counsel appearing for the defendant, on the other hand, refe rring to the judgments and decrees passed by the learned Courts below has submit ted that the finding of fact has been recorded by the learned Court below that s uch affidavit was not sworn by the defendant on 12.03.2004, as the plaintiff has failed to prove the same. It has also been submitted that keeping in view the f act that the marriage between the parties was dissolved on 11.03.2004, there can not be any occasion to execute the affidavit on 12.03.2004. It has also been sub mitted that in any case, there cannot be any relinquishment of right over the pr operty purchased by the defendant by a registered deed of sale (Ext.-ka) by exec uting an affidavit. The learned counsel, therefore, submits that there is no sub stantial question of law involved in the present appeal so as to admit the same. I have perused the judgments and decrees passed by the learned Courts be low and also considered the submissions of the learned counsel for the parties. It appears from both the judgments passed by the learned Courts below th at the marriage between the parties was dissolved on 11.03.2004 and according to the plaintiff the defendant thereafter on 12.03.2004 executed the affidavit. Th e said version of the plaintiff, however, has been rejected by both the learned Courts below as it is highly improbable that the defendant after the divorce wil l execute an affidavit as contended by the plaintiff, on 12.03.2004. That apart, it is not in dispute that vide sale deed (Ext.-ka), the aforesaid land measurin g 1 katha 7‰ lechas was purchased in the name of the defendant. The right over t he said property, therefore, cannot be relinquished by the defendant by executin g an affidavit, the value of the said land being more than Rs.100/-. It also app ears that the defendant having been able to prove her title by proving the Ext.- ka sale deed, the learned Courts below have decreed the counter claim of the def endant. That being the position, I do not find involvement of any substantial qu estion of law in the present appeal to admit the same. The appeal is, therefore, dismissed. However, the parties are directed to bear their own costs.