MEGHENDRA KR DEKA S/O LT PRASANNA KR DEKA Vs. DHUPEN DEKA AND ORS S/O LT PRASANNA KUMAR DEKA
HIGH COURT OF GAUHATI
Meghendra Kr Deka S/O Lt Prasanna Kr Deka
Dhupen Deka And Ors S/O Lt Prasanna Kumar Deka
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Prasanta Kumar Deka, J. -
(1.) Heard Mr.P.Sundi , learned counsel appearing for the petitioner. Also heard Ms.B.Choudhury, learned counsel appearing for the respondents No.1 and 2.
(2.) The present appellant is the plaintiff in Title Suit No. 71/2006 in the Court of learned Civil Judge, Sonitpur at Tezpur which was filed against the present respondent as the defendant. The suit is for specific performance of contract. The defendant respondent took a loan of Rs.41,000/- from his elder brother the plaintiff appellant after creating usufructuary mortgage over the suit land. The defendant respondent executed an unregistered document thereby acknowledging the receipt of the borrowed money with a promise that on failure to repay the said borrowed money within a period of six months from the date of its execution i.e. 18.12.1995, the plaintiff appellant has a right to ask for execution of a registered sale deed thereby transferring the mortgaged property. After expiry of the said period the defendant respondent failed to repay the same and it came to the knowledge of the plaintiff appellant that by way of a registered sale deed on 21.1.1997, the defendant respondent sold the said property which is 3 and 1/3 lessas of land alongwith the house / structure standing thereon to the defendant respondent No.2. Finding no alternative the plaintiff appellant preferred the said suit and the suit was filed against the defendant respondent No.1 the borrower and the defendant respondent No.2, purchaser of the mortgaged property.
(3.) The defence of the defendant respondent is total denial. Not only that the defendant respondent No.1 took the plea that the plaintiff appellant out of greed manufactured the said document purportedly shown to be the unregistered mortgage deed and on the strength of the said authorized document, illegally mutated the name of the plaintiff appellant in the holding extract maintained by the Rangapara Town Committee. As such, it was prayed for dismissal of the suit by the defendant respondent No.1. On the basis of the pleadings, the learned trial Court framed the following issues:
1. Is there any cause of action for the suit ?
2. Is the suit maintainable in the present form?
3. Is the suit bad for non-joinder of necessary parties?
4. Whether the defendant No. 1 executed mortgaged document dated 18.12.1995 in favour of the plaintiff as alleged ?
5. Whether the plaintiff is entitled to a decree as prayed for?;
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