JUDGMENT & ORDER(ORAL) This second appeal at the instance of plaintiff in Title Suit No. 1 of 1997 has been preferred challenging the concurrent findings of the learned courts below. 2. Plaintiff instituted Title Suit No. 1/1997 in the Court of Munsiff No.1 at Goalpara against Principal Defendants No. 1 to 8 who are the legal heirs of his own brother and against three Proforma Defendants who are his two brothers and one sister. The case of the plaintiff is that suit land originally belonged to one Prasanna Kumar Ghosh who having died in the year 1962 his four sons, namely, Paresh, Sadananda, Pratul and Pabitra and one daughter, Sujita and their widowed mother Sailaja inherited the property in equal shares. Paresh subsequently died leaving behind three sons, namely, defendants No. 1, 2 & 3, his widow, defendant No. 4 and four daughters, namely, defendants No. 5 to 8. It is the case of the plaintiff that after death of Prasanna Kumar Ghosh the property was amicably partitioned among all the legal heirs and by such partition the Schedule-B property within Schedule-A described in the plaint fell in the share of the plaintiff. This Schedule-B property is the Eastern half of Schedule-A land alongwith the three rooms of the partitioned house. The Eastern half of Schedule A land with other three rooms fell in the share of Paresh Ghosh, the predecessor-in- interest of defendants No. 1 to 8. The plaintiff claimed that subsequent to such amicable settlement a Memorandum of Family Settlement was made by the legal heirs of Prasanna Kumar Ghosh reducing the particulars of partition into writing and all the legal heirs of Prasanna Kumar Ghosh subscribed their respective hands to that document. Accordingly they took possession of their respective shares exclusively without any let or hindrance from other co-sharers. Plaintiff started exclusively possessing Schedule-B property. His mother Sailaja used to live with him and after her death in the year 1982, her share measuring 10 lechas of land also came under his share. 3. The plaintiff stated that he being a government employee was transferred to Lakhipur whereupon he kept the house under lock and key and shifted to the place of posting. Under such circumstances, on 10.06.1988 the defendants No. 1 to 8 broke upon the room and possessed it forcibly. 3. The plaintiff stated that he being a government employee was transferred to Lakhipur whereupon he kept the house under lock and key and shifted to the place of posting. Under such circumstances, on 10.06.1988 the defendants No. 1 to 8 broke upon the room and possessed it forcibly. Having come to know about the same plaintiff and his wife returned to Goalpara on 15.06.1988 and raised protest, however, to no avail. Then he instituted a proceeding under Section 145 Cr.P.C. before the learned Executive Magistrate, Goalpara on 29.06.1988 but the Executive Magistrate without deciding the matter relegated the party to Civil Court by his order dated 13.07.1996. Under such compelling circumstances, the plaintiff instituted the suit praying for declaration that he was exclusively owner of the property described at Schedule-B to the plaint by virtue of family settlement made in 1967 and for recovery of khas possession thereof by evicting the Principal Defendants, their men, employees, agents etc. 4. The Principal defendants by filing written statement denied the case of the plaintiff as to existence of a family settlement among the legal heirs of Prasanna Kumar Ghosh. It was stated that the plaintiff was given separate land measuring 1 Katha 5 lechas at Goalpara which was sold to somebody else and then he left the place for good to stay at Lakhipur. He got the petty land and also a plot of land at Guwahati. 5. With these averments and by denying the title of the plaintiff over Schedule-B land principal defendants prayed for dismissal of the suit with cost. The Proforma Defendants No. 1, 2 and 3 being the other legal heirs of Prasanna Kumar Ghosh submitted a joint written statement and thereby they supported the plaintiff specifically stating that there was a family settlement among all the legal heirs of Prasanna Kumar Ghosh and that plaintiff Pabitra Ghosh got Schedule-B property and that the western part of schedule-A fell in the share of Paresh Ghosh, the predecessor-in-interest of Principal Defendants No. 1 to 8. Upon such contention of the parties, the learned trial Court by judgment and decree dated 22.05.2000 decreed the suit of the plaintiff as against which the Proforma Defendants preferred Title Appeal No. 9 of 2000 in the Court of learned Civil Judge at Goalpara. Upon such contention of the parties, the learned trial Court by judgment and decree dated 22.05.2000 decreed the suit of the plaintiff as against which the Proforma Defendants preferred Title Appeal No. 9 of 2000 in the Court of learned Civil Judge at Goalpara. The learned First Appellate Court allowed the appeal and remanded the case to the learned trial Court for deciding the same afresh by judgment dated 15.10.2001. 6. On remand, the trial Court dismissed the suit of the plaintiff by judgment and decree dated 26.03.2002 holding that Ext.-1, Memorandum of Family Settlement having been signed by plaintiff who was a minor at that time, was inadmissible in evidence and as such plaintiff did not acquire any right, title and interest to Schedule-B property. It was claimed that all along Paresh Ghosh and after his death the Proforma Defendants were in possession of the land. The plaintiff this time preferred Title Appeal No. 9 of 2002 in the Court of learned Civil Judge at Goalpara. This title Appeal was also dismissed by judgment and order dated 06.01.2003 upholding the finding of the learned trial Court on the ground that Ext.