ORDER 1. Heard Mr. D. Mazumdar, learned Senior Counsel appearing for the appellants. Also heard Mr. A. Alam, learned counsel representing the respondents. 2. This second appeal has been preferred against the concurrent judgment and decree dated 23-03-2006 passed by the learned District Judge, Karimganj in Title Appeal No. 04/2005 thereby affirming the judgment and decree dated 09-05-2005 passed by the learned Civil Judge (Sr. Div.), Karimganj decreeing the suit filed by the plaintiffs. 3. The plaintiffs case as projected in the plaint is that the father of the plaintiff No. 1 and husband of plaintiff No. 2 i.e. Badaruddin was the sole owner of the schedule 1 land which is covered by Settlement Survey Dag No. 330 of Final Khatiyan No. 485 of Mouza Lamajuar Part-I in Paragana Chapghat in the district of Karimganj pertaining to the erstwhile permanently settled Estate Taluk No. 9537/1585 Saharulla, kitta ‘Gajirgul’. Badaruddin purchased 1 Kedar of land lying in the eastern part of the 1st schedule land and the rest part of the schedule-1 land was inherited from his father. After the Government acquired the proprietary rights of the permanently Settled Estate Taluk, Badaruddin became land holder in respect of the said land and during settlement operation held 35/36 years back, the entire 1st schedule land had been recorded in the name of Badaruddin in the settlement record. Accordingly, Final Khatiyan No. 485 of Mouza Lamajuar Part-I had been issued in the name of Badaruddin. After the death of Badaruddin his only son i.e. plaintiff No. 1, his wife plaintiff No. 2 and the daughters i.e. proforma defendant No. 10 to 17 became the owners of the 1st schedule land. Thereafter, under the mutual family agreement and partition, the plaintiff No. 1 had became the full and absolute owners of the 1st schedule land and he has been possessing the said land and enjoying usufructs thereof in assertion of right, title and interest over the said land. 4. It is further stated that late Najir Ali i.e. the father of the defendant No. 6, Monjir Ali i.e. the father of proforma defendant No. 18 and 19 as well as Badaruddin were three brothers who had equal shares in respect of the homestead land in schedule-2. 4. It is further stated that late Najir Ali i.e. the father of the defendant No. 6, Monjir Ali i.e. the father of proforma defendant No. 18 and 19 as well as Badaruddin were three brothers who had equal shares in respect of the homestead land in schedule-2. In the year 1972, Monjir Ali permanently left for Bangladesh so as to live with his two sons and before leaving, 1/3rd share of Monjir Ali in the 2nd schedule land had been equally acquired by Badaruddin as well as Najir Ali, the same having been relinquished in their favour by Monjir Ali on the basis of a amicable settlement. In the aforesaid manner, Badaruddin had became the owner of half share of the land held by Monjir Ali in the homestead schedule-2 land over and above his 1/3rd share in the said plot of land. In other words Badaruddin had become the owner of ½ of the land described in schedule-2 of the plaint whereas Najir Ali had become the owner of the remaining ½ share of the land in schedule-2. The plaintiff has further pleaded that the defendant No. 6, had sold an area of 1 Jaisti land to the plaintiff No. 1 from his share in the 2nd schedule land. Beside the above, 15 Jaisties of land had been acquired by the Government for construction of E&D Bund from the original 2nd schedule land covered by settlement survey Dag No. 343. Thus the 2nd schedule land comprise of a total area of 3 Kedar land i.e. 90 decimals out of which the plaintiff No 1 was the owner of 46 decimals including his purchase made from the defendant No. 6. While the plaintiffs had been possessing the aforementioned plot of land described in schedule-1 and schedule-2 of the plaint, it had come to their knowledge that the defendant No. 6 had transferred the said plot of land in favour of defendant No. 1 to 5 by executing a deed of sale bearing No. 1262 of 2000 registered at the Bhangabazar Sub-Registry. On going through the said document after obtaining a certified copy, the plaintiffs could find that the defendant No. 6 had fraudulently created false and fabricated document in the form of sale deed No. 1262 by means of which an area of land indicated in the schedule -I of the plaint had been transacted in favour of the defendant No. 1 to 5 besides selling another area of 75 decimals pertaining to the 2nd schedule land. It is the case of the plaintiffs that the defendant No. 6 had no right, title and interest or possession over any part of the land described in schedule-1 and that said defendant No. 6 was not the owner of the 75 decimals of land included in 2nd schedule. However, notwithstanding the same the defendant Nos. 1 to 6, acting in collusion with the proforma defendant No. 7, 8, 9 and 20 had illegally created this document which has clouded the right, title and interest of plaintiff 5. On receipt of summons, the defendant No. 1 to 6 contested the suit by filing a joint written statement. Beside questioning the maintainability of the suit on the ground of want of cause of action, defects of parties as well as the same being barred by the principles of estoppels, acquiescence and waiver, the