ABDUL MALEQUE Vs. ABDUL MATIN

JUDGEMENT

(1.) This Second Appeal is directed against the concurrent findings of two Courts below.

(2.) Md. Abdul Maleque, Md. Amin Ali & Md. Abdul Mazid as plaintiffs instituted Title Suit No.17 of 2005 in the Court of learned Civil Judge (Junior Division), Morigaon, stating that land measuring 11 Bighas 3 Kathas 4 Lechas covered by Dag No. 457 of PP No. 206 was originally owned by one Abu Sheikh. He died leaving behind the plaintiffs No.1 & 2 and one Momin Ali as his legal heirs. Other sons of Abu Sheikh disposed 4 Bighas of land in favour of Abdul Mazid and so the other brothers enjoyed the remaining 7 Bighas 3 Kathas 4 Lechas of land among themselves. There was an amicable partition among the sons of Abdul Sheikh and there upon each of them continued possession of 2 Kathas 4 Bighas 14 Lechas of land. It is further case of the plaintiffs that Momin Ali was a dumb person who died unmarried in custody of the plaintiff No.2 and so upon his death his property devolved on the plaintiffs. But the defendant No.1 basing on a registered sale deed No. 1362 of 2003 claimed that Momin Ali had sold 3 Bighas 4 Kathas 8 Lechas of land in his favour and sought to discharge the title and possession of the plaintiffs. Situated thus, the plaintiffs instituted the suit praying for declaration that aforesaid Sale Deed No. 1362 of 2003 dated 22.07.2003 as forged, null and void, inoperative etc in view of the fact that Momin Ali had died on 21.05.2003 two months before the execution of the sale deed. On being summoned, the defendants appeared and submitted written statement contesting the case of the plaintiffs, wherein various grounds of maintainability were also taken. Based on the rival contentions of the parties the learned trial court framed as many as six issues as follows out of which issues No.3 & 6 are crux of the dispute:

(3.) Plaintiffs examined 7 witnesses while defendants examined 3 witnesses to prove their respective cases. Both the parties adduced documentary evidence as well. The relevant registered sale deed, namely, Sale Deed No.1263 of 2003 dated 22.07.2003 was proved by producing certified copy as Exhibit -3 whereas the defendants produced its original and proved the same as Exhibit -Kha. The learned trial court after consideration of the materials available on record including 7 exhibits adduced by the plaintiffs, 3 exhibits adduced by the defendants and depositions of all the 10 witnesses examined by both sides, held that sale deed dated 22.07.2003 was not executed by late Momin Ali and so the same was adjudged as illegal. As against this judgment, the defendants No.1 & 2 preferred an appeal before the learned Civil Judge, Morigaon, vide Title Appeal No. 12 of 2012 and the learned First Appellate Court by his judgment and decree dated 19.02.2014 dismissed the appeal upholding the findings of the learned trial court in regard to issues No.3 & 6. The learned First Appellate Court also took recourse to Section 73 of the Indian Evidence Act to compare the alleged thumb impression of Momin Ali, available on various pages of Exhibit -Kha sale deed and found that even the thumb impressions available on various pages did not appear to be of same or single person. It is the finding of the learned First Appellate Court that defendants could not prove execution of the sale deed by Momin Ali. This appellate judgment and decree dated 19.02.2014 has been brought under challenge in this present Second Appeal.