-1 having been found to inadmissible there was no question of dispossession of the plaintiff from the suit land. 7. It is this judgment which has been challenged by the plaintiff before this Court in the present second appeal. 8. On perusal of the two judgments passed by the learned Courts below, it appears that the trial Court framed as many as 9 issues out of which issues No. 4 & 5 are the vital issues. Issue No. 4 is in regard to truthfulness or otherwise of family arrangement claimed to have taken place in the year 1967 whereas issue No. 5 is in regard to plea of dispossession of plaintiff in the month of June, 1988 for the land described at Schedule-B of the plaint. The issues are quoted below: (i) Whether there is any cause of action for this suit? (ii) Whether the suit is maintainable in its present form? (iii) Whether the suit is barred by limitation? (iv) Whether the ‘suit land’ and the eastern half of the house described in Schedule- ‘B’ of the plaint were allotted to the plaintiff in the family arrangement in 1967? (ii) Whether the suit is maintainable in its present form? (iii) Whether the suit is barred by limitation? (iv) Whether the ‘suit land’ and the eastern half of the house described in Schedule- ‘B’ of the plaint were allotted to the plaintiff in the family arrangement in 1967? (v) Whether the plaintiff possessed the suit land and eastern half of the suit house and he was dispossessed by the defendants in the month of June ‘1988’? (vi) Whether the plaintiff is entitled to a decree for possessions of the suit land and eastern half of the suit house described in Schedule-B, by evicting the defendants, their men, women, agents etc. therefrom? (vii) Whether the plaintiff is entitled to a Mesne-profit @ 1,500/- p.m. (viii) Whether the plaintiff is entitled to a permanent injunction after the recovery of possession? (ix) To what relieves the plaintiff is entitled to under law and equity? 9. The plaintiff examined three witnesses including himself as PW2, whereas his elder brother Sadananda Ghosh (Proforma Defendant No.1) was examined as PW1. His another brother Pratul Ghosh was examined as PW3. Defendants on the other hand examined defendant No. 1, Uttam Kumar Ghosh as DW1, one Akhil Kr. Ghosh as DW2, one Nani Gopal Ghosh as DW3 and Prabhat Kumar Ghosh as DW4. 10. This Court while admitting the second appeal on 27.05.2003 has framed the following substantial question of law: “Whether the lower appellate Court illegally rejected exhibit -1 as inadmissible in evidence by totally ignoring the fact that the father of the defendant No. 1 and the husband of the defendant No. 4 signed the said document proved as exhibit 1(3) and on the basis of the said agreement late Paresh Ghosh occupied the said house and property while acting on the said agreement.” 11. I have heard Mrs. P. Bhattacharjee, learned counsel for the appellant and Mrs. T. Goswami, learned counsel for the respondents. 12. The issue No. 4 referred to above as well as the substantial question of law framed by this Court reveals that the real dispute between the parties is as to whether there was a Family Settlement among the legal heirs of Prasanna Kumar Ghosh in the year 1966 followed by execution of a memorandum to that effect in the year 1967. It would appear from the judgments passed by learned courts below that the only point on which the suit of the plaintiff was dismissed was that Ext.-1 was inadmissible in evidence. The learned Courts below had rejected Ext.-1 as inadmissible in evidence on the ground that Ext.-1 was executed in the year 1967 when plaintiff being a signatory thereof was only 8 years of age and being a minor he should not have given his signature on its documents. In so doing none of the learned Courts below considered the oral evidence of PW1, 2 & 3. It is necessary to mention here that in paragraphs 5, 6 and 7 of the plaint that there was family arrangement after death of Prasanna Kumar Ghosh. This family arrangement was subsequently reduced into writing in the form of a Memorandum recognising the shares of the signatories in the properties left by Prasanna Kumar Ghosh. It was specifically pleaded as follows: “The memorandum of suit family arrangement has been made not for transfer of properties involved therein but it simply describes the portions of properties allotting to each of the signatories of the memorandum relinquishing antecedent title over other part of the properties by receiving their respective portions allotted to each of them and recognising the portions allotted to each of them. The memorandum was prepared after making of the family arrangement and kept for the purpose of record for making necessary mutation and in the present Survey and Settlement Operation, mutation of the properties has been made and the properties have been divided for the purpose of revenue records in accordance with the said memorandum and possession over the portion of the properties allotted to each of them.” 13. On the face of such pleading the oral evidence of PW1, 2 and 3 has immense importance. PW1 Sadananda Ghosh was a signatory to Ext.1 (Memorandum of Family Settlement). He was about 22 years old when the Memorandum of Family Settlement was executed in the year 1967. He being one of the elder brothers of the plaintiff supported him saying that there was a family arrangement after death of Prasanna Kumar Ghosh and that such family arrangement was subsequently reduced into writing by executing Ext.