defendants have categorically pleaded that although the land described in schedule-1 of the plaint originally belong to Badaruddin i.e. father of the plaintiff No. 1 yet, subsequently the defendant No. 6 had acquired title and possession in respect of the said plot of land and has been enjoying the same since past 30 years without any interference from any corner. The pleaded stand of the contesting defendants is that the father of the plaintiff No. 1 Badaruddin had sold the 1st schedule land of the plaint to Monjir Ali through registered deed No. 691 dated 18-03-1964. Thereafter, Hazi Monjir Ali sold the said plot of land to Hazi Roisul Haque by executing registered deed of sale bearing No. 1751, dated 18-04-1970. Subsequently, Hazi Roisul Haque sold the said plot of land to the defendant No. 6 by executing registered deed of sale bearing No. 3069 dated 18-07-1970. Thereafter, Hazi Monjir Ali sold the said plot of land to Hazi Roisul Haque by executing registered deed of sale bearing No. 1751, dated 18-04-1970. Subsequently, Hazi Roisul Haque sold the said plot of land to the defendant No. 6 by executing registered deed of sale bearing No. 3069 dated 18-07-1970. Eventually, the defendant No. 6 sold the aforesaid plot of land in favour of the defendant No. 1 to 5 by executing the registered deed of sale bearing No. 1262 dated 23-06-2000 which is under challenge in the suit. 6. In respect of 2nd schedule land, the stand of the defendant is that Monjir Ali sold 1½ Kedar of land out of the 4 Kedars of land included in schedule-2 in favour of the defendant No. 6 by executing registered deed of sale bearing No. 3311, dated 05-09-1970. After the death of Najir Ali the defendant No. 6 along with his sisters Naseeba had inherited the share in respect of the schedule-2 land from their father. Therefore, the aforesaid share together with the land purchased by defendant No. 6 from Monjir Ali formed a part of the land described under schedule-2 of the plaint. It has also been stated that the homestead land has been in continuous physical occupation of the defendant No. 6. 7. The defendant No. 6 being in need of money having suffered losses in his business had sold the plots of land to the defendant No. 1 to 5 by executing registered deed of sale bearing No. 1262 for a consideration of Rs. 35,000/-. As such, the contesting defendants submits that there is no illegality or infirmity in the said registered deed of sale. On the basis of the same the defendants while praying for dismissal of the suit filed by the plaintiff had also made a counter-claim inter-alia seeking a declaration to the effect that the defendant No. 1 to 5 have got their right, title and interest over the schedule-2 land and for confirmation of possession in respect thereof; for declaration that the plaintiffs have got no right, title and interest over the schedule-2 land; for permanent injunction and for other consequently reliefs. 8. On the basis of the pleadings of the parties learned Trial Court had framed as many as five issues including one additional issue which are as follows: 1. Whether the suit is maintainable? 2. 8. On the basis of the pleadings of the parties learned Trial Court had framed as many as five issues including one additional issue which are as follows: 1. Whether the suit is maintainable? 2. Whether the plaintiff No. 1 has right, title and interest possession over the schedule 1 land and plaint and 46 decimal land in schedule 2 of the plaint? 3. Whether deed No. 1262 dated 23-06-2000 of Sub-Registrar’s office, Bhanga Bazar is void and fraudulent? 4. Whether the defendant No. 1 to 5 have got land holder right in respect of land described in Schedule 2 of W/S? Addl. Issue: 1. Whether the counter claim is barred by limitation? 9. Plaintiffs side had examined two witnesses and exhibited certain documents whereas the defendants side had examined four witnesses and submitted documentary evidence in support of their case. Upon hearing the learned counsel for the parties and on examination of the materials available on record the learned Trial Court had recorded findings in respect of issue No. 2, 3 and 4 in favour of the plaintiffs whereas the finding in respect of additional issue had been recorded against the defendants. Consequently, the plaintiff’s suit was decreed whereas the counter claim filed by the contesting defendants stood dismissed. 10. Being aggrieved and dissatisfied with the judgment and decree dated 09-05-2005 passed by the learned Trial Court in Title Suit No. 42/2000 the defendants as appellants preferred Title Appeal No. 04/2005 in the court of learned District Judge, Karimganj. From the records it appears that said appeal had been preferred by the defendants being aggrieved by that part of the judgment by which the plaintiffs’ suit had been decreed. However, apparently no appeal had been preferred by the defendants against the dismissal of the counter- claim and as such the said part of the judgment has attained finality. 