ORDER 1. Defendant in Title Suit No. 5 of 1998 of the Court of learned Civil Judge (Junior) Division No. 1 of Morigaon has preferred this second appeal challenging first appellate judgment and decree dated 19.02.2003 in Title Appeal No. 17 of 2002 of the Court of learned Civil Judge (Senior) Division at Morigaon. By this appellate judgment, suit of the plaintiff was decreed by reversing the decree of dismissal passed by the original Court in the main title suit. 2. Plaintiff, Sirajul Islam who is the respondent No. 1 in this appeal instituted Title Suit No. 5 of 1998 in the Court of learned Civil Judge (Junior) Division No. 1 at Morigaon against the present appellant as principal defendant No. 1 and four others as Proforma Defendants praying for declaration of his right, title and interest over Schedule-A land measuring 6 lechas covered by Dag No. 141/838 of Periodic Patta No. 174 of Village- Mikirigaon Kissam under Uttarkhula Mouza to the District of Morigaon. Case of the plaintiff is that land measuring 1 bigha 2 lechas originally belong to one Mokbul Hussain, father of Proforma defendant No. 6 and the same was covered by dag No. 141 of Periodic Patta No. 174. The total land under the patta was 1 bigha 2 lechas. During settlement operation, the whole land of 1 bigha 2 lechas inherited by the legal heirs of Mokbul Hussain was partitioned into smaller dags out of which one of his sons Md. Meraz Hussain got 6 lechas in the aforesaid dag and patta and thereupon a separate dag being Dag No. 838 under the said patta was curved out. All these developments took place in the year 1973. After death of Meraz Hussain this 6 lechas of land devolved on his son Anowar Hussain who by registered sale deed No. 1551 dated 08.10.1990 sold the same in favour of the plaintiff. Plaintiff thereupon obtained mutation in his favour in the records of rights. It is further stated that defendant No. 1 approached the plaintiff for constructing a room over 2 lechas of land which the plaintiff permitted as he was being transferred out in course of his employment. However, the remaining 4 lechas of land remained vacant. Plaintiff thereupon obtained mutation in his favour in the records of rights. It is further stated that defendant No. 1 approached the plaintiff for constructing a room over 2 lechas of land which the plaintiff permitted as he was being transferred out in course of his employment. However, the remaining 4 lechas of land remained vacant. Taking opportunity of the situation defendant No. 1 with the permission of the plaintiff constructed a temporary thatched house on 4 lechas of land and promised to pay rent for the land. But after nearly one year and a half, defendant No. 1 stopped paying rent as a whole. Thereafter in the month of August, 1997 plaintiff came back on retransfer and asked the defendant No. 1 to vacate the land described in Schedule-C so that he could make construction for a commercial complex. Although initially defendant agreed to vacate but ultimately did not vacate. It is under such circumstances, plaintiff served a notice on the defendant No. 1 through Lawyer asking him to vacate and after expiry of notice period ultimately was compelled to institute the suit for declaration of right, title and interest, confirmation of possession of Schedule-B land measuring 2 lechas and recovery of possession of land measuring 4 lechas described in Schedule-C to the plaint. 3. On being summoned defendant No. 1 appeared and filed written statement denying the case of the plaintiff and also stated his own fact in paragraph 14 of the written statement. According to defendant No. 1 one Gohin Sheikh was the original pattadar of the suit land. He died leaving behind his widow Ajibon Nessa, two sons Wahab and Subhan and a daughter Mofijan. All the sons and daughter predeceased Ajibon Nessa. They being unmarried at the time of death, Ajiban Nessa remained the only legal heir of Gohin Sheikh. Under such circumstances Ajibon Nessa brought one Amsor Ali as foster son and thereafter sold whole of the plot of land inheriting 1 bigha 2 lechas to Amsor Ali by registered sale deed dated 22.06.1991. This Amsor Ali in turn sold the entire suit land to Sarafat Ali Dewan by registered sale deed dated 11.02.2002. Sarafat Ali Dewan was the father of the defendant and so after his death defendant became the owner in possession of the suit land. This Amsor Ali in turn sold the entire suit land to Sarafat Ali Dewan by registered sale deed dated 11.02.2002. Sarafat Ali Dewan was the father of the defendant and so after his death defendant became the owner in possession of the suit land. The defendant further stated that the predecessor of the plaintiff Mokbul Hussain fraudulently prepared a sale deed from Ajibon Nessa and sought to dispossess her from the suit land. Ajibon Nessa thereafter