-1 Memorandum. He was about 22 years old when the Memorandum of Family Settlement was executed in the year 1967. He being one of the elder brothers of the plaintiff supported him saying that there was a family arrangement after death of Prasanna Kumar Ghosh and that such family arrangement was subsequently reduced into writing by executing Ext.-1 Memorandum. PW-1 (Sadananda Ghosh) being one of the legal heirs of Prasanna Kumar Ghosh proved not only his signature but also signature of Poresh Ghosh as Ext.-1(3) and Ext.-1(4). This Paresh Ghosh is none other the predecessor-in-interest of the Principal Defendants No. 1 to 8. He proved signature of Paresh Ghosh, his own signature and the thumb impression of his mother Sailaja Ghosh. In the same breadth, PW3 (Pratul Kumar Ghosh) also came to the witness box and supported the plaintiff (his brother) saying that there was family arrangement among all the legal heirs of Prasanna Kumar Ghosh wherein predecessor-in-interest was Principal Defendants No. 1 to 8 who got Western half of the Schedule-A property with three rooms whereas the Eastern half containing other three rooms fell in the share of plaintiff (Pabitra Kumar Ghosh). This witness also testified that Ext.-1 was signed by all legal heirs including their widowed mother (Saileja Sundar Ghosh), Paresh Kumar Ghosh (Predecessor of defendants No. 1 to 8), his elder brother Sadananda (PW1) and of course plaintiff (Pabitra Kumar Ghosh) himself. May be plaintiff was a minor at that time but there cannot be any doubt that on death of his father (Prasanna Kumar Ghosh) his property immediately and automatically devolved on all the legal heirs including the plaintiff. Minority of plaintiff could not be a bar for acquiring title by inheritance. Having so situated as in 1967 when Ext.-1 Memorandum of Family Settlement was executed, Schedule-B property fell in his share. True, being a minor at that time he would have the 14. On the other hand DW1 (Uttam Kumar Ghosh) claimed that he was born in the year 1967 but he learnt from his mother that there was no family partition as claimed by the plaintiff and other witnesses of the plaintiff who are none other than co-sharers of the plaintiff. Defendant No. 4 the mother of DW1 was not examined and thus the evidence of DW1 became a hearsay evidence. DW2 (Akhil Ch. Defendant No. 4 the mother of DW1 was not examined and thus the evidence of DW1 became a hearsay evidence. DW2 (Akhil Ch. Ghosh) claimed to be a tenant under Paresh Ghosh with respect to the Schedule-B property. According to him he used to pay rent to Paresh Ghosh and plaintiff was never in possession of the Schedule-B property. In course of the cross-examination he stated that DW4 used to call him brother and that in course of his deposition in favour of the DW4 he described himself to be brother of the DW4. He further stated that in two rooms of the big house he was a tenant. DW3 (Nani Gopal Ghosh) on the other hand claimed that there was no partition of the property among the legal heirs of Prasanna Kumar Ghosh but in his examination-in-chief he admitted that the defendants No. 1 to 8 were possessing the suit land and house for last 20 years and during that period sometimes plaintiff also used to come. In course of his cross-examination he admitted that he did not have any knowledge about internal matter of the plaintiff and the defendants. DW4 Prabhat Chandra Ghosh stated that he was not aware as to whether there was any partition among the legal heirs of Prasanna Kumar Ghosh. He could not say in which room plaintiff used to reside before he left for Lakhimpur. 15. It would appear form perusal of the evidence of both the sides that defendant did not make any attempt to establish that signatures of Paresh Ghosh Ext.1(3) and Ext.1(4) are not his signatures on Ext.-1. No attempt was made from the side of the defendants to discredit PW1 & 3 who are two other brothers of the plaintiff when they specifically claimed that there was family partition among all the legal heirs. Beside Ext.-1 Memorandum of Settlement was signed by Poresh, Sadananda, Pratul and Saileja Ghosh apart from the plaintiff. If signatures of Paresh and other legal heirs including their mother appear at Ext.1 there is no reason on the part of the learned trial Court to hold the same as inadmissible evidence. Above all family settlement actually took place orally. This family settlement was proved by leading oral evidence through PW1 to PW3 but the learned courts below did not consider the oral evidence of these witnesses at all. Above all family settlement actually took place orally. This family settlement was proved by leading oral evidence through PW1 to PW3 but the learned courts below did not consider the oral evidence of these witnesses at all. On consideration of the circumstances it appears that the plaintiff successfully proved the existence of oral family settlement prior to execution of Ext.-1 Memorandum of Family Settlement. Under such circumstances the lone substantial question of law referred to above is decided in favour of the plaintiff-appellant. Consequently the judgment passed by the learned courts below are set aside and the suit of the plaintiff is decreed. 16. No order as to costs.