JUDGMENT & ORDER : 1. This second appeal by the plaintiffs is directed against the judgment and decree dated 08/05/2008 passed by the learned Civil Judge, Senior Division, Barpeta in T.A. No. 42/2006 reversing the judgment and decree dated 21/08/2006 passed by learned Munsiff No. 2 in Title Suit No. 29/1997 and partly decreeing the suit of the plaintiffs. 2. The facts leading to the present second appeal are that land measuring 18 bigha 1katha 17 lechas covered by Dag No. 233 and 234 and Periodic Patta No. 4 originally belonged to one Uday Chandra Barman. Dag No. 233 comprised of land measuring 12 bigha 4 katha 11 lechas and Dag No. 234 comprised of land measuring 5 bigha 2 katha 6 lechas. Lalit Ch. Mandal acquired title over the entire 18 bighas 1 katha 17 lechas of the suit land covered by Periodic Patta No. 4 by right of purchase. Later on, Lalit Ch. Mandal sold land measuring 10 bigha 2 katha 6 lechas in favour of his son Rakhal Ch. Mandal in the year 1973. The land sold to Rakhal Ch. Mandal comprised of the entire land covered by Dag No. 234 and a portion of the land from Dag No. 233. The original plaintiff Lt. Ganesh Ch. Sutradhar purchased the entire suit land by two registered sale deeds on 10/04/1981 from Rakhal Ch. Mandal and Lalit Ch. Mandal. Rakhal Ch. Mandal sold land measuring 9 bigha 2 katha 6 lechas and Lallit Ch. Mandal also sold land measuring 9 bigha 2 katha 6 lechas in favour of the plaintiffs and in the process the plaintiff purchased 9 lechas of land in excess, not covered by the suit patta land and had been possessing the entire suit land. On 16/08/1997, the defendants claimed title over the suit land by right of purchase and forced the plaintiffs to file the suit, being T.S. No. 29/1997. The suit was dismissed for default and later on, it was restored. After dismissal of the suit for default, the defendants dispossessed the plaintiffs. Thus, the plaintiffs prayed for declaration of right, title and interest and recovery of possession in T.S. No.29/1997. 3. The pleaded case of the defendants was that Lalit Ch. Mandal was the original owner of the suit land, who sold 10 bigha 2 katha 6 lechas of land to his son Rakhal Ch. Mandal on 29/03/1973 and Rakhal Ch. Thus, the plaintiffs prayed for declaration of right, title and interest and recovery of possession in T.S. No.29/1997. 3. The pleaded case of the defendants was that Lalit Ch. Mandal was the original owner of the suit land, who sold 10 bigha 2 katha 6 lechas of land to his son Rakhal Ch. Mandal on 29/03/1973 and Rakhal Ch. Mandal sold 9 bigha 2 katha 9 lechas of the land to the plaintiffs by registered deed on 10/04/1981, which contained the entire land measuring 5 bigha 2 katha 6 lechas of Dag No. 234 and 4 bighas of land from Dag No. 233. After selling the land measuring 10 bigha 2 katha 6 lechas to Rakhal Ch. Mandal in the year 1973, Lalit Ch. Mandal did not have title over the land covered by Dag No. 234 and Lalit Ch. Mandal was left with only 7 bigha 4 katha 1 lecha of land in Dag No. 233. Out of the said land of Dag No. 233, Lalit Ch. Mandal sold 3 bigha of land in favour of Fulchand Sarkar and Lal Chand Sarkar in the year 1977 and said Fulchand Sarkar and Lal Chand Sarkar sold the said 3 bigha of land to defendant No. 3 in 1982. The remaining land measuring 4 bigha 4 katha 11 lechas in Dag No. 233 were in possession of the defendant No. 1 & 2, being the grandsons of the pattadar and ultimately on 16/12/1982, the said land was gifted to defendant No. 1 & 2 and therefore, the original owner Lalit Ch. Mandal did not have subsisting title on any portion of the land in the suit patta and therefore, the sale deed executed by Lalit Ch. Mandal in the year 1981 in favour of the plaintiffs was void and did not convey any title. 4. On the basis of the above pleadings of the parties, learned trial court framed the following issues. :- 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 plaintiff has right, title, interest and possession over the suit land ? 5. To what relief or reliefs the plaintiffs are entitled to ? Additional Issues :- 6. Whether the defendant dispossessed the plaintiff from the suit land ? 7. 3. Whether the suit is bad for non-joinder and mis-joinder of parties ? 4. Whether the plaintiff has right, title, interest and possession over the suit land ? 5. To what relief or reliefs the plaintiffs are entitled to ? Additional Issues :- 6. Whether the defendant dispossessed the plaintiff from the suit land ? 7. Whether the plaintiff is entitled for a decree of khas possession ? 5. Both the parties adduced evidence oral as well as documentary and after hearing the parties learned Munsiff No. 2 dismissed the suit of the plaintiffs. Being aggrieved, the plaintiff preferred TA No. 42/2006 before the Civil Judge, Senior Division and the learned Civil Judge allowed the appeal and partly decreed the suit in favour of the plaintiff with regard to the land purchased by the plaintiff from Rakhal Ch. Mandal in the year 1981. 6. Being aggrieved, the plaintiffs preferred the instant appeal, which was admitted to be heard on the following substantial questions of law :- 1. Whether the lawfully executed sale deed for transfer of ownership of the land can be held invalid merely because of wrong description of boundary in the schedule of the sale deed when the patta number was correctly mentioned in the sale deed and there was sufficient land in the name of vendor in the patta for transfer ? 