- (1.) This second appeal is directed against the judgment and decree dated 4th July, 1984 passed by the Additional District Judge, 3rd Court, Nadia in Title Appeal No. 136 of 1983 affirming the judgment and decree dated 23rd July, 1983 passed by the learned Munsif, 3rd Court at Krishnagar in Title Suit No.250 of 1977.
(2.) Both the Courts below concurrently held that the impugned sale deed dated 23rd October, 1971 being Exhibit- 'A1' was not executed by Jatindra. Nath Biswas and as such the title of Jatindra Nath Biswas in the suit property remained unaffected by the impugned sale. Both the Courts below also held concurrently that the impugned deed of sale was procured by the defendant Nos.1, 2 & 3 by exercise of undue influence and fraud upon Jatindra Nath Biswas. As such, the defendant Nos.1, 2 and 3 did not acquire any interest in the suit property by virtue of the impugned sale deed.
(3.) The propriety of such an appellate decree is under challenge in this second appeal. At the time of admission of this appeal substantial question of law was not formulated in this appeal. However, in course of hearing of this appeal, the following substantial questions of law were formulated :- (i) For that the Courts below erred' in law by not considering that the deed of exchange (Exhibit- 'A') by which the deceased father of the parties viz., Jatindra Nath Biswas acquired title to the suit property, was also executed and registered on the same date and under same set of circumstances and while the plaintiffs accepted the said document as valid cannot challenge the other document (Exhibit- 'A1') as fraudulent and collusive. (ii) For that the Courts below have failed to consider that the plaint is lacking in material, particulars as to the pleadings of fraud and undue influence. (iii) For that the Courts below have failed to consider that the deceased father of the parties left behind him six sons, five daughters and his widow as his only legal heirs and as such the plaintiffs are not entitled to 2/7th share. (iv) For that the Courts below have failed to appreciate that the onus to prove undue influence and fraud is upon the plaintiffs. (v) For that the Courts below erred in law by not holding that the suit is barred by limitation as the deed of sale (Exhibit-'A1') was not challenged within the prescribed period.;