Decided on February 05,2021

Achabun Nessa Appellant
Elaich Miah Respondents


Arindam Lodh,J. - (1.) This is a second appeal filed under Section 100 of the CPC against the judgment dated 16.01.2019 and decree dated 17.01.2019 in case No. T.A. 04 of 2018 passed by the learned District Judge, Unakoti, Kailashahar, arising out of judgment dated 28.02.2018 and decree dated 06.03.2018 passed by the learned Civil Judge, Senior Division, Court No.1, Unakoti, Kailashahar in Case No. T.S. 10 of 2016 thereby dismissing the appeal and affirming the judgment and decree of dismissal of the learned Trial Court.
(2.) Heard Mr. D.R. Chowdhury, learned counsel appearing for the appellants as well as Mr. D. Bhattacharjee, learned counsel appearing for the respondents.
(3.) The facts relevant to decide the present second appeal may be set forth in brief. The plaintiff-appellants here-in-after referred to as plaintiffs had instituted a suit for declaration of the registered sale deed bearing No.1-77 dated 18.01.2007 specifically described in the second schedule of the plaint purportedly to be executed by Mayna Miah in favour of the defendant Nos.1 to 4 as illegal, ineffective and effect of fraud, collusion, misrepresentation and not binding on the plaintiffs. The case of the plaintiffs is that the plaintiffs and the defendant Nos.1 to 4 and 8 and 9 are the joint owners of the suit land i.e., the first schedule of the plaint. Mayna Miah was the original owner of the suit land being the predecessor of the plaintiffs and defendant Nos.1 to 4 and 8 to 9. After the death of Mayna Miah on 23.03.2012, the plaintiffs and the defendant No.1 to 4 and 8 to 9 became the owner of the suit land being the legal heirs of the deceased-Mayna Miah. The plaintiffs have been in possession of the suit land and during the lifetime, Mayna Miah never sold the suit land to defendant Nos.1 to 4. But the defendant Nos.1 to 4 being the stepsons of the plaintiff No.1 and step brothers of other plaintiffs have procured forged sale deed as described in the second schedule of the plaint. The plaintiffs came to learn recently about the forged sale deed dated 18.01.2007 and obtained the certified copy of the said forged deed on 12.10.2015 and came to know that the defendant Nos.1 to 4 created the said deed by exercising fraud and misrepresentation, and by making false persuasion and registered it before the Sub- Registry office Kailashahar in collusion with attesting witnesses, scribe and the defendant Nos.5, 6 and 7 with a view to grab the share of the plaintiffs. According to the plaintiffs, Mayna Miah used to put his signature but in the alleged forged deed there was thumb impression alleged to be given by Mayna Miah but no explanation was given in regard to putting of thumb impression in lieu of signature. Mayna Miah during his lifetime never disclosed about the alleged sale deed. It is also pleaded that defendant Nos.1 to 4 on the basis of alleged deed dated 18.01.2007 mutated their names vide khatian No. MR 41/92, 562/2001 and 578/95, which are before the date of disputed deed and for which, the plaintiffs filed a petition on 04.11.2015 for cancellation of the said khatian created in favour of the defendant Nos.1 to 4 before the Revenue Authority. The said petition is still pending and till date the plaintiffs are in possession of the suit land by constructing dwelling hut and by growing crops. The suit was filed by the plaintiffs through their Attorney Hasib Ali who is fully acquainted with the subject matter of the present suit.;

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