2. Whether the learned trial court and the first appellate court are justified in holding the vendor of the deceased plaintiff had no subsisting right to execute the sale deed (exhibit- 5) merely because the schedule of the land in Exhibit 3 and 5 was the same in spite of the admitted fact that the vendor had the land in the patta ? 7. I have heard Mr. P. Upadhyay, learned counsel for the appellant and Mr. K. Uddin, learned counsel for the respondent and have given my anxious consideration to the submissions made by the learned counsels. 8. Learned counsel, Mr. Upadhyay submitted, that the learned appellate court fell in error by not declaring title of the plaintiffs in respect of the suit land purchased by the plaintiff vide sale deed (Ex-5) from the pattadar Lalit Ch. Mandal, inasmuch as, although there were anomalies in the schedule of the sale deed (Ex-5), suit of the plaintiff ought to have been decreed, as there were excess land in the suit patta. Mandal, inasmuch as, although there were anomalies in the schedule of the sale deed (Ex-5), suit of the plaintiff ought to have been decreed, as there were excess land in the suit patta. Further contention of the learned counsel is, that, though in sale deed (Ex-5), land of Dag No. 334 was mentioned, the intention of the seller was to sell the land from Dag No. 333. To buttress the above submission, learned counsel, Mr. Upadhyay placed reliance on the following decisions— (i) Narayanan -Vs- Kumaran & Ors., (2004) 4 SCC 26 (ii) Jayadeb Swain-VS- Santha Behera & Ors., AIR 2007 Orissa 15. 9. In Jayadeb Swain (supra) , the learned Single Judge of Orissa High Court, on the facts of the case held as under :- "In AIR 1963 Ori 136 , this Court observed that once it is accepted that the parties really intended to convey certain properties and possession of the said properties was in fact delivered to the vendee in pursuance of the said conveyance, the mere omission of the plot numbers in the sale deed would not be of any consequence. Keeping these principles in mind the courts below analyzed the evidence on record and came to the conclusion that the suit property was actually intended to be sold and possession of the suit property was also given to the plaintiff-respondent No. 1. Such conclusion, being supported by principles of law and evidence on record, does not call for any interference." 10. In the said decision, the ratio laid down by the learned Single Judge of the Honble Orissa High Court was that in case of any discrepancy between the khata number or the plot number of the land and the boundary given in the sale deed, preference should be given to the boundary of the land. In the said case dealt by the Orissa High Court, possession of the suit land within the specific boundary given in the sale deed was delivered to the plaintiff. Though the plot number or the khata number was not correct, the court held, that from the conduct of the parties in delivering possession of the suit land within the boundary described in the sale deed, the intention of the vendor to sell the land as described within the boundary was clear. Though the plot number or the khata number was not correct, the court held, that from the conduct of the parties in delivering possession of the suit land within the boundary described in the sale deed, the intention of the vendor to sell the land as described within the boundary was clear. The Apex Court in Narayanan Kumaran (supra) relied by the learned counsel for the appellant, observed that where there is inconsistency in the body of the document, containing the evidence clause and the schedule, the former prevails over the later, and as such, when the intention of the parties was clear, the schedule to the document should not have been followed to override the recital clause. 11. It is no doubt fairly settled proposition of law, that the recital in the body of the document disclosing the real intention of the parties in the transaction, shall prevail over the schedule appended to the document, if there is any inconsistency between the two. There is, however, no quarrel with regard to the above established proposition of law that the intention of the parties has to be gathered from the overall recitations in the body of the document and not from the schedule appended thereto. 12. Refuting the submission of the learned counsel for the appellant, learned counsel appearing for the respondent submitted, that the vendor of the plaintiff did not have subsisting title over the land purportedly sold by the sale deed (Ex-5) , and therefore, there was no question of intention or discrepancy between the schedule and the contents in the recital part of the sale deed in question. It appears from the pleadings of both the parties and the documentary evidence, more particularly the Ext. 3, 4 and 5 as well Ex- Ungo and Cho, the admitted position was that Lalit Ch. Mondal was the owner of the entire suit land measuring 18 bigha 1 katha 17 lechas covered by Dag No. 233 and 234. It was also admitted position, that Lalit Ch. Mandal by executing the sale deed (Ex- 3) as back as on 29/03/1973 sold the entire land measuring 5 bigha 2 katha 6 lechas of Dag No. 234 and land measuring 4 bigha from Dag No. 233. 