JUDGMENT & ORDER : 1. Heard Mr. S. Banik, learned counsel, appearing on behalf of the appellant/plaintiff and Mr. N. Dhar, learned counsel, appearing on behalf of the respondents/defendants. 2. The present appellant, as the plaintiff, filed T.S. No. 201/2001 in the court of the learned Civil Judge (Junior Division) No. 1, Karimganj against the present respondents/defendants. The facts pleaded in the plaint by the appellant/plaintiff are that Parija Bibi @ Khanam was the owner of the land described in schedule-I of the plaint. On her death, her brother Haris Uddin @ Haris Ali acquired the title of the land described in schedule-II of the plaint. The said land is the suit land and it is a part of the schedule-I of the plaint. Haris Uddin @ Haris Ali was enjoying the said land by constructing a house over it and later on he sold the same alongwith the existing house in favour of the plaintiff/appellant and delivered possession thereof by executing a registered sale deed No. 1455 dated 2.5.1988. On the death of Haris Uddin @ Haris Ali, his widow Alek Bibi was allowed to reside temporarily in the house standing over the suit land as licensee of the plaintiff/appellant. The defendant/respondent Nos. 1 to 7 without having interest or possession over the suit land, illegally encroached a portion of the suit land and constructed 2 temporary houses about one year ago from the date of filing the suit. The said land is described in schedule- II of the plaint. The said defendants/respondents also attempted to dispossess Alek Bibi, the licensee under the plaintiff/appellant from the remaining portion of the suit land. Accordingly, the plaintiff/appellant filed the suit for declaration of his land holding rights over the suit land described in schedule-II of the plaint and confirmation of the possession thereof, except land 3. The defendant Nos. 1 and 2 alongwith the written statement filed counter claim praying for declaration of their joint land holder rights over the land described in schedule of the written statement and declaration of maliki right of defendant/respondent Nos. 1 and 2 over the suit house standing on the suit land. 4. The defendants/respondents through their joint written statement took the defence that the owner of the suit land was Parija Bibi @ Khanam as admitted by the plaintiff/appellant. Haris Uddin @ Haris Ali is the step brother. 1 and 2 over the suit house standing on the suit land. 4. The defendants/respondents through their joint written statement took the defence that the owner of the suit land was Parija Bibi @ Khanam as admitted by the plaintiff/appellant. Haris Uddin @ Haris Ali is the step brother. The said Haris Uddin @ Haris Ali is the purported vendor of the plaintiff/appellant. As Parija Bibi @ Khanam was issue less and she brought her own sister’s daughter and gave her marriage with the defendant/respondent No. 1. After the said marriage, Parija Bibi @ Khanam gifted 1 poa, 3 jasti 8 pons of land in favour of the defendant/respondent Nos. 1 and 2 by executing a registered gift deed dated 3.5.1975. Later on, a sum of Rs. 2,000.00 was given by the respondent/defendant No. 2 to the husband of the Parija Bibi @ Khanam, on loan. As the said borrowed amount was unable to be repaid by the said husband, as such Parija Bibi @ Khanam sold 1 poa land in favour of the defendant/respondent No. 2. The said land is situated just adjacent of southern most part of the land described in schedule-I of their written statement which was sold by executing the registered sale deed No. 3139/82, dated 19.6.1982. 5. The said land was sold to them and handed over the possession thereof. The remaining part of the land was mortgaged by the husband of Parija Bibi @ Khanam to one Abdul Jalil by executing a deed of sale dated 5.11.1982 with a condition to reconveyance, if the consideration money is paid within a period of three years. The husband of Parija Bibi @ Khanam could not repay the said money and on request, the defendant/respondent No. 1 repaid the same with a condition that Parija Bibi @ Khanam and her husband would execute a re-sale deed in favour of the defendant/respondent No. 1. Abdul Jalil on receipt of the said amount handed over the possession to defendant/respondent No. 1 and since then the respondents/defendants are possessing the entire land. However, re-sale deed could not be executed due to illness of Parija Bibi @ Khanam and thereafter she died. The defendant/respondent Nos. 1 and 2 are the owners of the entire land possessing the same by constructing various houses over the suit land. As against the said counter claim, the plaintiff/appellant filed his written statement. 6. However, re-sale deed could not be executed due to illness of Parija Bibi @ Khanam and thereafter she died. The defendant/respondent Nos. 1 and 2 are the owners of the entire land possessing the same by constructing various houses over the suit land. As against the said counter claim, the plaintiff/appellant filed his written statement. 