JUDGMENT The present appeal under Section 104 read with Order 43(i)(U) (Rule 23/23A Order 41) of Code of Civil Procedure, 1908 (hereinafter referred to as “C.P.C.”) has been preferred for setting aside the judgment and order dated 7.12.2009 passed by the learned Additional District Judge/F.T.C. IV, Buxar, in Miscellaneous Appeal No. 5 of 2009, whereby, the learned Additional District Judge, Buxar, has set aside the order dated 31.3.2009 passed in Miscellaneous Case No. 2 of 2000 by learned Munsif - II, Buxar, arising out of Execution Case No. 16 of 1988. By order dated 31.3.2009, learned Munsif - II, Buxar, had rejected Miscellaneous Case No. 2 of 2000, which was filed by respondent in Execution Case No. 16 of 1988. Execution Case No. 16 of 1988 was initiated as per instance of the appellant - decree holder in Title Suit No. 132 of 1982. The said Title Suit was filed by father of the appellant Late Kedar Lal against one Batai Ram and it was dismissed. After dismissal of the Title Suit No. 132 of 1982, the father of the appellant Late Kedar Lal preferred an appeal vide Title Appeal No. 31 /30 of 1987 before the District Judge. The said appeal was allowed and suit was decreed in favour of the father of the appellant. Thereafter, Batai Ram, regarding whose eviction suit was decreed, preferred Second Appeal vide S.A. No. 591 of 1988, which was dismissed. Subsequently heirs of Batai Ram filed an appeal before the Hon’ble Supreme Court vide S.L.P. No. 735 of 1995, which was dismissed at the stage of admission itself. In the meanwhile, after the Title Appeal No. 31 of 1987/30 of 1987 was decreed in favour of the father of the appellant, an execution case vide Execution Case No. 16 of 1988 was filed by the decree holder to execute the decree and to get delivery of possession. In Execution Case the respondent claiming third party title and possession filed a Miscellaneous Case vide Miscellaneous Case No. 5 of 1998, which was dismissed on 1.7.1998, on the ground that same was not maintainable. Thereafter, the respondent approached this court by filing Civil Revision No. 1396 of 1998, which too was dismissed. However, in the year 2000, the respondent again filed an objection under Order 21, Rule 97(1) of the C.P.C. which was numbered as Miscellaneous Case No. 2 of 2000. Thereafter, the respondent approached this court by filing Civil Revision No. 1396 of 1998, which too was dismissed. However, in the year 2000, the respondent again filed an objection under Order 21, Rule 97(1) of the C.P.C. which was numbered as Miscellaneous Case No. 2 of 2000. The same was dismissed by the executing court, against which Civil Revision No. 647 of 2000 was filed, which was disposed of on 1.8.2000 by a bench of this court with certain observation and direction. Thereafter the respondent moved before the Executing Court for declaration of his title over the property in question. On 15.9.2000 the Executing Court refused to stay the delivery of possession during the pendency of Miscellaneous Case No. 2 of 2000, whereafter, the respondent filed a Revision vide Civil Revision No. 1820 of 2000, which was allowed on 11.3.2003 and this court stayed the delivery of possession. Finally, Miscellaneous Case No. 2 of 2000 was dismissed by order dated 31.3.2009 passed by Sri Anjani Kumar Singh, Munsif - II, Buxar, which was assailed by respondent in Miscellaneous Appeal No. 5 of 2009, which was allowed on 7.12.2009 and said judgment and order is under challenge in the present appeal. 2. Before proceeding further, it would be appropriate to briefly state the case of both appellant and respondent. 3. Case of Appellant. The appellant’s case is that one Md. Soyab Akhtar Siddiqui, who is own brother of respondent, on the strength of power of attorney executed by one Md. Atik Ahmad and Bibi Sabiha Khatoon, has filed a suit vide Title Suit No. 220 of 1996, in which an injunction petition was filed for staying execution case i.e. Execution Case No. 16 of 1988, which was dismissed and finally approved by the Hon’ble Supreme Court. It is the case of the appellant that Md. Atik Ahmad and Bibi Sabiha Khatoon, were stranger to the family of Choudhary Akhtar Hussain and Choudhary Majhar Hussain as well as were stranger to the land in dispute. It is further claimed that Md. Soyab Akhtar Siddiqui by committing fraud had prepared forged sale deeds executed by Md. Atik Ahmad and Bibi Sabiha Khatoon in favour of respondent/Md. Salauddin. Md. It is further claimed that Md. Soyab Akhtar Siddiqui by committing fraud had prepared forged sale deeds executed by Md. Atik Ahmad and Bibi Sabiha Khatoon in favour of respondent/Md. Salauddin. Md. Atik Ahmad and Bibi Sabiha Khatoon never appeared before the Registrar for registration of the sale deeds, but on the basis of producing fictitious person in collusion with employee of the Registry Office namely, Ram Bilas Ram, sale deeds were got prepared. It was further claimed that disputed land appertains to plot no. 1115, with whom Bibi Sogara and Bibi Kamrunisa were having no connection. Bibi Sogara in place of her claim in plot no. 1115 had taken share in plot no. 3318 and she had already sold her entire share. The land of plot no. 1115 was in exclusive possession of Choudhary Akhtar Hussain and Choudhary Majhar Hussain. In the year 1982 Choudhary Akhtar Hussain transferred the disputed land through registered sale deed dated 13.11.1982 in favour of father of the appellant namely Kedar Lal and he also transferred some land to one Parwej Ali. At the time of purchase, of the disputed land one Batai Ram was a tenant, and as such, for his eviction a Title Suit No. 132 of 1982 was filed by the father of the appellant, which was finally approved by the Hon’ble Apex Court. Initially, Title Suit No. 132 of 1982 was dismissed. Thereafter, an appeal vide Title Appeal No. 31 of 1987/30 of 1987 was filed, which was allowed and decreed. Batai Ram, thereafter, preferred Second Appeal vide S.A. No. 591 of 1988, which was dismissed by this court (High Court), and finally, S.L.P. No. 735 of 1995 preferred against order of S.A. No. 591 of 1988 was dismissed by the Hon’ble Supreme Court. It was further claimed that after dismissal of S.L.P. by the Hon’ble Supreme Court, the judgment - debtor of Title Suit No. 132 of 1982 in the year 1996 introduced respondent of the present appeal, who was running a shop adjacent to the disputed land for delaying the execution proceeding. In furtherance of the said intention he introduced two persons namely, Md. Atik Ahmad and Bibi Sabiha Khatoon, to be son and daughter of Bibi Sogra and from them the Respondent got two registered sale deeds executed in respect of the suit property in his name. It has been claimed that entire land from plot no. In furtherance of the said intention he introduced two persons namely, Md. Atik Ahmad and Bibi Sabiha Khatoon, to be son and daughter of Bibi Sogra and from them the Respondent got two registered sale deeds executed in respect of the suit property in his name. It has been claimed that entire land from plot no. 1115 was transferred in between 1968 and 1981-82 and earlier no objection was raised by anyone. However, after Batai Ram lost his case from the Apex Court ; in the year 1996, with a view to