instituted Title Suit No. 52 of 1962 in his Court of learned Munsiff at Nagaon for her specific inertest and also for confirmation of possession. Suit was decreed in favour of Ajibon Nessa at the appellate stage. There was a compromise between the parties. However defendant stated that none of the records of this case were available from the Court at Nagaon. The defendant further claimed that Serafat Ali Dewan and thereafter the defendant No. 1 has been possessing the land since 1962 and Mokbul Hussain has no right, title and interest thereto. Consequently plaintiff did not acquire any title by purchase of any sale deed from Mokbul Hussain. It was prayed that suit be dismissed with cost. 4. On the basis of the aforesaid rival contention of the parties, the learned trial Court framed as many as 9 issues which are quoted below: 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 bad for non-joinder and mis-joinder of parties? 4. Whether the suit is barred by the law of limitation and principle of adverse possession? 5. Whether the suit is under valued, court fee paid is insufficient? 6. Whether the suit is barred by the principle of estoppel, waiver and acquiescence? 7. Whether the defendant and his father have been in possession of the suit land since the year 1962? 8. Whether the plaintiff has right, title and interest over the suit land? 9. To what relief, if any the parties are entitled to? 5. Plaintiff examined 4 witnesses including himself while defendant examined 2 witnesses out of which DW1 is the Principal Defendant No.1. 8. Whether the plaintiff has right, title and interest over the suit land? 9. To what relief, if any the parties are entitled to? 5. Plaintiff examined 4 witnesses including himself while defendant examined 2 witnesses out of which DW1 is the Principal Defendant No.1. The learned trial Court by his judgment and decree dated 30.04.2002 dismissed the suit of the plaintiff holding that plaintiff failed to prove his right, title and interest on the basis of the documents whereas defendant could prove acquisition of title on the basis of Ext.-Ka. This judgment passed by the trial Court was brought in appeal in Title Appeal No. 17 of 2002 of the Court of learned Civil Judge (Senior) Division at Morigaon. Learned first appellate Court by his judgment and decree dated 19.02.2003 allowed the appeal, reversed the finding of the learned trial Court and thereby decreed the suit of the plaintiff in entirety declaring his right, title and interest with respect to A-Schedule land, confirmation of possession with respect of B-Schedule land measuring 2 lechas and recovery of possession of 4 lechas of land under Schedule-C land. This judgment and decree dated 19.02.2003 has been brought under challenge in the present second appeal. 6. This Court while admitting the second appeal on 12.08.2003 framed as many as 3 substantial questions of law and the same are quoted below: 1. Whether the learned lower appellate Court erred in law in holding that the vendor of the plaintiff had saleable right over the suit land? 2. Whether the learned lower appellate Court erred in law in holding that the father of the defendant/appellant did not acquire right, title and interest over the suit land on the strength of the registered sale deed (Ext.Ka)? 3. Whether the learned lower appellate court misread and misconstrued the Exhibit 4, 5, 6 and 7 put in record as additional evidence in the appellate court relating to Title Suit No. 52 of 1962? 7. I have heard Mr. A.C. Sarma, learned counsel for the appellant. None appears for the respondent although the names of the learned counsel have been shown in the Cause List. I have perused the lower court records including the exhibits and depositions of both sides. 8. The substantial question of law under S. Nos. 1 & 2 referred to above are based on the same set of facts and same reasoning. None appears for the respondent although the names of the learned counsel have been shown in the Cause List. I have perused the lower court records including the exhibits and depositions of both sides. 8. The substantial question of law under S. Nos. 1 & 2 referred to above are based on the same set of facts and same reasoning. In that view of the matter both these two substantial questions of law can be answered jointly. They are accordingly taken up together. It is the case of the plaintiff that original owner of the land was one Mokbul Hussain. He owned and possessed 1 bigha 2 lechas of land under Dag No. 141. Upon his death, his legal heirs inherited the property and thereupon one of his sons, Meraz Hussain got 6 lechas of land in his share. In the meantime there was settlement operation and in the process new dag was created out of Periodic Patta No. 174. This new dag was curved out from original Dag No. 141. New Dag No. 838 measuring 6 lechas of land is the Schedule-A land in the present case. Meraz Hussain died leaving behind his son Anowar Hussain and it is this Anowar Hussain who sold the land to Sirajul Islam by registered sale deed No. 1551 dated 08.10.1990. The original of the sale deed is Ext.