6. On the basis of the pleadings, following issues were framed:- (1) Whether there is any cause of action for the suit? (2) Whether the suit is maintainable in the present form and manner? (3) Whether the plaintiff has any right, title, interest and possession over the suit land? This issue is modified as under, “Whether the plaintiff has any right, title and interest over the suit and schedule land?” (4) Whether the plaintiff is entitled to the decree as prayed for? (5) Whether the defendants have any right, title, interest and possession over the suit land? (6) Whether the defendants are entitled to the decree as prayed for in the counter claimed? The following additional issues are framed:- (7) Whether the registered Kabala No. 1455 dated 2.5.1988 of Bhangabazar Sub-Registry office is void, inoperative and liable to be cancelled? 7. The parties to the suit adduced evidence both oral and documentary by examining various witnesses. The learned trial court decided the counter claim in favour of the defendants/respondents and dismissed the suit of the plaintiff/appellant vide judgment and decree dated 21.6.2004. 8. Being aggrieved, the plaintiff/appellant preferred Title Appeal No. 54/2004 in the court of the learned Civil Judge, Karimganj challenging the judgment and decree passed by the trial court. The said T.A. No. 54/2004 was dismissed vide judgment and decree dated 15.3.2007 by the first appellate court. 9. The first appellate court upheld the findings of the trial court in Issue Nos. 3 and 7 and came to the conclusion that Haris Uddin @ Haris Ali, the vendor of the plaintiff/appellant of the suit land had no title derived from Parija Bibi@ Khanam by way of any inheritance inasmuch as at the time of death of Parija Bibi @ Khanam, she left behind one full blooded brother, who inherited the land by way of inheritance. The first appellate court considered the evidence of the witnesses produced by the parties to the suit, more specifically the witnesses produced by the plaintiffs/appellant including that of the plaintiff/appellant himself. The first appellate court considered the evidence of the witnesses produced by the parties to the suit, more specifically the witnesses produced by the plaintiffs/appellant including that of the plaintiff/appellant himself. The plaintiff/appellant, as the PW 1, supporting his contention made in the plaint deposed that on the death of Parija Bibi @ Khanam, Haris Uddin @ Haris Ali acquired the title over the land of Parija Bibi @ Khanam, who died issueless and thereafter the said Haris Uddin @ Haris Ali, sold the land to him by executing a registered sale deed No. 1455 dated 2.5.1988 (Ext. 1). The first appellate court while appreciating the evidence took note of the deposition of PW 3, who deposed that out of the 4 brothers of Parija Bibi @ Khanam (full blooded), one of the brothers was still living at the time of death of Parija Bibi @ Khanam. The said evidence remains unshattered on record and as such the first appellate court up held the findings of the trial court holding that the plaintiff had no right, title and possession over the suit land and the Ext. 1 is liable to be cancelled and dismissed the appeal. 10. Thereafter, the plaintiff/appellant preferred the second appeal which was admitted on 22.6.2007 on the following substantial questions of law. (1) Whether the sale deed dated 2.5.88 i.e. Exhibit-1 could have been declared null and void at the instance of defendants when the alleged only surviving brother and heir of the original owner raises no dispute? (2) Whether the learned appellate court was right in upholding the decree of the learned trial court without considering the merits of the counter claim? (3) Whether Exhibit-C was proved in accordance with law? 11. Mr. Banik, learned counsel, appearing on behalf of the appellant/plaintiff submits to the effect that the fact that one of the brothers was living at the time of death of Parija Bibi @ Khanam could not be proved by any cogent evidence. In fact, Mr. Banik pointed out referring the written statement/counter claim that it was pleaded by the defendants/respondents that one full blooded brother namely, Antui Ali was living at the time death of Parija Bibi @ Kanam. In fact, Mr. Banik pointed out referring the written statement/counter claim that it was pleaded by the defendants/respondents that one full blooded brother namely, Antui Ali was living at the time death of Parija Bibi @ Kanam. On the other hand, PW 3, Tunu Sheikh deposed that out of 4 brothers, 3 were dead at the time of death of Parija Bibi @ Khanam and the said deceased brothers including Antui Ali also died even then, both the courts below held that one of the full blooded brothers was living at the time of death of Parija Bibi @ Khanam, which is perverse. Moreover, the defendant/respondent Nos. 1 and 2 claimed their right, title and interest over the first schedule suit land of the plaint as described in the schedule of the written statement-cum-counter claim on the basis of the gift deed Ext. “C” purportedly executed by Parija Bibi @ Khanam in favour of the defendant/respondent Nos. 1 and 2. However, the said Ext. “C” could not be proved that the same was executed by Parija Bibi @ Khanam. The learned courts below failed to take note of the said fact and wrongly passed the judgment and decree by the trial court which was upheld by the first appellate court. Accordingly, the 12. Mr. Dhar, learned counsel appearing on behalf of the defendants/respondents, countering the submission of Mr. Banik, submits that the plaintiff/appellant claiming his right, title, interest over the suit land, has the bounden duty to prove the title of his vendor in order to