Sahidullah Munshi, J. - (1.) This second appeal at the instance of the plaintiff is against the judgment and decree dated April 29, 2009 passed by the learned Additional District Judge, 3rd Court, Malda in O.C. Appeal No. 27 of 2007 affirming those dated 31st July, 2007 passed by the learned Civil Judge (Junior Division), 1st Court, Malda in O.C. Suit No.4 of 2000.
(2.) The plaintiff filed a suit for declaration of title in respect of land comprised in plot no. 989 more fully described in the plaint schedule together with a mango tree standing thereon and for permanent injunction. According to the plaint case plaintiff no.1 purchased the suit plot from one Abhay Charan under a registered deed being no.6800 dated 21.4.1986 and while in possession he constructed a house together with a boundary wall. The plaintiff no.1 subsequently sold out 0.02 decimals of land to his daughter-in-law by a registered deed. According to the plaint case, both the plaintiffs were in possession of the suit property and there is a mango tree on the northern portion of the property along the boundary wall and the plaintiffs are in possession and enjoyment thereof. It has been alleged that the defendants were trying to cut down the said tree illegally and were threatening the plaintiff of dispossession in respect of the said tree. Defendants contested the suit by filing written statement jointly and they have categorically denied the material averments in the plaint. The defendants stated that there was no cause of action for the suit and it was not maintainable. According to the defendants suit plot is a vested property and there are other persons in possession of the suit plot and they are necessary parties in the suit. Defendants' specific case is that the plaintiffs have no legal title in the suit property and the suit is liable to be dismissed. The learned trial Court framed five issues and answered each of the said issues. From the discussion in the judgment of the trial Court it appears that the defendants were contending that half of the tree is on their adjoining plot being plot no.988 and half of the tree belongs to the plaintiff. No evidence was adduced on behalf of the plaintiffs to show that the plaintiffs are the exclusive owner of the said tree. The highest the plaintiff could prove on evidence that the mango tree is near the house of the plaintiff. A Local Investigation Commission was held in respect of the suit property and the learned Commissioner was examined as PW4, who has stated on oath that the said tree is situated on the border in between plot no.989 (suit plot) and 988 (the adjoining plot of the defendants). The plaintiffs have 0.04 acre in plot no.989 and defendants have property in plot no. 988. The evidence as led by the plaintiffs, the learned trial Court concluded on the basis thereof that the disputed tree is standing in between the two plots. According to the learned trial Court since Exbt.3 by which Abhay Charan Das sold the property to plaintiff no.1 did not mention the boundaries of the lands sold, it is not clear as to which portion of the suit plot no.989 is in possession of the plaintiffs. It is undisputed fact that the suit property originally belonged to one Santosh Mondal from whom it was purchased by Abhay Charan Das who is the vendor of plaintiff no.1.
(3.) Learned Courts below held that Santosh was minor and his property was sold by his brother Sirish (Sisir) to Abhay by deed dated 26.10.1983 (Exbt.1). Abhay sold the property to plaintiff no.1 by deed dated 21.04.1986 (Exbt.3). Therefore, the learned Courts below held that since no permission from the learned District Judge was obtained for sale of minor's property the deed dated 26.10.1983 (Exbt.1) was void and subsequent transfer by Abhay under registered deed dated 21.04.1986 (Exbt.3) did not confer any title. The learned trial Court dismissed the suit holding that the plaintiff could not prove title as also possession over the suit property, therefore, the plaintiff was not entitled to get any declaration and injunction. The appeal at the instance of the plaintiff also went against him. The learned Appellate Court below held the same view as the trial Court held. The learned Appellate Court held that although the Local Investigation Commissioner held a local investigation and although, his report was not admitted into evidence but the said Commissioner (PW4) was examined and in his evidence he stated that the disputed mango tree is situated on the boundary line of plot nos. 989 and 988. Learned Appellate Court below held that local investigation report though not accepted it being a part of the record, which clearly showed that the Commissioner has adopted a scientific method of investigation and concluded ultimately that the mango tree is situated on the boundary of the two plots namely plot nos. 989 and 988. According to the learned Appellate Court below the report of the Commissioner does not support the plaintiffs' case that the plaintiffs are in exclusive possession of the mango tree described in the suit property. Learned Appellate Court below observed that there was nothing wrong on the part of the trial Court to hold that the plaintiffs failed to prove exclusive possession of the scheduled suit property and the mango tree and therefore, rightly dismissed the suit. Such a decision of the Courts below is under challenge before this Court. The specific question of law which were framed at the time of admission of the Second Appeal are: i. "Whether the learned Judges in the Courts below substantially erred in law in negating the claim of title on behalf of the plaintiff when admittedly by the erstwhile minor brother did not challenge the execution of deed by his elder brother representing himself to the guardian of the minor? ii. Whether the learned Judges in the Courts below substantially erred in law in construing the report of the learned Investigation Commissioner in so far as the location of the mango tree is concerned?";