purchase litigation sale deeds were got executed in respect of the suit land. In Miscellaneous Case No. 2 of 2000, which was filed by the respondent under Order 21 Rule 97(1) of the C.P.C. (arising out of Execution Case No. 16 of 1988), the appellant filed detail written statement and he claimed that vendors i.e. Md. Atik Ahmad and Bibi Sabiha Khatoon in the year 1996 had filed a suit vide Title Suit No. 220 of 1996. The said Title Suit was filed by one Md. Soyab Akhtar Siddiqui, who is own brother of respondent on the basis of so - called power of attorney given by said so called Md. Atik Ahmad and Bibi Sabiha Khatoon. In the said Title Suit an injunction petition was filed for staying execution proceeding, which was rejected and approved up to the Hon’ble Supreme Court, and thereafter, Md. Soyab Akhtar Siddiqui got sale deeds executed on 24.10.1996 by putting fictitious person as Md. Atik Ahmad and Bibi Sabiha Khatoon in favour of his own brother namely, Md. Salahuddin, who is none else but respondent in the present case. Two sale deeds were got executed which were never executed before the Registrar, in Registry Office, but registry was done on commission basis. In Execution Case No. 16 of 1988, the respondent filed an objection, which was registered as Miscellaneous Case No. 2 of 2000. The said objection was filed under Order 21 Rule 97(1) of the C.P.C. on 20.1.2000. Two sale deeds were got executed which were never executed before the Registrar, in Registry Office, but registry was done on commission basis. In Execution Case No. 16 of 1988, the respondent filed an objection, which was registered as Miscellaneous Case No. 2 of 2000. The said objection was filed under Order 21 Rule 97(1) of the C.P.C. on 20.1.2000. It was stated that in the light of judgment and decree passed in Title Suit No. 132 of 1982 against respondent Batai Ram and his legal heirs, an execution case vide Execution Case No. 16 of 1988 was filed in the court of Munsif – II, Buxar, in which, when Nazir went to the spot for delivery of possession, the respondent of the present appeal raised obstruction before the Nazir and he produced certain documents to show his title and possession over the land, and as such, Nazir without executing the decree submitted report. 4- Case of Respondent. It is the case of respondent that plaintiff and defendant of Title Suit No. 132 of 1982 had connived with each other and obtained judgment and decree. He claimed that the appellant of the present appeal had no connection with the land in question. Land of plot no. 1115 after the death of Md. Khalil Choudhary was devolved in Bibi Haliman, W/o Md. Khalil Choudhary, Choudhary Akhtar Hussain, Choudhary Majhar Hussain (sons of Md. Khalil Choudhary), Bibi Sogra and Bibi Kamrunisa (daughters of late Md. Khalil Choudhary). The said land came in their share on the basis of judgment and decree passed in Title (Partition) Suit No. 30 of 1932. At the time of partition all the four i.e. Choudhary Akhtar Hussain, Choudhary Majhar Hussain, Bibi Sogra and Bibi Kamrunisa were minors. Total area of plot no. 1115 was 2460 Sq. Ft. Total area of the said land was in joint possession and continuing till date as joint property. Bibi Haliman died in 1950. Subsequently, Bibi Sogra also died, and her share came to Md. Atik Ahmad and Bibi Sabiha Khatoon, son and daughter respectively of Bibi Sogra and since then both were in possession over their share of the land. It has been claimed that Choudhary Akhtar Hussain, after partition in between India and Pakistan, settled in Pakistan. However, after retirement he returned back to India and settled at Sherghati. Atik Ahmad and Bibi Sabiha Khatoon, son and daughter respectively of Bibi Sogra and since then both were in possession over their share of the land. It has been claimed that Choudhary Akhtar Hussain, after partition in between India and Pakistan, settled in Pakistan. However, after retirement he returned back to India and settled at Sherghati. Choudhary Majhar Hussain, after the death of Bibi Haliman and Bibi Kamrunisa and in absence of Choudhary Akhtar Hussain and in view of the fact that Bibi Sogra was a “Pardanasheen” lady tried to usurp share of all the share holders. Choudhary Majhar Hussain out of 2460 Sq Ft land firstly transferred some land to Bibi Maimun Nisha through registered sale deed dated 28.3.1968. Similarly, he transferred land from the said property to others. Choudhary Akhtar Hussain on 13.11.1982 had transferred land to two persons through two registered sale deeds. By one sale deed dated 13.11.1982 he sold land measuring 20’ x 18’ to Parvej Ali and second sale deed was executed by Choudhary Akhtar Hussain in favour of Kedar Lal (father of the appellant). It has been claimed that legal heirs of Bibi Sogra namely, Md. Atik Ahmad and Bibi Sabiha Khatoon through two registered sale deeds dated 24.10.1996 had transferred the suit land to him (Md. Salahuddin) and since then he is continuing his possession over the land in question and he is running a shop in the name and style of “Vaishali Book Depot” and also a stationery shop. He is in exclusive possession over the land in dispute. He claimed that he had purchased the land from the share of Md. Atik Ahmad and Bibi Sabiha Khatoon. It has also been claimed that Choudhary Akhtar Hussain had sold the land to the appellant’s father excess to his own share i.e. after transferring 20’ x 18’ land measuring 360 Sq Ft to Parvej Ali, Choudhary Akhtar Hussain was left with only 409 Sq Ft, whereas, he sold 870 Sq. Ft. land to the father of the appellant. He has claimed that he is a bona fide purchaser and he is having independent title over the disputed land. He has admitted that earlier he had filed an application under Order 21 Rule 97 of the C.P.C. in the same court, which was numbered as Miscellaneous Case No. 5 of 1998 and same was dismissed on 1.7.1998 merely on technical ground. He has admitted that earlier he had filed an application under Order 21 Rule 97 of the C.P.C. in the same court, which was numbered as Miscellaneous Case No. 5 of 1998 and same was dismissed on 1.7.1998 merely on technical ground. Against the said order he preferred Revision vide Civil Revision No. 1396 of 1998 in the High Court, which was dismissed on 30.9.1999. However, subsequently, he raised obstruction at the time of execution before the Nazir. In view of the order of High Court third party right was required to be examined, and as such, subsequently, he filed objection, which was numbered as Miscellaneous Case No. 2 of 2000. 