succeed in the suit. The plaintiff/appellant (PW 1) utterly failed to discharge the said burden, if the evidence of all the witnesses are considered. Supporting the findings of the learned courts below, Mr. Dhar submits that the burden taken by the defendants/respondents in dislodging the claim of the plaintiff/appellant with regard to the title of Haris Uddin @ Haris Ali, the vendor of the plaintiff/appellant has been duly discharged. Taking note and pointing to the deposition of PW 3, Tunu Sheikh, Mr. Dhar submits that it is pertinent to note that out of the 4 (four) numbers of full blooded brothers of Parija Bibi @ Khanam, one brother was still living at the time of death of Parija Bibi @ Khanam and as such there arose no question of inheritance of the properties of Parija Bibi @ Khanam by Haris Uddin @ Haris Ali. The plaintiff/appellant failed to examine Alek Bibi, wife of Haris Uddin @ Haris Ali, the vendor of the plaintiff/appellant of the suit in order to discharge the burden on the plaintiff/appellant. Such being the position, Mr. Dhar submits that there is no scope at all for interference on the findings of the courts below, which are concurrent in nature. Accordingly, he submits that the second appeal is liable to be dismissed. 13. Considered the submissions of both the learned counsels. Perused the evidence of the parties and the case records. For easy entry to adjudicate the dispute between the parties to the suit, it would be appropriate to consider the genealogical tree of the family of Parija Bibi @ Kanam. Genealogical Tree of the Family of Parija Bibi, @ Khanam Sheikh Katan Safina Bibi (wife) Joynab Bibi (wife) Rashid Ali (son) Ashad Ali (son) Antai Ali (son) Rahim Ali (son) Jarina Bibi (daughter) Parija Bibi (daughter) Harish (son) Badu Bibi (Daughter Nazma Khatun (daughter) 14. From the said genealogical tree it is seen that Sheikh Katan had two wives, Safina Bibi and Joinab Bibi. Parija Bibi @ Khanam is the daughter of Safina Bibi alongwith four brothers and one sister, Jarina. On the other hand, Joinab Bibi had one son, Haris Uddin @ Haris Ali and one daughter, Badu Bibi. Thus, it is seen that Parija Bibi @ Khanam and Haris Uddin @ Haris Ali, the vendor of the plaintiff/appellant are the step brother and sister. Parija Bibi @ Khanam admittedly was the owner of the schedule-I land, which covers both schedules -II and III land of the plaint. The said first schedule land is described in schedule of the written statement-cum-counter claim of the defendants/respondents. The defendant/respondent No. 2 is the daughter of Jarina Bibi, the full blooded sister of Parija Bibi @ Khanam. 15. The said daughter i.e., the defendant/respondent No. 2 was looked after by Parija Bibi @ Khanam and she gave in marriage the said defendant/respondent No. 2 with the defendant/respondent No. 1. The rest of the defendant/respondent Nos. 3 to 7 are the sons of the defendant Nos. 1 and 2. The schedule- I land of the plaint covers IInd schedule land on the western side. From the boundaries of the second schedule land, it is seen that on the eastern side, possession of the defendants/respondents are shown. The rest of the defendant/respondent Nos. 3 to 7 are the sons of the defendant Nos. 1 and 2. The schedule- I land of the plaint covers IInd schedule land on the western side. From the boundaries of the second schedule land, it is seen that on the eastern side, possession of the defendants/respondents are shown. It is seen that the defendants/respondents are possessing the land of schedule-I and plaintiff/appellant claims a part of schedule-I land as described in the second schedule land of the plaint. The third schedule land of the plaint is within the second schedule land of the plaint. The defendants/respondents claim the said land described in schedule-I of the plaint as apparent from the counter claim. 16. The plaintiff/appellant claim the second schedule land forming a part of first schedule land by way of purchase vide Ext. 1, the registered sale deed No. 1455 dated 2.5.1988, purportedly executed by Haris Uddin @ Haris Ali, the step brother of Parija Bibi @ Khanam. On the other hand, the defendant/respondent Nos. 1 and 2 claim the first schedule land based on title on the strength of registered gift deed Ext. “C” executed by Parija Bibi @ Khanam in favour of them on 3.5.1975. The Ext. “C” has been proved by DW 3, Abdul Mannaf, who was the attesting witness and who identified the executant, Parija Bibi @ Khanam. The other witness was Abdul Baich Choudhury, husband of Parija Bibi @ Khanam. 17. Now, if the deposition of DW 3, the attesting witness/identifier of the executant, Parija Bibi @ Khanam in the said Ext. “C” is considered, it is seen that the execution of Ext. “C” has been proved, the Hon’ble Apex Court in Seth Beni Chand (Since Dead) -Vs. Smti Kamala Kunwar & Others, reported in AIR 1977 SC 63 , held that attestation is meant signing of a document to signify that the attestor is a witness to the execution of the document. Section 3 of the Transfer of Property Act, 1882 defined the word, “ attested”, as it is the personal acknowledgement of his signature introduced, which indicates that the word “ attested” means that a person has signed the document by way of testimony to the fact that he saw it executed. The said witness DW 3 deposed that Parija Bibi @ Khanam executed Ext. “C” in his presence. The said witness DW 3 deposed that Parija Bibi @ Khanam executed Ext. “C” in his presence. Her husband was also present on that day at the time of execution of the same. The said piece of evidence remained unshattered on record. Under such circumstances, it can very well be concluded that the said Ext. “C”, the registered sale deed has been duly proved with regard to its execution by Parija Bibi @ Khanam. Accordingly, the substantial question of law No. 3 is decided in the affirmative. 