PARMESH SARMAH Vs. ISLAM ALI

JUDGEMENT

(1.) This Second Appeal has been filed by the plaintiffs. The plaintiffs brought a suit being Title Suit No. 21 of 1989 in the Court of the Munsiff No. 1, Nalbari. The suit was dismissed by the Trial Court. There was an appeal being Title Appeal No. 12/90 and the learned Judge by Judgment dated 7.11.90 dismissed the appeal and affirmed the judgment of the learned Munsiff. Hence this Second Appeal.

(2.) The following are the substantial questions of law:- "(1) Whether the Judgments of the learned Courts below were vitiated by non- consideration of the relevant documents Exhibits - 2, 3, 4, 6 (1) to (14) ? (2) Whether the learned Courts below could have excluded Exhibit-1 from consideration on the ground that the witnesses in respect of the said sale deed were not examined in view of the provisions of Section 90 of the Evidence Act? (3) Whether the oral evidence at all could be allowed to contradict a written document Exhibit-1 in view of the bar under Section 92 (of the Evidence Act?

(3.) I have heard Shri B.K. Goswami, learned advocate for appellants and Shri A.K. Goswami, learned advocate for the respondents. The brief facts are as follows:- The plaintiffs filed the suit for declaration of right, title and interest on the suit land measuring 8 Bighas-4 Kathas-13 Lechas on the strength of a deed of purchase in tthe year 1948. The case of the plaintiff is that he was in possession of the land after purchase. Subsequently the defendant No. 1, the father along with his sons Defendants No. 2 to 4 trespassed into the land. The plaintiff instituted a proceeding under Section 145 of the Code of Criminal Procedure in the Court of the Executive Magistrate, Nalbari. But as the order of attachment was vacated by the learned Executive Magistrate, the defendants completely dispossessed the plaintiffs from the suit land. The name of the plaintiff was also mutated, but subsequently it was cancelled at the intervention of the defendant No. 1. A written statement was filed. The case of the defendant was that the suit land was mortgaged in favour of Late Loknath Sarma at a consideration of Rupees one thousand and five hundred respectively. Although the land was mortgaged, the possession of the same was retained by the defendant No. 1. Later-on when Loknath Sarma asked for the return of Rupees one thousand five hundred, the defendant No. 1 having no other alternative took another amount of Rupees one thousand five hundred from the plaintiff and thereafter an another mortgage was created for an amount of Rupees two thousand in favour of the plaintiff. But he did not part with physical possession. The plaintiff fraudulently got his name mutated. During the pendency of the suit the plaintiff died and as such all his sons and daughters were substituted in the suit.