This appeal by the defendant in Title Suit No.70/1996 is directed against the judgment and decree dated 7th July, 2001 passed by the learned Civil Judge (Senior Division), Barpeta (now Civil Judge) dismissing the appeal by upholding the judgment and decree dated 22nd December, 2000 passed by the learned Civil Judge (Junior Division), Barpeta (now Munsiff), in the said suit, whereby and whereunder the suit of the plaintiffs for declaration of right, title and interest and also for confirmation of possession over the suit land has been decreed. [2] The respondents in the present appeal as plaintiff instituted Title Suit No.70/1996 praying for a decree declaring the right, title and interest and confirmation of possession in respect of Schedule-B land, which is part of Schedule-A land, apart from cancellation of the mutation and for issuance of precepts to the revenue authority for correction of revenue records in favour of the plaintiffs, contending inter-alia that the land described in Schedule-A originally belonged to Ajgar Ali, the father of the plaintiffs and Koituriban Nessa, mother of the plaintiffs, the right over which the plaintiffs have derived after the death of their parents. It has also been pleaded in the plaint that the plaintiffs’ name thereafter was mutated in the revenue records. The plaintiffs, however, in the plaint have pleaded that during the lifetimeof their parents, they sold 1 Bigha 1 Katha 5 Lechas of land to the defendant, which is not the suit land. According to the plaintiffs, since the defendant fraudulently got mutation over the land mentioned in Schedule-B on 20th February, 1992, they have to file the suit for declaration of right, title and interest and confirmation of possession, apart from other reliefs sought for, as noticed above. [3] The defendant contested the suit by filing written statement contending inter-alia that that the plaintiff No.1 and his mother Koituriban Nessa by 2(two) deeds, one dated 20th November, 1991 (Exhibit-Ka) and the other dated 15th November, 1992 (Exhibit-Kha) transferred 1 Katha 12 Lechas as well as 18 Lechas of lands, respectively, and by virtue of such transfers the defendant has acquired right, title and interest over the suit land. [4] The learned Munsiff on the basis of the pleadings of the parties framed the following issues for determination:- “1. Whether there is cause of action for the suit? 2. Whether the suit is maintainable in its present form? 3. [4] The learned Munsiff on the basis of the pleadings of the parties framed the following issues for determination:- “1. Whether there is cause of action for the suit? 2. Whether the suit is maintainable in its present form? 3. Whether the suit is barred by limitation? 4. Whether the suit is defective for mis-joinder and non-joinder of necessary parties? 5. Whether the suit is under valued? 6. Whether the suit land is properly identified or not? 7. Whether the plaintiffs have right, title, interest and possession over the suit land? 8. Whether the mutation order dtd. 20.2.92 and 30.3.93 is fraudulent, illegal and void and are liable to be cancelled? 9. Whether the plaintiffs are entitled to a decree as prayed for? 10. To what other relief or reliefs if any, the plaintiffs are entitled?” [5] The trial Court upon appreciation of the evidences on record has decreed the suit of the plaintiffs by holding that they have acquired right, title and interest over the Schedule-B land, by inheritance and no title can be passed on to the defendant by virtue of Exhibit-Ka and Exhibit-Kha deeds, the same being unregistered documents in respect of the property value of which is more than Rs.100/-. [6] Being aggrieved, the defendant preferred Title Appeal No.5/2001 before the First Appellate Court, which has also been dismissed vide the aforesaid judgment dated 7th July, 2001. Hence the present appeal. [7] A Single Bench of this Court vide order dated 20th February, 2002 admitted the appeal for hearing by formulating the following substantial questions of law:- “1. Whether the Suit is barred under Article 58 of the Limitation Act; & 2. Whether the finding of the lower appellate Court with regard to the identification of the suit land is perverse, having arrived at by ignoring evidence of plaintiff, PW 1; and 3. Whether the learned Court below mis-construed the scope and ambit of Section 53A of the Transfer of Properties Actin coming to the finding with regard to title and possession of the plaintiff.” [8] I have heard Mr. B.C. Das, learned senior counsel for the appellant and Mr. N. Hoque, learned counsel appearing for the respondents. [9] Mr. Whether the learned Court below mis-construed the scope and ambit of Section 53A of the Transfer of Properties Actin coming to the finding with regard to title and possession of the plaintiff.” [8] I have heard Mr. B.C. Das, learned senior counsel for the appellant and Mr. N. Hoque, learned counsel appearing for the respondents. [9] Mr. Das, learned senior counsel for the appellant/ defendant has submitted that though vide the aforesaid order dated 20th February, 2002, 3(three) substantial questions of law were framed, the substantial question of law No.3, as framed, is the question involved in the present appeal and accordingly, argument was advanced on the said substantial question of law only. [10] It has been submitted by Mr. Das that even if no title can be passed on to the appellant/defendant by virtue of Exhibit-ka and Exhibit-Kha deeds, the same being not the registered documents, those can be used for collateral purpose, i.e. to demonstrate a contract for sale between the plaintiff No.1 and his predecessor-in-interest and the defendant. It has also been