5. In support of claim in Miscellaneous Case No. 2 of 2000, the appellant, herein, had produced altogether 17 witnesses and appellant himself was examined as OPW No. 17. The appellant is the son of Late Kedar Lal. On 13.11.1982, Choudhary Akhtar Hussain had executed sale deed in favour of Late Kedar Lal (father of the appellant). OPW No. 1 Jagdish Choubey is a formal witness, who proved 12 tax receipts issued by Buxar Nagarpalika, which were marked as Exhibit - A to A/11. The said tax receipts were issued in between 1972 to 1975. OPW No. 3 Jai Prakash Upadhyaya is also a formal witness, who proved tax receipt dated 31.7.1987 issued by Buxar Nagarpalika, which was marked as Exhibit - A/12. OPW No. 4 Ram Vyas Singh, who is also a formal witness, has proved copy of plaint of Title Suit No. 132 of 1982, which has been marked as Exhibit - Y. OPW No. 5 Gauri Shankar Pandey is also a formal witness, who has accepted that Title Suit No. 220 of 1996 was typed on 14.10.1996 and verified by Soyab Akhtar Siddiqui. OPW No. 6 Shyam Bihari Pathak has proved the plaint of Title Suit No. 220 of 1996, which has been marked as Exhibit – B. OPW No. 8 Nagendra Narayan Lal, aged about 78 years, has said that plaint of Title Suit No. 132 of 1982 was prepared in his presence. OPW No. 10 Lallan Singh is also a formal witness. OPW No. 11 Umesh Upadhyaya is a formal witness, who proved sale deed dated 13.11.1982, which was executed by Choudhary Md. OPW No. 10 Lallan Singh is also a formal witness. OPW No. 11 Umesh Upadhyaya is a formal witness, who proved sale deed dated 13.11.1982, which was executed by Choudhary Md. Ali Akhtar Hussain, in favour of father of the appellant, which was marked as Exhibit - C. OPW No. 12 Raghuwar Sharan Singh said that on 13.11.1982 Choudhary Md. Ali Akhtar Hussain executed sale deed in favour of Kedar Lal, on which Jagdamba Prasad had signed as a witness, which has been marked as Exhibit - C/1. OPW No. 13 Govind Prasad Singh, said that in Execution Case No. 16 of 1988/ Miscellaneous Case No. 2 of 2000 from the side of Sumeshwar Prasad Ram, S/o Batai Ram, a petition dated 20.7.1996 typed by Ram Prasad -Typist, was filed which was marked as Exhibit - D, whereby, a prayer for adjournment was made on the ground that appeal preferred before the Hon’ble Supreme Court was not listed. OPW No. 14 Balbir Tiwari is a formal witness, who said that plaint of Title Suit No. 132 of 1982 was typed in his presence. OPW No. 15 Bharat Pandey is also a formal witness, who proved signature of one Rajgrihi Yadav as a witness of sale deed executed by Choudhary Md. Ali Akhtar Hussain in favour of Kedar Lal and same was marked as Exhibit – C/2. OPW No. 16 Shivjee Pandey is also a formal witness, who said that on 13.11.1982 sale deed was prepared by Choudhary Md. Ali Akhtar Hussain in favour of Kedar Lal. OPW No. 2 Julfikar Ali said that on the disputed land Batai Ram was tenant of Choudhary Akhtar Hussain and he was running a tea shop over the land in question. He further said that adjacent North to the disputed land there is a double storeyed building, in which, family of Kedar Lal resides. OPW No. 7 Vishwanath Prasad Arya, aged about 75 years has categorically stated that on disputed land, which is 10 Ft wide from East to West and 18 Ft long from North to South, Batai Ram was running tea shop, which continued up to the month of December, 1999 and from January, 2000 Md. Salahuddin /respondent is running the shop. He further said that North adjacent to the land there is double storeyed building of Anil Kumar Sinha/ appellant, who is residing since last 25 years. Salahuddin /respondent is running the shop. He further said that North adjacent to the land there is double storeyed building of Anil Kumar Sinha/ appellant, who is residing since last 25 years. Similarly, OPW No. 9 Sunil Kumar Verma has stated that on disputed land up to December, 1999, Batai Ram was running tea shop and from January, 2000 Md. Salahuddin (respondent ) is running the shop. North adjacent to the said shop there is double storeyed building of Anil Kumar Sinha (appellant). 6. Respondent/Md. Salahuddin with a view to prove his case has examined altogether 29 witnesses. He himself has been examined as AW No. 29. AW No. 1 Praveen Kumar Srivastava is a formal witness. AW No. 2 Nagendra Narayan Lal is also a formal witness, who has proved tax receipts issued by Buxar Nagarpalika in the name of Md. Salahuddin, which has been marked as Exhibit - 1, 1/A, 1/B, 1/C & 1/D. AW No. 3 Dina Nath Mishra is a formal witness. AW No. 5 Umakant Lall is also a formal witness who said that certified copy of sale deed dated 24.10.1996 was prepared on 4.12.1996. AW No. 4 Parmatma Singh is also a formal witness, who said that in his presence Md. Atik Ahmad and Bibi Sabiha Khatoon had executed Deed No. 10923 dated 24.10.1996, which has been marked as Exhibit - X. AW No. 7 Jai Prakash Upadhyaya, is a formal witness. AW No. 8 Ram Narayan Rai is also a formal witness, who said that certified copy of sale deed dated 13.11.1982 was prepared on 30.10.1996. AW No. 9 Jagdish Choubey is a formal witness, who said that certified copy of deed dated 28.3.1968 was prepared in his presence on 28.11.1996, which has been marked as Exhibit - X/4. AW No. 10 Madan Pandey, a formal witness, has said that certified copy of deed dated 28.4.1983 was prepared in his presence, which has been marked as Exhibit X/5. AW No. 12 Basuki Nath Kumar, a formal witness has said that certified copy of Deed No. 4054 (Murtaza Ali vs. Gayatri Devi) was prepared in his presence on 22.6.2006, which has been marked as Exhibit - X/6. AW No. 12 Basuki Nath Kumar, a formal witness has said that certified copy of Deed No. 4054 (Murtaza Ali vs. Gayatri Devi) was prepared in his presence on 22.6.2006, which has been marked as Exhibit - X/6. AW No. 14 Raghunath Singh, a formal witness, has said that certified copy of Deed No. 7501 (Murtaza Ali vs. Shyam Sundar Prasad ) was prepared on 23.6.2006 in his presence and same has been marked as Exhibit - X/7. AW No. 17 Haridwar Singh, AW No. 18 Rameshwar Lall and AW No. 19 Santosh Kumar Singh are formal witnesses. AW No. 20 Bunty Verma has proved a letter no. 140 dated 15.9.2006 issued from the office of Buxar Registry, which has been marked as Exhibit - 2. AW No. 22 Sunil Kumar Dubey, who is a formal witness, has said that in his presence sale deed dated 28.4.1983 (Choudhary Majhar Hussain vs. Smt. Gayatri Devi) was incorporated in the register of the Registry Office. AW No. 23 Baijnath Singh, a formal witness, has said that in his presence sale deed dated 20.6.1989 (Murtaza Ali vs. Shyam Sundar Prasad) was incorporated in the register of Registry Office and he proved the signature as Exhibit - 3/A. AW No. 24 Diwakar Mishra, a formal witness, has said that in his presence sale deed dated 21.4.1989 ( Murtaza Ali vs. Gayatri Devi) was incorporated in the register of the Registry Office and he proved signature as Exhibit - 3/B. AW No. 25 Basudeo Pathak, a formal witness, has said that in his presence sale deed dated 13.6.1949 (Bibi Haliman vs. Babu Shashi Kant Singh ) and sale deed dated 28.3.1968 (Majhar Hussain vs Maimunisa ) was incorporated in the register of the Registry Office and he proved writing and signature, which were marked as Exhibit - 3/C & 3/D. AW No. 28 Dayanand Upadhyaya, a formal witness, has proved the report of Nazir dated 16.1.2000 prepared in Execution Case No. 16 of 1988, which has been marked as Exhibit - 4. AW No. 21 Ramchandra Prasad, who was a Clerk in Buxar Registry Office was examined on the point that he had brought register of Registry Office relating to certain registered sale deeds. AW No. 26 Hasmat Hussain Khan was also a Clerk in the Buxar Registry Office, who produced register relating to Deed No. 9912 dated 13.11. AW No. 21 Ramchandra Prasad, who was a Clerk in Buxar Registry Office was examined on the point that he had brought register of Registry Office relating to certain registered sale deeds. AW No. 26 Hasmat Hussain Khan was also a Clerk in the Buxar Registry Office, who produced register relating to Deed No. 9912 dated 13.11. 