-2. Ext.-3 series are the revenue paying receipts by the plaintiff with respect to suit land whereas Ext.-1 is the Jamabandi. Ext.-1 shows that Mokbul Hussain is the original owner. Name of his son Meraz Hussain appears at serial No. 4 of the Jamabandi and name of Anowar Hussain also figures at serial No. 7. It appears that on 30.10.1973 Dag No. 141 was bifurcated and 6 lechas was curved out in favour of the Meraz Hussain. Upon death of Mokbul Hussain his property devolved in favour of Mokbul Ali Khan. By an order dated 07.02.1990 of Sub Deputy Collector aforesaid Dag No. 838 measuring 6 lechas was mutated in favour of the plaintiff Sirajul Islam on the basis of purchase. Thus the assertion of the plaintiff that there was a document of title (Ext.-2) in his favour and that he possessed the same on the basis of purchase is also evidenced by Ext.-1 Jamabandi. Thus the assertion of the plaintiff that there was a document of title (Ext.-2) in his favour and that he possessed the same on the basis of purchase is also evidenced by Ext.-1 Jamabandi. Now, the only objection which the defendant has raised while challenging title of the plaintiff is on the basis of assertion that suit land originally belonged to one Gohin Sheikh and all his sons and daughters having died issueless whole of the estate of Gohin Sheikh devolved on Ajibon Nessa, the widow of Gohin Seikh who on turn sold the suit land to Amsor Ali by sale deed dated 22.06.1961. This Amsor Ali transferred the suit land along with other land to Sarafat Ali on 11.02.2002 by a registered deed and his name was also duly mutated in the records of rights. The case of the defendant, therefore, is based on purchase from Amsor Ali. The further pleaded case of the defendant is that Mokbul Hussain who has been described as the original owner by plaintiff in his plaint was not the original owner but prepared a forged sale deed from Ajibon Nessa and on the strength of his deed he sought to disposses Ajibon Nessa from the suit land. Although in the pleading it was stated that Ajibon Nessa approached the village panchayat for redressal of her grievance and thereupon Mokbul Hussain was supposed to re-execute a sale deed in favour of the plaintiff but as he failed to keep his word Ajibon Nessa instituted suit and thereupon right, title and interest of Ajibon Nessa was established. On the face of such pleadings of the defendant No. 1, plaintiff brought Exts. 4, 5, 6 & 7 on record under Order XLI Rule 27 of the Code of Civil Procedure at the appellate stage. The defendant raised an objection before the first appellate Court in course of hearing of the first appeal to the effect that its documents were beyond pleadings of the plaintiff and so should not be taken into consideration. The learned first appellate Court refused to accept this contention on the ground that fact in regard to institution of suit by Ajibon Nessa was a pleaded fact of the defendant. The learned first appellate Court refused to accept this contention on the ground that fact in regard to institution of suit by Ajibon Nessa was a pleaded fact of the defendant. Defendant claimed that Ajibon Nessa got a decree with respect to suit land and there was a compromise thereafter at appellate stage but did not call for the documents and rather stated that case records of Title Suit No. 52 of 1962 instituted by Ajibon Nessa was lost from Nagaon Court. It was further stated in the written statement that the dispute between the parties was compromised at the appellate stage. It is in this context plaintiff led evidence at appellate stage and disproved the pleading of the defendant. The Exts.-4, 5, 6 and 7, therefore, was proved to be within the pleadings of the parties and therefore the learned first appellate Court considered these documents while passing its judgment. The learned first appellate Court also considered Ext.-1 Jamabandi and Ext.-Ga Jamabandi adduced by the defendant and thereupon held that name of Mokbul Hussain appeared in the records of rights for all these years and so the case of the defendant that plaintiff did not acquire any title cannot be countenanced. 9. This being the factual position of the case it is necessary to see as to what are contents of exhibits 4, 5, 6 & 7. Ext.-4 is the certified copy of judgment dated 31.01.1963 passed by learned Sadar Munsiff at Nowgong in Title Suit No. 53 of 1962. The suit was instituted by Amsor Ali and Ajibon Nessa against Mokbul Hussain. It was a suit for specific performance of contract. Ext.