Decided on February 11,2022

Mina Sinha Appellant
Kajalmani Sinha Respondents


T.AMARNATH GOUD,J. - (1.)Heard Mr. S.M. Chakraborty, learned senior counsel assisted by Mrs. P. Chakraborty, learned counsel appearing for the appellants-plaintiffs. Also heard Ms. S. Deb, learned counsel appearing for the respondents-defendants.
(2.)Both these second appeals are heard and decided together since, they are connected by way of common judgment and decree. As such, they are combined for disposal by a common judgment and order inasmuch as, both the appeals emerged from the common judgment and decree dtd. 17/4/2018 delivered in Title Appeal No. 01 of 2017 and Title Appeal No. 02 of 2017 respectively, by the learned Addl. District Judge, Unakoti, Kailashahar. The learned Additional District Judge, Unakoti, Kailashahar, in Title Appeal No. 01 of 2017 and Title Appeal No. 02 of 2017 respectively, affirmed the judgment and decree dtd. 2/12/2016 passed in Title Suit No. 26 of 2015 and Title Suit No. 01 (CC) of 2016 passed by the learned Court of Civil Judge, (Sr. Division), Unakoti, Kailashahar. At the time of admitting the appeals, the following substantial questions of law were formulated by this Court:
RSA. No. 17 of 2018:

"1. Whether the first appellate Court has committed serious error of law by ignoring the oral evidence of PW-3, Shri Anil Kumar Sinha who is one of the attesting witness in the suit deed as the corroborated the plaintiffs case that the plaintiff did not execute the suit deed?

2. Whether the concurrent finding as returned by the impugned judgment on the issue of limitation can be sustained in view of the fraud exercised by the defendants?"

RSA. No. 18 of 2018:

"Whether the defendant-respondents could have maintained the counter-claim having regard to the order dtd. 23/4/2003 by which his suit being T.S. 23 of 2001 was dismissed for non-prosecution under Order-9 Rule-8 of the CPC, inasmuch as Orde-9 Rule-9 clearly stipulates that unless such order passed under Order-9 Rule-8 of the CPC is reverse by the competent Court, such decision would operate against fresh institution of the suit on the same cause."

(3.)The factual aspects of the case of the appellants in brief are as follows:
The plaintiff of Title Suit No. 26 of 2015 and opposite party/defendant in Title Suit No. 1 (CC) of 2016 pleaded his case that the plaintiffs is the lawful owner and exclusive possessor of the land as described in 1st schedule and who was an ex-serviceman under Police Department, Government of Assam and he never sold out the related land to one Kamala Kanta Sinha, the father of the defendant No. 1 and father-in-law of defendant No. 2 by any means or by executing any kind of deed. But, the plaintiff could learn about the existence of these two deeds on 29/8/2015. Thereafter, he applied for certified copy of suit deed and he collected the same on 31/8/2015 and could learnt perfectly about the suit deed as described in 2nd schedule and which was created secretly by Kamala Kanta Sinha, the father of defendant No. 1 by exercising fraud and by misrepresentation and false personation before the Sub-Register Office, Kailashahar in collusion with attesting witness and the scribe (defendant No. 3) with a view to grab a landed property of the plaintiff.


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