1982 ( Ali Akhtar Choudhary vs Perwez Ali) and same was marked as Exhibit - 3/E. AW No. 6 Ahmad Hussain, who is a shop keeper, had said that opposite his shop, there is disputed property, which is under the possession of Md. Salahuddin (respondent). He further stated that Md. Salahuddin had purchased the said property from Md. Atik Ahmad and Bibi Sabiha Khatoon, and thereafter, he is running a shop in the name and style of “Vaishali Book Depot”. He further said that land in dispute was in possession of Md. Atik Ahmad and Bibi Sabiha Khatoon. In cross - examination he has said that Md. Salahuddin (respondent) is running his shop on disputed property since 1996. He further accepted that he had heard the name of Batai Ram and Sumeshwar Prasad is the son of Batai Ram. He further said that Batai Ram never had any tea shop. He has stated in paragraph no. 19 of his cross - examination that in between Md. Salahuddin (respondent) and Anil Kumar Sinha (appellant) Title Suit No. 220 of 1996 is going on and on behalf of Md. Salahuddin he was examined as a witness in the said case. However, from his cross - examination it is evident that he has said that he was knowing nothing about family details of either Md. Atik Ahmad or Bibi Sabiha Khatoon. AW No. 11 Nurul Hoda said that Md. Salahuddin had got registered sale deed from Md. Atik Ahmad and Bibi Sabiha Khatoon, and thereafter, in the front portion of the land, he got a shop constructed and he is running shop of copy and books and also sports goods. He said that earlier it was in possession of Md. Atik Ahmad and Bibi Sabiha Khatoon. He has stated categorically in paragraph no. 12 that on disputed land Batai Ram never had any tea shop nor he was ever in possession of the same. In his cross – examination he has shown unawareness of the fact that Md. Soyab Akhtar was own brother of Md. Atik Ahmad and Bibi Sabiha Khatoon. He has stated categorically in paragraph no. 12 that on disputed land Batai Ram never had any tea shop nor he was ever in possession of the same. In his cross – examination he has shown unawareness of the fact that Md. Soyab Akhtar was own brother of Md. Salahuddin (respondent). In paragraph no. 23 of his cross – examination, he has accepted that Bibi Sabiha Khatoon and Md. Atik Ahmad had not gone to Registry Office, but on commission basis registry was done in respect of disputed land. He further accepts in paragraph no. 24 of his cross - examination that just behind the disputed land, there is the office of Buxar Nagarpalika and 100 -150 Ft away from the Buxar Nagarpalika there is Registry Office. He has shown unawareness regarding the date of death of Bibi Sogra or the place where she died. He further said that one month before execution of the sale deed Md. Atik Ahmad and Bibi Sabiha Khatoon had come to Buxar from Faizabad. He said that he had never heard the name of Batai Ram and also he was not aware that Someshwar Ram was the son of Batai Ram. AW No. 13 Mani Lall said that sale deeds were executed by Md. Atik Ahmad and Bibi Sabiha Khatoon in favour of Md. Salahuddin/respondent on 24.10.1996 in his presence and he was one of the witnesses to the sale deeds. In paragraph no. 9 of his cross - examination he said that he knows only Md. Salahuddin and none else. AW No. 15 Subhan Ali has said that Bibi Sogra was married in Faizabad and she was having one son, namely, Md. Atik Ahmad and one daughter namely, Bibi Sabiha Khatoon and Md. Atik Ahmad and Bibi Sabiha Khatoon on 24.10.1996 had executed sale deeds in favour of Md. Salahuddin. The said land was earlier in possession of Bibi Sogra and after her death it was in possession of Md. Atik Ahmad and Bibi Sabiha Khatoon. In paragraph no. 10 of his cross - examination he accepts that earlier he was examined as witness in a case which was initiated by Md. Salahuddin/respondent and this case was also initiated by Md. Salahuddin. Both the cases are in relation to the same disputed land. Atik Ahmad and Bibi Sabiha Khatoon. In paragraph no. 10 of his cross - examination he accepts that earlier he was examined as witness in a case which was initiated by Md. Salahuddin/respondent and this case was also initiated by Md. Salahuddin. Both the cases are in relation to the same disputed land. He has said that Bibi Sogra died 55-56 years back and one year prior to her death he had met her. He has shown complete unawareness regarding Bibi Kamrunisa, Choudhary Majhar Hussain and Choudhary Akhtar Hussain in paragraph no. 11 of his cross - examination. In paragraph no. 18 of his cross - examination he said that both Md. Atik Ahmad and Bibi Sabiha Khatoon were healthy. He has said that on the date of execution of sale deeds i.e. 24.10.1996 he was not aware about the age of Md. Atik Ahmad or Bibi Sabiha Khatoon and also on the point as to whether, they were old or young he has shown unawareness. In paragraph no. 29 he admits that Batai Ram was a leader of Congress Party, but he was not aware whether in respect of the same disputed land Batai Ram had lost his case up to the Hon’ble Supreme Court. He has denied the suggestion in paragraph no. 31 that Batai Ram after he lost the case from the Hon’ble Supreme Court, had set up Md. Salahuddin and got executed forged sale deeds in his favour. AW No. 16 Akhouri Krishna Murari Sinha, who was the deed writer, has said that Md. Atik Ahmad and Bibi Sabiha Khatoon had executed two sale deeds on 24.10.1996 in favour of Md. Salahuddin. In his cross – examination in paragraph no. 8 he accepts that no reason was assigned as to why registry was done on commission basis. In paragraph no. 9 he further accepts that draft of Deed was prepared since earlier, which was given to him for copying the same. In paragraph no. 13 he has denied the suggestion that in collusion, forged documents were prepared. AW No. 27 Keshar Chaudhary has stated that on 24.10.1996 in his presence Md. Atik Ahmad and Bibi Sabiha Khatoon had executed two registered sale deeds in favour of Md. Salahuddin. He has said that before execution of the deeds Md. In paragraph no. 13 he has denied the suggestion that in collusion, forged documents were prepared. AW No. 27 Keshar Chaudhary has stated that on 24.10.1996 in his presence Md. Atik Ahmad and Bibi Sabiha Khatoon had executed two registered sale deeds in favour of Md. Salahuddin. He has said that before execution of the deeds Md. Atik Ahmad and Bibi Sabiha Khatoon were in possession over the disputed land, and thereafter, it is in possession of Md. Salahuddin. In his cross - examination he said that he had gone to the residence of Md. Atik Ahmad and Bibi Sabiha Khatoon at Faizabad, but in paragraph no. 22 he accepts that he had never seen Choudhary Akhtar Hussain and Choudhary Majhar Hussain. 