11. After hearing the learned counsel for the parties, the learned First Appellate Court had passed judgment and decree dated 23-03-2006 thereby dismissing the appeal filed by the appellants/ defendants by affirming the judgment and order passed by the learned Trial Court. Being aggrieved by the judgment and decree dated 23-03-2006 passed in Title Appeal No. 04/2005 the appellants as defendants had approached this Court by filing the instant second appeal, which was admitted to be heard by framing the following substantial question of law: 1. Being aggrieved by the judgment and decree dated 23-03-2006 passed in Title Appeal No. 04/2005 the appellants as defendants had approached this Court by filing the instant second appeal, which was admitted to be heard by framing the following substantial question of law: 1. Whether the finding of the learned court below to the effect that the Exhibits D, E, F, G, H and I being the certified copies of the sale deeds though proved by the Defendants-appellants, are inadmissible, is sustainable in view of the provisions of Section 74(2) read with Section 65(e) of the Evidence Act, 1972. 12. Mr. Mazumdar, learned Sr. counsel appearing for the appellants/ defendants submits that it is the admitted position of fact that the land described in schedule-1 of the plaint originally belonged to Badaruddin i.e. the father of the plaintiff No. 1. However, from the pleadings as well as materials on record, more particularly, the certified copy of the Exhibit- D, E, F, H and I it was apparent that the said land was sold to number of persons and after changing hands several times, eventually the defendant No. 6 had purchased the land included in schedule-1 by means of registered deed of sale bearing No. 3069 dated 18-07-1970 (Exhibit-E). Thereafter, by means of registered deed of sale bearing No. 1262 dated 23-06-2000 (Exhibit-I), defendant No. 6 had sold the said plot of land to the contesting defendant No. 1 to 5. The plot of land in question was originally sold by Badaruddin to one Monjir Ali vide registered deed bearing No. 691, dated 18-03-1964 (Exhibit-D). Since the plaintiffs have failed to challenge the Exhibit-D which is the original registered sale deed by which Badaruddin had sold the land in schedule-1 in favour of Monjir Ali and having regard to the fact that no challenge has been made even to the subsequent sale deed viz. Exhibit-E and F as such, no decree declaring title of the plaintiff in respect of the schedule-1 could have been granted by the court below. 13. Mr. Mazumdar, further submitted that the only basis on which the learned Trial Court appears to have decreed the suit by holding the Exhibit-I sale deed as null and void appears to be the fact that the defendants have failed to prove Exhibit-D, E, F and I . 13. Mr. Mazumdar, further submitted that the only basis on which the learned Trial Court appears to have decreed the suit by holding the Exhibit-I sale deed as null and void appears to be the fact that the defendants have failed to prove Exhibit-D, E, F and I . Such a conclusion was drawn allegedly on account of the fact that the certified copies of these sale deeds had been tendered in evidence without complying with the requirement of Section 65(c) of the Indian Evidence Act. The Trial Court had held that since there was some discrepancy in the explanation given by the defendant regarding the actual reason for loss of the original deeds, the Court below held that the defendants had failed to lay the foundation within the meaning of section 65(c) of the Evidence Act so as to lead secondary evidence in the form of certified copies of the said sale deeds. 14. Mr. Mazumdar further submits that even assuming that learned Trial Court was right in interpreting the warrant of Section 65(c) of the Indian Evidence Act in the facts of the present case, even in that case the same could be a ground to decline a relief as prayed for in the counter claim. Once it had come to the knowledge of the plaintiffs that there was a series of sale deeds by which the land in question had changed hands several times starting from Exhibit-D which was executed by original owner Badaruddin in favour of Monjir Ali, a decree declaring title of plaintiff over the schedule-1 plot of land could not have been granted without expressly declaring such title documents as null and void. It was the burden of the plaintiffs to prove and establish by leading cogent evidence that the Exhibit-D sale deed was a fraudulent one which the plaintiffs had failed to discharge. 15. Per contra, Mr. A. Alam, learned counsel appearing for the respondents/ plaintiffs submits that although in the prayer portion of the plaints the relief for declaration of only the Exhibit-I sale deed dated 23-06-2000 has been made by the plaintiffs, yet, from a reading of the plaint as a whole it would be apparent that the plaintiffs have, by necessary implication, challenged the validity of all the connected deeds right from the sale deed dated 18-03-1964 (Exhibit-D). Mr. Mr. Alam submits that having regard to the background of the plaintiffs, the court should look at the substance of the pleading and not merely the form of the pleading of the plaint. He further submits that the decisions and conclusions arrived at by the learned Trial Court in respect of issue No. 2, 3 and 4 recording concurrent finding of fact in favour of the plaintiffs holding that they are entitle to declaration of right, title and interest in respect of the suit schedule land and also for cancellation of the sale deed Exhibit-I is based on cogent evidence on