submitted that as it is evident from the recital of the said documents that the possession of the property was handed over to the defendant on execution of the same, coupled with the evidence of the defendant’s witnesses, relating to handing over the possession, apart from performing his part of the contract relating to payment of the consideration money, he is entitled to protectionunder Section 53A of the Transfer of Property Act, 1882 (in short, “the Act”) though the right, title and interest of the property would be with the plaintiffs. The learned senior counsel submits that the said aspect of the matter has not been gone into by any of the Courts below. It has, therefore, been submitted that the judgments and decrees passed by the learned Courts below requires interference by declaring that the defendant is not evictable from the land in view of Section 53A of the said Act. [11] Referring to the finding relating to the possession as recorded by the learned Courts below, it has also been submitted by Mr. [11] Referring to the finding relating to the possession as recorded by the learned Courts below, it has also been submitted by Mr. Das that such finding relating to the possession that the plaintiffs have never handed over the possession to the defendant and they are in possession, is perverse, on the face of it being contrary to the recital in the aforesaid documents, i.e. Exhibit-Ka and Kha, and also the evidence adduced by the defendant. [12] Mr. Haque, learned counsel appearing for the respondents /plaintiffs, on the other hand, has submitted that a clear finding has been recorded by both the Courts below to the effect that possession was not handed over to the defendant either by the plaintiff No.1 or by the predecessor-in-interest of the plaintiff No.1 and hence, the defendant is not entitled to the protection under Section 53A of the said Act. According to the learned counsel, such concurrent finding offact cannot be disturbed in second appeal, unless of course, the perversity in respect of such finding is demonstrated, which, it has been submitted by the learned counsel, the appellant/defendant has failed to do. Mr. Haque further submits that since the execution of the deeds, namely Exhibits-Ka and Kha, were denied and disputed by the plaintiffs, the burden was on the defendant to prove the due execution of the said deeds, which the defendant has also failed to do, as the thumb impressions allegedly of the plaintiff No.1 in Exhibit-Ka and the plaintiff No.1’s mother in Exhibit-Kha have not been proved. Hence, according to the learned counsel, even the execution of those documents have not been proved for which the defendant is not entitled to protection under Section 53A of the Act. [13] I have considered the submissions of the learned counsel appearing for the parties and also perused the judgments and decrees passed by the learned Courts below, apart from the evidences adduced by the parties and also the Exhibit-Ka and Exhibit-Kha, attention of which are drawn by the learned counsel appearing for the parties. [13] I have considered the submissions of the learned counsel appearing for the parties and also perused the judgments and decrees passed by the learned Courts below, apart from the evidences adduced by the parties and also the Exhibit-Ka and Exhibit-Kha, attention of which are drawn by the learned counsel appearing for the parties. [14] Though the defendant in the written statement filed as well as in the evidence adduced claimed that they have acquired the right, title and interest over the suit land by virtue of the sale vide Exhibit-Ka and Exhibit-Kha, both the learned Courts below haverightly held that no title can be passed on to the defendant by virtue of the said deeds, the same being not registered, as the valuation of the property was shown to be more than Rs.100/-. The plaintiffs in fact have denied execution of such deeds either by the plaintiff No.1 or by the predecessor-in-interest of the plaintiff No.1. On the face of denial of execution of such deeds, the burden lies on the defendant to prove due execution of the deeds even for the purpose of deriving the benefit of protection under Section 53A of the aforesaid Act. It is evident from the documents, Exhibit-Ka and Exhibit-Kha that though those documents were proved and marked as exhibits, the thumb impressions said to be of the plaintiff No.1 in Exhibit-Ka and of the plaintiff No.1’s mother in Exhibit-Kha have not been proved. The defendant, therefore, has failed to prove the execution of those documents by plaintiff No.1 and by the mother of the plaintiff No.1. The defendant, therefore, even could not prove that there was a contract for sale, by virtue of Exhibit-Ka and Exhibit-Kha. That apart, the DW-4 during his cross-examination in clear terms has admitted that the possession of the suit land was with the plaintiffs even after the execution of Exhibits-Ka and Kha. The DW-4 was one of the witnesses to the said documents. Mere recital in the said documents, being Exhibits-Ka and Kha, due execution of which also has not been proved, cannot be the sole basis for recording the finding that the possession was handed over to the defendant on execution of the said deeds, more so when the plaintiff No.1, who examined himself as PW-1 was not confronted with the said documents, during cross-examination. [15] In view of the aforesaid discussion, I am of the view that the learned Courts below have rightly decreed the suit of the plaintiffs. The substantial question of law has accordingly been answered. [16] The appeal is, therefore, dismissed. No costs. [17] The Registry is directed to send down the records forthwith. _____________