-4 reveals that Ajibon Nessa entered into an agreement for sale with Mokbul Hussain on 24.03.1960 on payment of Rs. 300/- for purchase of the suit land. She was handed over possession of the land but ultimately Mokbul Hussain did not execute any sale deed. However on 22.6.1961 she executed registered sale deed in favour of Amsor Ali with respect to the suit land in the anticipation of getting sale deed from Mokbul Hussain and thereafter suit was instituted for specific performance of contract. She was handed over possession of the land but ultimately Mokbul Hussain did not execute any sale deed. However on 22.6.1961 she executed registered sale deed in favour of Amsor Ali with respect to the suit land in the anticipation of getting sale deed from Mokbul Hussain and thereafter suit was instituted for specific performance of contract. An issue was framed in that case as to whether plaintiff Ajibon Nessa and for that Amsor Ali acquired any right, title and interest to the suit land on the basis of agreement dated 24.03.1960 for sale executed by Mokbul Hussain and registered sale deed dated 22.06.1961 executed by Ajibon Nessa in favour of Amsor Ali. The learned trial Court in Title Suit No. 53 of 1962 found that plaintiffs did not acquire any right, title and interest to the suit land as there was merely an agreement for sale on 24.03.1960 and there was no execution of sale deed by the owner Mokbul Hussain. However, having so found the suit was decreed for specific performance of contract with direction to the defendant of that suit to execute and registered a sale deed in favour of Ajibon Nessa. On perusal of Ext. 4 it is clear that Ajibon Nessa did not acquire any title to the suit land but got a decree of specific performance with respect to the suit land. There is nothing on record to come to a finding that this decree was put into execution or decree was complied with. That being the position, the plaintiff No. 2 of Title Suit No. 53 of 1962 admitted valid title of Mokbul Hussain to the suit land on one hand and did not got any sale deed on the other hand with respect to the suit land by putting the decree into execution. The Ext.-4, therefore, answers to the first substantial question of law that vendor of the plaintiff held saleable interest to the suit land. This is because plaintiff purchased the land from Anowar Hussain who on turn inherited the same from Meraz Hussain who is the son of Mokbul Hussain. Once Tile Suit No. 53 of 1962 establish title of Mokbul Hussain to the suit land the consequence is that his successive legal heirs, namely, Meraz Hussain and Anowar Hussain also inherited title to the suit land and so Anowar Hussain had saleable interest to the suit land. Once Tile Suit No. 53 of 1962 establish title of Mokbul Hussain to the suit land the consequence is that his successive legal heirs, namely, Meraz Hussain and Anowar Hussain also inherited title to the suit land and so Anowar Hussain had saleable interest to the suit land. Anowar Hussain is the vendor of Sirajul who is the plaintiff herein and so first substantial question of law is accordingly decided in favour of the plaintiff and against the present appellant. Consequently, the second substantial question of law also has to be decided against the defendant. This is because defendant claims title on the basis of inheritance to 1 bigha 2 lechas of land from his father Serafat Ali Dewan who on turn has purchased the land from Amsor Ali by aforesaid sale deed dated 22.06.1961 who purchased the land from Ajibon Nessa. As stated above vendor of Amsor Ali was Ajibon Nessa who did not get any sale deed from original owner Mokbul Hussain on the basis of agreement dated 24.03.1960 and that is why filing of Title Suit No. 53 of 1962 for specific performance of contract had become necessary. Ext.-4 itself contains a recital that Ajibon Nessa did not acquire any title to the suit land and so there was no question of Amsor Ali deriving any title from sale deed dated 22.06.1961. If the Ext.-4 was put into execution and thereupon Ajibon Nessa was favoured with a valid sale deed in that event the position would have been different. In the case in hand Ajibon Nessa executed sale deed in favour of the Amsor Ali either on the anticipation that a sale deed would be executed in her favour by Mokbul Hussain or in the wrong impression that she had acquired title to the land on the basis of the agreement dated 24.03.1960. The learned Court in Title Suit No. 53 of 1962 found that no title was acquired by Ajibon Nessa pursuant to the agreement dated 24.03.1960 but she was entitled to a decree of specific performance of contract and accordingly the suit was decreed. The learned Court in Title Suit No. 53 of 1962 found that no title was acquired by Ajibon Nessa pursuant to the agreement dated 24.03.1960 but she was entitled to a decree of