7. Sri Chandrashekhar Singh, learned counsel appearing on behalf of the appellant, while assailing the order dated 7.12.2009 passed by the Additional District Judge - cum – F.T.C. IV, Buxar, in Miscellaneous Appeal No. 5 of 2009, has argued that on the basis of materials and evidences brought on record, the learned Munsif - II, Buxar, had passed legal and valid order, which was not required to be interfered with by the learned Additional District Judge. He submits that the so - called vendors of respondent had executed so - called sale deed in favour of the respondent on 24.10.1996, whereas, vendors of respondent /Md. Salahuddin had already filed a suit vide Title Suit No. 220 of 1996 for partition of the property, which had fallen in the portion of Bibi Haliman, Choudhary Akhtar Hussain, Choudhary Majhar Hussain and Bibi Sogra. He submits that respondent/Md. Salahuddin had purchased the land in dispute during the pendency of Title Suit No. 220 of 1996. He further submits that unless Title Suit No. 220 of 1996 was decided, the plaintiffs of Title Suit No. 220 of 1996, who are vendors of respondent were not having any authority to execute sale deeds in respect of the said suit property. It was further pleaded that the original title holder of the suit property was Choudhary Akhtar Hussain, who had executed sale deed in respect of the land in question long back on 13.11.1982 in favour of father of the appellant. After the purchase of suit property i.e. appertaining to plot no. It was further pleaded that the original title holder of the suit property was Choudhary Akhtar Hussain, who had executed sale deed in respect of the land in question long back on 13.11.1982 in favour of father of the appellant. After the purchase of suit property i.e. appertaining to plot no. 1115 out of land measuring 2460 Sq Ft, father of the appellant filed a suit for eviction against one Batai Ram, who was tenant of the then vendor in relation to an area of 10 Ft wide from East to West and 18 Ft wide from North to South measuring total area of 180 Sq Ft, since Batai Ram was running a tea shop in the said area. It was argued that initially Title Suit No. 132 of 1982 was dismissed. However, on appeal preferred by the father of the appellant, it was allowed and judgment and decree was passed in his favour. Finally, judgment and decree in favour of the appellant’ side was approved up to the Hon’ble Supreme Court. It has been argued that when the tenant (Batai Ram) lost up to the Hon’ble Supreme Court, he maneuvered in disturbing the appellant by way of introducing respondent/Md. Salahuddin as purchaser of the disputed property. According to learned counsel for the appellant, firstly, a suit was filed vide Title Suit No. 220 of 1996, in which an injunction petition was filed for granting stay in Execution Case, which was filed by the appellant vide Execution Case No. 16 of 1988. After filing of the suit i.e. Title Suit No. 220 of 1996, which was filed by Md. Atik Ahmad and Bibi Sabiha Khatoon, claiming to be son and daughter of Bibi Sogra, they transferred the suit property by executing sale deeds in favour of the respondent/Md. Salahuddin. He further submits that injunction petition filed in Title Suit No. 220 of 1996 was rejected and was approved by the superior courts also. After a long delay the respondent raised obstruction and resistance in the execution case and he filed petition under Order 21 Rule 97 (1) of the C.P.C., which was registered as Miscellaneous Case No. 2 of 2000. In the Miscellaneous Case both the parties adduced evidences and finally, learned Munsif - II, Buxar, after examining evidences and material on record rejected the Miscellaneous Case assigning a detailed reason by order dated 31.3.2009. In the Miscellaneous Case both the parties adduced evidences and finally, learned Munsif - II, Buxar, after examining evidences and material on record rejected the Miscellaneous Case assigning a detailed reason by order dated 31.3.2009. The said judgment and order was assailed by the respondent vide Miscellaneous Appeal No. 5 of 2009. It was argued that though entire evidence was already available before the Additional District Judge, the learned Lower Appellate Court without appreciating evidences, in a perfunctory manner, has set aside the judgment and order of learned Munsif- II, Buxar, and remitted back the matter to the Lower Court for fresh determination as per Rule 101 Order 21 of the C.P.C., which is not sustainable in the eye of law. It was argued that since there were already all materials and evidences available before the Lower Appellate Court, the learned Lower Appellate Court was required to examine all the evidences and decide the Appeal instead of remitting back the matter to the learned Munsif - II, Buxar. He submits that law is settled on the point that if evidence is already available before the Appellate Court, the Appellate Court instead of remitting the matter back to the Lower Court is required to adjudicate on the basis of evidence while hearing an appeal. In support of his submission, learned counsel for the appellant has referred to a single bench judgment of this court reported in 2011(3) PLJR 221 (Md. Moid @ Abdul Moid & Ors. vs. Maha Sundari Devi & Ors.). Particularly, he has referred to paragraph no. 9 of the said judgment. For better appreciation, it would be appropriate to quote the same, which is as follows:- “9. Admittedly, both the parties had adduced oral as well as documentary evidences and therefore, all the materials are available on record. There is no finding of the Appellate Court that evidences are insufficient and the Appellate Court is unable to pronounce judgment after appreciation of the materials available on record. Rule 24 of Order 41 reads as follows:- “Rule 24. Where evidence on record sufficient, Appellate Court may determine case finally. There is no finding of the Appellate Court that evidences are insufficient and the Appellate Court is unable to pronounce judgment after appreciation of the materials available on record. Rule 24 of Order 41 reads as follows:- “Rule 24. Where evidence on record sufficient, Appellate Court may determine case finally. - Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resetting the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds.” 8. Sri Singh has further argued that since the objector i.e. respondent was a transferee – pendente lite, it was not necessary to determine the question raised by him by the Munsif – II, Buxar, whereas, learned Munsif - II, Buxar, had already adjudicated and dismissed the Miscellaneous Case filed by the respondent. In support of his argument that pendente lite objection raised by the transferee was not required to be determined under the provision of Order 21 Rule 97 (1) read with Rule 101 of the C.P.C., learned counsel has referred to a judgment of the Hon’ble Apex Court reported in A.I.R. 1998 SUPRREME COURT 1754 (Silverline Forum Pvt. Ltd. v. Rajiv Trust and another). Particularly, he has referred to paragraph no. 10 of the said judgment. For better appreciation, it would be relevant to quote the same, which is as follows:- “10. It is true that R. 99 of O. 21 is not available to any person until he is dispossessed of immovable property by the decree – holder. Rule 101 stipulates that all questions “arising between the parties to a proceeding on an application under Rule 97 or Rule 99” shall be determined by the executing Court, if such questions are “relevant to the adjudication of the application”. A third party to the decree who offers resistance