record and as such, same does not call for any interference in exercise of power under Section 100 of the CPC. 16. I have considered the rival submission made by and on behalf of the parties. In the instant case, bare reading of the plaint filed by the plaintiff will go to show that they are claiming title and possession of the suit schedule-1 land in their capacity as legal heirs of Badaruddin. There is no dispute over the fact that Badaruddin was the original owner of the schedule-1 land. Therefore, the plaintiffs would ordinarily be the owners of the schedule-1 land in their capacity of legal heirs of Badaruddin by way of right of inheritance unless it is found that Badaruddin had alienated the said plot of land during his life time. From the pleadings of the parties what is apparent is that contesting defendants had taken a categorical stand that the 1st schedule land has been sold by Badaruddin to Monjir Ali by registered deed No. 691, dated 18-03-1963, the certified copy of which had also been tendered in evidence by the defendants as Exhibit-D. The link sale deeds in the form of Exhibit-E, F and I had also been brought on record by the defendants in the form of certified copies of the said sale deed. The contesting defendants had taken a plea that since the aforesaid documents had been damaged in flood and had became completely illegible, the original had to be discarded as a result of which the defendants were compelled to produce secondary evidence of the said sale deeds in the form of certified copies. However, subsequently at the stage of evidence, it appears that defendant’s witnesses had made statement that the original sale deeds in question had been destroyed by fire. However, subsequently at the stage of evidence, it appears that defendant’s witnesses had made statement that the original sale deeds in question had been destroyed by fire. Taking note of such discrepancy in the explanation regarding non-availability of the original sale deeds, the learned Trial Court had held that the defendants have failed to discharge their burden cast by Section 65(c) of the Indian Evidence Act so as to permit them to produce secondary evidence in the form of the certified copies of the aforementioned sale deeds. Although the registered volume showing the contents of the certified copy of sale deed Exhibit-D, E, F and I had been called for and produce by the defendants in evidence, yet, the learned Trial Court had discarded the said evidence and therefore declined to decree the counter claim filed by the defendants. Be that as it may. Since no appeal has been preferred against the judgment and decree passed by the learned Trial Court dismissing the counter claim, no further 17. Further, from the a examination of the materials on record as well as judgment and decision passed by the court below it appears that the learned Trial Court had came to a conclusion that the sale deed dated 23-06-2000 was a fraudulent document on account of the fact that defendants had failed to prove the due execution of the sale deeds dated 18-03-1964, 18-04-1970, 18-07-1970 and 23-06-2000. Since the plaintiffs had challenged the sale deed dated 23-06-2000 it was incumbent upon the plaintiffs to lead cogent evidence to prove and establish that the sale deed was a fraudulent one. However, the plaintiffs appear to have failed to discharge that burden. On the contrary learned Trial Court appears to have been misplaced the burden of proof upon the defendants and thereby went on to hold that registered sale deed dated 23-06-2000 was a fraudulent deed merely because the defendants had failed to prove the same. Said conclusion drawn by the learned court below not being based on cogent evidence on record same is perverse in the eye of law, as such liable to be declared so. 18. Said conclusion drawn by the learned court below not being based on cogent evidence on record same is perverse in the eye of law, as such liable to be declared so. 18. Even in the case of land in 2nd schedule the defendants had categorically mentioned that Monjir Ali sold land measuring 1½ Kader out of the 4 Kedar land of 2nd schedule to the defendant No. 6 vide registered deed of sale bearing No. 3311, dated 05-06-1970 (Exhibit-G). However, despite such categorical pleadings the plaintiffs did not make any attempt to challenge the said sale deed (Exhibit-G). In case of a registered deed of sale there would always be presumption as regards its validity until and unless the contrary is proved. 19. Such being the position and having regard to the pleaded stand of the parties, it is not possible to hold that the plaintiffs would be entitled to a decree as prayed for in absence of any challenge made to the registered deed of sale beginning from original sale deed dated 18-03-1964. 20. In that view of the matter, the judgment and decree passed by the court below are not sustainable in law, as such same is quashed and set aside. The questions of law framed by this Court is decided accordingly in favour of the appellant and against the respondent/ plaintiff. The plaintiffs suit stands dismissed. In the result, this second appeal stands allowed. However, having regard to the facts and circumstance of the case, there would be no order as to cost. Registry to send back the LCR.