specific performance of contract and accordingly the suit was decreed. If there would have been subsequent acquisition of a title by Ajibon Nessa then by operation of the doctrine of ‘Estate Feeding Estoppel’ Amsor Ali would have been acquired title in view of the law laid down by the Privy Council in the case of Rajapakse v. Fernando ( AIR 1920 PC 216 ). The defendant by disclosing in the written statement that there was a suit by Ajibon Nessa against Mokbul Hussain paved the way for adducing of evidence at the appellate stage and thus it came to light that the predecessor of the defendant admitted title of Mokbul Hussain. This being the position the objection raised by the defendant herein that Mokbul Hussain did not have title automatically fails. Once it is found that Ajibon Nessa did not acquire title on the basis of agreement dated 24.03.1960 consequently Amsor Ali also did not acquire any title by sale deed dated 22.06.1961 executed by Ajibon Nessa. Sale of the suit land by Amsor Ali, therefore, by registered sale deed dated 11.04.2002 also cannot convey any title to vendee Serafat Ali Dewan who is the father of the defendant No.1. The substantial question no. 2, therefore, is decided against the appellant/defendant holding that Ext.-‘K’ sale-deed did not vest any title on the father of the defendant No. 1. 10. The third substantial question of law relates to misreading and misconstruing Ext.-4, 5, 6 & 7. Ext.-4 is the certified copy of judgment in Title Suit No. 53 of 1962 which has been discussed above. The Ext.-5 is the certified copy of order dated 19.11.1963 passed in Title Appeal No. 7 of 1963 which arose from Ext.-4 judgment. It appears that this appeal was allowed at the concession of the plaintiff/respondent. This order, however, was brought under challenge in second appeal No. 49 of 1964 before this Court and by judgment and order dated 25.11.1967 this Court dismissed the second appeal vide Ext.-7. Ext.-6 is the decree in this Title Appeal No. 7 of 1963. It appears that this appeal was allowed at the concession of the plaintiff/respondent. This order, however, was brought under challenge in second appeal No. 49 of 1964 before this Court and by judgment and order dated 25.11.1967 this Court dismissed the second appeal vide Ext.-7. Ext.-6 is the decree in this Title Appeal No. 7 of 1963. Ext.-4, 5, 6 & 7, therefore, are certified copies of judgment passed by learned Munsiff in the Court of Sadar, Nowgon and whereas exhibit-5 is the decree passed by the first appellate Court in Title Appeal No. 7 of 1963 proved against Ext.-4 was actually allowed on concession granted by the plaintiff/respondent and which is allowing all appeal by the first appellate Court was upheld by the second appellate Court vide Ext.-7. The third substantial question of law, therefore, is barred and decided in favour of the appellant in so far as it relates to Ext.-5. The first appellate Court wrongly construed Ext.-5 to be the order of dismissing the appeal whereas vide Ext.-5 the appeal preferred by defendant in Title Suit No. 53 of 1962 was allowed on concession being granted by the plaintiff/respondent. 11. Even due to aforesaid misreading of Ext.-5 the legal consequence of the Ext.-4, 5, 6 has not suffered any major change. Vide Ext.-4 predecessor-in-interest of the defendant side had claimed a decree of specific performance of contract against Mokbul Hussain the predecessor-in-interest of the plaintiff. Vide Ext.-4 decree for specific performance of contract was passed by trial Court and by Ext.-5 this decree was set aside. Implication of Ext.-5, 6 and 7, therefore, is that there was no decree of specific performance of contract in favour of Ajibon Nessa. Even Amsor Ali preferred second appeal before this Court and his claim of title by operation of Section 43 of the Transfer of Property Act was discarded by this Court vide Ext.-7 and so ultimately Amsor Ali did not acquire any title. Consequently his sale in favour of the father of the defendant also a mere paper transaction without conveying any title. Thus neither father of the defendant nor the defendant did acquire any right, title and interest to the suit land. 12. Since all the substantial questions of law mentioned at serial Nos. 1 & 2 above are decided in favour of the respondent/plaintiff and against the present appellant, the second appeal is devoid of any merit. Thus neither father of the defendant nor the defendant did acquire any right, title and interest to the suit land. 12. Since all the substantial questions of law mentioned at serial Nos. 1 & 2 above are decided in favour of the respondent/plaintiff and against the present appellant, the second appeal is devoid of any merit. 13. It is accordingly dismissed. 14. No order as to costs. 15. Send down the record immediately after framing decree.