would thus fall within the ambit of Rule 101 if an adjudication is warranted as a consequence of the resistance or obstruction made by him to the execution of the decree. A third party to the decree who offers resistance would thus fall within the ambit of Rule 101 if an adjudication is warranted as a consequence of the resistance or obstruction made by him to the execution of the decree. No doubt if the resistance was made by a transferee pendente lite of the judgment - debtor, the scope of the adjudication would be shrunk to the limited question whether he is such transferee and on a finding in the affirmative regarding that point the execution Court has to hold that he has no right to resist in view of the clear language contained in Rule 102. Exclusion of such a transferee from raising further contentions is based on the salutary principle adumbrated in Section 52 of the Transfer of Property Act. When a decree - holder complains of resistance to the execution of a decree it is incumbent on the execution Court to adjudicate upon it. But while making adjudication, the Court is obliged to determine only such question as may be arising between the parties to a proceeding on such complaint and that such questions must be relevant to the adjudication of the complaint. The words “all questions arising between the parties to a proceeding on an application under Rule 97” would envelop only such questions as would legally arise for determination between those parties. In other words, the Court is not obliged to determine a question merely because the resistor raised it. The questions which executing Court is obliged to determine under Rule 101, must possess two adjuncts. First is that such questions should have legally arisen between the parties, and the second is, such questions must be relevant for consideration and determination between the parties, e.g. if the obstructor admits that he is a transferee pendente lite it is not necessary to determine a question raised by him that he was unaware of the litigation when he purchased the property. Similarly, a third party, who questions the validity of a transfer made by a decree – holder to an assignee, cannot claim that the question regarding its validity should be decided during execution proceedings. Hence, it is necessary that the questions raised by the resistor or the obstructor must legally arise between him and the decree-holder. Similarly, a third party, who questions the validity of a transfer made by a decree – holder to an assignee, cannot claim that the question regarding its validity should be decided during execution proceedings. Hence, it is necessary that the questions raised by the resistor or the obstructor must legally arise between him and the decree-holder. In the adjudication process envisaged in Order 21, Rule 97(2) of the Code, execution Court can decide whether the question raised by a resistor or obstructor legally arises between the parties. An answer to the said question also would be the result of the adjudication contemplated in the sub –section. 9. In sum and substance, learned counsel for the appellant has argued that since the respondent had got the land transferred by his vendors, namely, Md. Atik Ahmad and Bibi Sabiha Khatoon; immediately after filing of suit by them as Title Suit No. 220 of 1996, the respondent’s objection was not relevant for its adjudication. Moreover, the appellant’s father had already purchased the suit property in the year 1982, whereafter, a suit was filed by his father - Kedar Lal for evicting the tenant, who was already occupying the suit property and running a tea shop, namely, Batai Ram for his eviction, which was finally approved by the Hon’ble Supreme Court. Accordingly, the appellant was having absolute title over the suit property, and as such, the order of the learned Additional District Judge - cum - F.T.C. IV, Buxar, is liable to be set aside. 10. Sri Sukumar Sinha, learned senior counsel supports the order passed by the learned Additional District Judge - cum – F.T.C. IV, Buxar, in Miscellaneous Appeal No. 5 of 2009. He has argued that by way of remitting back the matter to the Munsif - II, Buxar, the learned Lower Appellate Court has committed no mistake. According to Sri Sinha, in a given case even though evidences are available before the Appellate Court, he may remit back the matter to the Lower Court for better appreciation and adjudication. In support of his argument regarding remanding the case by the Appellate Court to the Original Court, he has relied on a single bench judgment of this court reported in 2009(4) PLJR 651 (Jugal Kishore Khetan vs. Mohan Lal Khetan). In support of his argument regarding remanding the case by the Appellate Court to the Original Court, he has relied on a single bench judgment of this court reported in 2009(4) PLJR 651 (Jugal Kishore Khetan vs. Mohan Lal Khetan). It has further been argued that the so - called suit i.e. Title Suit No. 132 of 1982 which was filed in the name of eviction of Batai Ram was virtually a collusive approach of the appellant’ side to get possession from the respondent of the land in dispute. He submits that the respondent had purchased the disputed land through two registered sale deeds executed by Md. Atik Ahmad and Bibi Sabiha Khatoon, who were son and daughter of Bibi Sogra. The vendors had sold the disputed land to the respondent from their own share. He submits that the vendor of the father of the appellant was not having any remaining share in the portion of plot no. 1115 since entire land of his share was already transferred prior to execution of the sale deed in favour of the father of the appellant. He has argued that one can not transfer a property more than his own share, and as such, the sale deed executed in favour of the father of the appellant was insignificant. Sri Sinha, learned senior counsel for the respondent, has further argued that since obstructionist i.e. respondent had raised resistance, it was mandatory on the part of the learned Munsif - II, Buxar, to adjudicate the same, whereas, the learned Munsif - II, Buxar, had not decided as to whether the vendor of the appellant was having actually any remaining share which was to be transferred to the father of the appellant. This issue was not decided, and as such, the learned Lower Appellate Court has rightly remitted back the matter for adjudicating in view of Order 21 Rule 101 of the C.P.C. According to learned counsel for the respondent, the order impugned requires no interference and the appeal is liable to be rejected. 11. Besides hearing learned counsel for the parties, I have minutely examined entire record including evidences which were brought on record in Miscellaneous Case No. 2 of 2000 before the Munsif – II, Buxar. It goes without saying that if evidences are already available before the Appellate Court, the Appellate Court may examine entire evidences and decide the issue. 