18. The case of the plaintiff/appellant is that he purchased the second schedule land from Haris Uddin @ Haris Ali vide Ext. No. 1. The defendant/respondent Nos. 1 and 2 pleaded in the written statement-cum-counter claim that on the strength of the title derived from Parija Bibi @ Khanam, they have been possessing first schedule land and the plaintiff/appellant has/had no possession, not to speak of title. It is also pleaded that Haris Uddin @ Haris Ali was staying on a portion of the first schedule land as permitted by Parija Bibi @ Khanam along with his wife Alek Bibi. Alek Bibi is still living in the house of the defendants/respondents. 19. It is also pleaded that at the time of death of Parija Bibi @ Khanam, one of her full blooded brother, Antui Ali was living and her husband Abdul Baich Choudhury was also living. In such a situation, inheritance on the left over property of Parija Bibi @ Khanam would devolve on her full blood brother and husband. Both the courts below came to the findings on the basis of the deposition of PW 3, Tunu Sheikh that out of 4 brothers 3 died during the life time of Parija Bibi @ Khanam and at the time of death of Parija Bibi @ Khanam, one full blood brother was still living. The evidence of PW 3 can very well be relied on inasmuch as he is fully aware of the genealogical tree of Sheikh Kattan, the father of Parija Bibi@ Khanam. There is no material piece of evidence to conclude that the findings of both the courts below to that effect are wrong. 20. The evidence of PW 3 can very well be relied on inasmuch as he is fully aware of the genealogical tree of Sheikh Kattan, the father of Parija Bibi@ Khanam. There is no material piece of evidence to conclude that the findings of both the courts below to that effect are wrong. 20. Considering the materials on record, the findings of the courts below can very well be arrived that Haris Uddin @ Haris Ali had no right, title and interest over the suit land to sell the property belonging to Parija Bibi @ Khanam. On the other hand, the defendant/respondent Nos.1 and 2 had derived title over the first schedule land of the plaint and the one described in the schedule of the written statement-cum-counter claimed on the basis of Ext. “C”, the gift deed, which has been proved by DW 3, Abdul Mannaf as discussed hereinabove. Under such circumstances, the plaintiff/appellant by filing the suit and claiming the right title and interest over a portion of schedule-I land of the plaint has created a cloud on the title of the defendant/respondent Nos. 1 and 2 over the schedule property described in the counter claim. Accordingly, the defendant/respondent Nos. 1 and 2 are the proper persons to seek for declaration that Ext. 1, registered sale deed is null and void and for its cancellation by way of the counter claim. Accordingly, the substantial question of Law No. 1 is also decided in the affirmative. 21. The court below considering the evidence on record in the proper perspective and on the basis of such appreciation of the evidence and pleadings of the parties have come to the concurrent findings and under such circumstances, the first appellate court cannot be held that it upheld the decree of the trial court without considering the merits of the counter claim. By way of the counter claim, the defendant/respondent Nos. 1 and 2 pleaded the necessary facts on the basis of which they have derived the title of the first schedule land of the plaint and the first appellate court took note of the facts pleaded in the written statement cum counter claim. 22. The first appeal was preferred by the plaintiff/appellant challenging the judgment and decree by way of which the learned trial court dismissed the suit of the plaintiff/appellant and decreed the counter claim. 22. The first appeal was preferred by the plaintiff/appellant challenging the judgment and decree by way of which the learned trial court dismissed the suit of the plaintiff/appellant and decreed the counter claim. The first appellate court examined the issues with regard to claim of the plaintiff/appellant on the suit property. The first appellate court discussed the material piece of evidence in order to examine, if the plaintiff/appellant is entitled for the reliefs sought for by him and while doing so, the pleadings of the counter claim are taken note of by the first appellate court and came to a conclusion that the defendants/respondents were able to prove the facts pleaded in the counter claim by way of evidence both documentary and oral. Under such circumstances, it cannot be held that the first appellate court has never considered the merit of the counter claim. Accordingly, the substantial question No. 2 is also decided in the affirmative. 23. This second appeal has no merit and accordingly, the same is dismissed. Send back the LCR. No costs