11. Besides hearing learned counsel for the parties, I have minutely examined entire record including evidences which were brought on record in Miscellaneous Case No. 2 of 2000 before the Munsif – II, Buxar. It goes without saying that if evidences are already available before the Appellate Court, the Appellate Court may examine entire evidences and decide the issue. Similarly, before the Lower Appellate Court entire evidence was already available on record, and as such, instead of remitting back the matter to the Munsif – II, Buxar, the learned Lower Appellate Court was required to examine the same and decide the issue. Since entire records are available before this court, this court has examined the same. In this connection it would be appropriate to refer to a judgment of the Hon’ble Apex Court reported in AIR 1999 S.C. 1125 (Ashwinkumar K. Patel v Upendra J. Patel and others). Particularly, in paragraph no. 7 of the said judgment the Hon’ble Apex Court has dealt with the power of the Appellate Court, which is quoted hereinbelow:- “7. In our view, the High Court should not ordinarily remand a case under Order 41 Rule 23 CPC to the lower Court merely because it considered that the reasoning of the lower Court in some respects was wrong. Such remand orders lead to unnecessary delays and cause prejudice to the parties to the case. When the material was available before the High Court, it should have itself decided the appeal one way or other. It could have considered the various aspects of the case mentioned in the order of the trial Court and considered whether the order of the trial Court ought to be confirmed or reversed or modified. It could have easily considered the documents and affidavits and decided about the prima - facie case on the material available. In matters Involving agreements of 1980 (and 1996) on the one hand and an agreement of 1991 on the other, as in this case, such remand orders would lead to further delay and uncertainty. We are, therefore, of the view that the remand by the High Court was not necessary.” 12. The learned Additional District Judge - cum – F.T.C. IV, Buxar, while remanding the matter has considered that the learned Lower Court though had noticed points raised on page no. We are, therefore, of the view that the remand by the High Court was not necessary.” 12. The learned Additional District Judge - cum – F.T.C. IV, Buxar, while remanding the matter has considered that the learned Lower Court though had noticed points raised on page no. 24 & 25 of its judgment and order, but same were not decided in view of Rule 101 Order 21 of the C.P.C., and as such, he had remanded back the matter to the Lower Court for fresh decision, whereas, fact remains that onus was on the respondent, who had raised obstruction to establish that he was rightful title owner of the property in dispute but same has not been established on his behalf. The learned Munsif – II, Buxar, has noticed that the land which was purchased by the father of the appellant in the year 1982 was transferred in favour of the respondent after filing of the Title Suit No. 220 of 1996. On perusal of the record, it is evident that the so - called vendors namely, Md. Atik Ahmad and Bibi Sabiha Khatoon, who had executed two sale deeds in favour of respondent/Md. Salahuddin on 24.10.1996, had filed a Title (Partition) Suit No. 220 of 1996 on 14.10.1996. The certified copy of the plaint of Title (Partition ) Suit No. 220 of 1996 has been got exhibited and marked as Exhibit -B. In the said Partition Suit, the plaintiffs had sought for following reliefs:- (a) A decree of partition to the extent of 3/8th in the property and declaration of their title in the suit property to the extent of 3/8th share. (b) For a declaration that in Khesra No. 1115, Khata No. 168/121 land measuring 10 Ft wide x 18 Ft long and 23 Ft wide x 30 Ft long mentioned in Schedule -2 was in the rightful title and possession of the plaintiffs and in entire suit property decree in respect of 3/8th share be prepared in favour of the plaintiffs. (c) To declare sale deed dated 13.11.1982 executed by Md. Akhtar in favour of the father of defendant no. 5 ( appellant herein) namely, Kedar Lal as forged, fictitious and void. (d) For a declaration that judgment and decree passed in Eviction Suit No. 132 of 1982 was not having any application to the plaintiffs [this was amended in view of order dated 17.12.1996]. Akhtar in favour of the father of defendant no. 5 ( appellant herein) namely, Kedar Lal as forged, fictitious and void. (d) For a declaration that judgment and decree passed in Eviction Suit No. 132 of 1982 was not having any application to the plaintiffs [this was amended in view of order dated 17.12.1996]. (e) For restraining the defendants from changing the nature of the land in question, besides other reliefs. 13. On perusal of paragraph no. 9 of the plaint of Title (Partition) Suit No. 220 of 1996 it is evident that plaintiffs had accepted that Batai Ram was their tenant. The said suit was filed by one Soyab Akhtar Siddiqui on the basis of power of attorney executed by Md. Atik Ahmad and Bibi Sabiha Khatoon/plaintiff no. 1 & 2. After filing of the suit, a petition under Order 39 Rule 1 & 2 read with Section 151 of the C.P.C. was filed on behalf of plaintiffs in Title Suit No. 220 of 1996, which was finally dismissed on 24.1.1997 by Sub Judge – III, Buxar. Certified copy of order dated 24.1.1997 in Title Suit No. 220 of 1996 has been brought on record and marked as Exhibit -G. From the order dated 24.1.1997 in Title Suit No. 220 of 1996, it further appears that on 26.11.1996 status quo order was passed, and finally, status quo order dated 26.11.1996 and injunction petition was rejected on 24.1.1997. The respondent before the Munsif – II, Buxar, had also produced certified copy of two sale deeds purported to be executed on 24.10.1996. The sale deeds were executed by Md. Atik Ahmad and Bibi Sabiha Khatoon in favour of Md. Salahuddin/respondent of the present appeal. These sale deeds are dated 24.10.1996, which were marked as Exhibits - X & X/1. It is admitted case that two sale deeds which were got executed in favour of the respondent/Md. Salauddin were registered on commission basis. Meaning thereby, that vendors had not gone to the Registry Office. It is admitted case that registry was made on commission basis at the place of respondent/Md. Salahuddin. It is the case of the appellant that by putting fictitious person, in collusion with the officials of Registry Office, in a cryptic way, sale deeds in respect of suit property were got executed on commission basis, whereas, no reason was assigned for getting the sale deeds registered on commission basis. Salahuddin. It is the case of the appellant that by putting fictitious person, in collusion with the officials of Registry Office, in a cryptic way, sale deeds in respect of suit property were got executed on commission basis, whereas, no reason was assigned for getting the sale deeds registered on commission basis. It is also clear as per evidence of AW No. 15, Subhan Ali that vendors were hale and hearty. It is also a admitted fact that the Registry Office was hardly about 100-150 Ft away from the Buxar Nagarpalika which was near disputed land, and even then, instead of preferring to go before the Registrar of the Registry Office, the sale deeds were got executed on commission near the suit property. Regarding health of vendors namely, Md. Atik Ahmad and Bibi Sabiha Khatoon, AW No. 15 Subhan Ali has made statement in paragraph no. 18 of his cross - examination. If the sequence of fact is noticed minutely, it can be inferred that the sale deeds in favour of respondent are not beyond cloud of doubt. The vendors of respondent only on 14.10.1996 had filed a suit vide Title (Partition) Suit No. 220 of 1996, and thereafter, they filed injunction petition in which status quo order was passed on 26.11.1996, and as such, transfer of the suit land by Md. Atik Ahmad and Bibi Sabiha Khatoon on commission basis on 24.10.1996 appears to be doubtful. In any event, once Md. Atik Ahmad and Bibi Sabiha Khatoon had filed a suit vide Title (Partition) Suit No. 220 of 1996 relating to the same property, only within ten days of filing of the suit, they were not at all entitled to execute sale deeds in respect of the suit property in favour of respondent. Moreover, in Title Suit No. 220 of 1996 besides other reliefs, the vendors of respondent/Md. Salahuddin had claimed for their share in the suit property, and as such, without any adjudication, they were not authorized to execute sale deeds, and as such, the transaction was a sham transaction which was done only with a view to defeat the right of the appellant to get delivery of possession of the suit property in Execution Case No. 16 of 1988, which was filed after the judgment and decree in Title Suit No. 132 of 1982. It was finally approved by the Hon’ble Apex Court. It was finally approved by the Hon’ble Apex Court. So far as the title of the appellant over the suit property is concerned, from the evidence on record it appears that he was having right title over the suit property. The father of the appellant Kedar Lal had purchased the suit property through registered sale deed executed by Choudhary Md. Ali Akhtar Hussain, S/o Choudhary Md. Khalil on 13.11.1982, which has been brought on record from the side of the appellant in Miscellaneous Case No. 2 of 2000 as Exhibit - 3. In Title (Partition) Suit No. 220 of 1996, which was filed by Md. Atik Ahmad and Bibi Sabiha Khatoon (vendors of respondent) in paragraph no. 9 of the plaint it has been accepted that Batai Ram was their tenant. For eviction of Batai Ram from the suit property, father of the appellant had filed Title Suit No. 132 of 1982, which was initially dismissed, but appeal was allowed against which, Second Appeal was preferred by Batai Ram before this court, which was dismissed, and finally, judgment and decree against Batai Ram was approved up to the Hon’ble Supreme Court. The father of the appellant had purchased the suit property in the year 1982 and eviction suit was also filed in the same year, but none had raised any objection from the side of the vendors. However, once execution case was at advanced stage, a new case was made out and Md. Atik Ahmad and Bibi Sabiha Khatoon suddenly emerged and gave power of attorney to one Md. Soyab Akhtar Siddiqui for filing partition suit and Title (Partition) Suit No. 220 of 1996 was filed on 14.10.1996. So far as holder of power of attorney namely, Md. Soyab Akhtar Siddiqui is concerned, the appellant before the court below had specifically taken the stand that he was none else but own brother of respondent/Md. Salahuddin. This stand was specifically taken in paragraph no. 2 of evidence of OPW No. 17 Anil Kumar Sinha (appellant), which was not got controverted in his cross - examination. Same stand was taken in the reply filed by the appellant to the objection petition dated 20.1.2000 in Miscellaneous Case No. 2 of 2000. This stand was taken in paragraph no. This stand was specifically taken in paragraph no. 2 of evidence of OPW No. 17 Anil Kumar Sinha (appellant), which was not got controverted in his cross - examination. Same stand was taken in the reply filed by the appellant to the objection petition dated 20.1.2000 in Miscellaneous Case No. 2 of 2000. This stand was taken in paragraph no. 4 of the reply, which was filed on 15.4.2006, which is kept in File - A of the record of Miscellaneous Case No. 2 of 2000. The appellant before the Munsif - II, Buxar, had also produced 12 tax receipts issued by Buxar Nagarpalika, which have been got marked as Exhibit – A to A/12. Perusal of tax receipts shows that the suit property was recorded in the name of Choudhary Akhtar Hussain and Choudhary Majhar Hussain. 14. After going through the evidences and materials on the record the Court is of the opinion that for just decision in the present case, prima facie the evidences brought on record are sufficient to establish that the learned Munsif – II, Buxar, has rightly rejected the Miscellaneous Case No. 2 of 2000. This court has examined the evidences which were brought on record in Miscellaneous Case No. 2 of 2000, only for being satisfied as to whether order passed by learned Munsif - II, Buxar dated 31.3.2009 was justified or not. 15. Any observation of this Court in this order may not prejudice either party of Title (Partition) Suit No. 220 of 1996. In view of the evidences, which have been noticed above, this court is satisfied that learned Munsif –II, Buxar, had rightly rejected the Miscellaneous Case No. 2 of 2000, which was filed by respondent raising obstruction in Execution Case No. 16 of 1988. So far as claim of vendors of respondent namely, Md. Atik Ahmad and Bibi Sabiha Khatoon is concerned, that is subject matter of Title Suit No. 220 of 1996. The learned Lower Appellate Court, even though evidences were already available before him, has erroneously remanded back the matter to the Munsif - II, Buxar, and set aside the order of the Munsif – II, Buxar . Atik Ahmad and Bibi Sabiha Khatoon is concerned, that is subject matter of Title Suit No. 220 of 1996. The learned Lower Appellate Court, even though evidences were already available before him, has erroneously remanded back the matter to the Munsif - II, Buxar, and set aside the order of the Munsif – II, Buxar . So far as Jugal Kishore Khetan Case (supra) is concerned, which was relied upon by learned counsel for respondent, the court is of the opinion that the said judgment has got no direct bearing with the fact and circumstances of the present case. In the said case main issue was as to whether in an execution case objector’s petition without registering a separate case was required to be rejected or not. In the said case plaintiffs - decree holders had challenged an order passed by the Additional District Judge setting aside an order passed in execution case and remanding the matter to the executing court for fresh consideration and decision on application filed by intervenor under Order 21 Rules 98 & 99 read with Section 151 of the C.P.C., whereas, in the present case objector’s petition was entertained in an execution case and a separate case as Miscellaneous Case No. 2 of 2000 was instituted and order was passed by the Munsif - II, Buxar. 16. Accordingly, the court is of the opinion that it is a fit case for interference with the order passed by learned Additional District Judge – cum - F.T.C. IV, Buxar, in Miscellaneous Appeal No. 5 of 2009, and accordingly, judgment and order dated 7.12.2009 passed by learned Additional District Judge - cum - F.T.C. IV, Buxar, in Miscellaneous Appeal No. 5 of 2009 is hereby set aside and the present appeal stands allowed.