13. It was also admitted position, that Lalit Ch. Mandal by executing the sale deed (Ex- 3) as back as on 29/03/1973 sold the entire land measuring 5 bigha 2 katha 6 lechas of Dag No. 234 and land measuring 4 bigha from Dag No. 233. 13. Thus, the undisputed document Ex- 3, the sale deed, relied by the plaintiffs themselves and the Ex- 1, the Jamabandi of the suit land, makes it abundantly clear, that after executing the sale deed, Ex- 3 in the year 1973, Lalit Ch. Mandal ceased to have any right, title and interest over the land covered by Dag No. 234. Admittedly 3 bighas of land covered by Dag No. 233 form the suit patta was sold by Lalit Ch. Mandal in favour of Ful Chand Sarkar, Lal Chand Sarkar and Kanchan Sarkar in the year 1977. Thus, admittedly, as apparent from the sale deed Ex. "Ugno" and Ex-3, Lalit Ch. Mandal parted with the entire land covered by Dag No. 234 and 8 bigha of land from Dag No. 233 till 1977 and as such, after execution of the sale deed (Ex- 3) as well as Ex- "Ugno", only 4 Bs 4 Ks. 11 Ls of land was left out in Dag No. 233. It is also evident and elaborately discussed by the learned first appellate court that the remaining land in Dag No. 233 after execution of the sale deeds, Ex-3 and Ext. "Ugno" was gifted in favour of defendant No. 1 and 2 by a gift deed dated 16/12/1981, which was proved as Ex-"Chaa". 14. In view of the above evidence, it is abundantly clear that on the date of execution of sale deed (Ex-5), the vendor of the plaintiff, Lalit Ch. Mandal did not have subsisting title over the land covered by Dag No. 234 as well as land measuring 8 bigha covered by Dag No. 233 as those lands were admittedly sold by Lalit Ch. Mandal in the year 1973 and 1977 by Ex- 3 and Ex- "Ugno" respectively. Thus, after disposing 8 bighas of land from Dag No. 233 and entire land of Dag No. 234 at best, Lalit Ch. Mandal might have title over only 4 bigha 4 katha 11 lechas of land in Dag No. 233. Mandal in the year 1973 and 1977 by Ex- 3 and Ex- "Ugno" respectively. Thus, after disposing 8 bighas of land from Dag No. 233 and entire land of Dag No. 234 at best, Lalit Ch. Mandal might have title over only 4 bigha 4 katha 11 lechas of land in Dag No. 233. The land described in schedule of Ex- 5, the sale deed executed by Lallit Mandal in favour of plaintiff comprised of land measuring 4 bigha from Dag No. 233 and land measuring 5 bigha 2 katha 6 lechas from Dag No. 234 (total land measuring 9 bigha 2 katha 6 lechas) within a compact boundary bounded, on the North by Tihu river, South -- Takur Das, East- Adhakya, West- Priyanath Sarkar. Apparently, there was no discrepancy in between the recital made in the body of the sale deed and the schedule, inasmuch as, in the body of the sale deed, it was clearly stated that the land described in the schedule was the subject of the sale. Evidently, the vendor Lalit Ch. Mandal did not have title over the suit land covered by Dag No. 234 and land measuring 8 bigha covered by Dag No. 233 at the time of executing sale deed Ex-5 and the Ex- 5 also did not contain anything, wherefrom it could be inferred that Lalit Ch. Mandal had the intention to sell some other land from Dag no. 233. That apart, evidently Lalit Ch. Mandal did not have subsisting title over 9 bigha 2 katha 6 lechas of land in Dag No. 233. Situated thus, evidently, there was no material on record wherefrom one could infer that Lalit C. Mandal had the intention to sell land measuring 9 B 2 K 6 Ls from Dag No. 233, inasmuch as, even in Dag No. 233 Lalit Mandal did not have saleable right over 9 B 2K 6 Ls of land. 15. Learned first appellate court, came to the finding, that after disposing the land vide Ex- 3 and Ex- "Ugno", the vendor of the plaintiff, Lalit Ch. Mandal was left with only 4 bigha 4 katha 11 lechas of land, which was also subsequently, gifted by registered deed in favour of the defendant No. 1 and 2 by Ex- "Cha". 15. Learned first appellate court, came to the finding, that after disposing the land vide Ex- 3 and Ex- "Ugno", the vendor of the plaintiff, Lalit Ch. Mandal was left with only 4 bigha 4 katha 11 lechas of land, which was also subsequently, gifted by registered deed in favour of the defendant No. 1 and 2 by Ex- "Cha". The said gift deed proved by the defendants, shows that the gift deed was executed in the month of December, 1981, whereby Lalit Ch. Mandal gifted 5 bigha 2 katha 10 lechas of land. Learned appellate court held, that although the vendor of the plaintiff Lalit Ch. Mandal had subsisting title over 4 bighas 4 kathas 11 lechas of land of Dag No. 233, after the execution of the gift deed, Ex- Cha in favour of the defendant Nos. 1 & 2, said Lalit Ch. Mandal ceased to have title over any portion of the land even in Dag No. 233 and therefore, the Ex- 5, did not convey any title to the plaintiffs in respect of the land described in the schedule of Ex- 5. 16. In view of the admitted facts and the documents relied by both the parties, it is difficult to infer, as contended by the learned counsel for the appellants, that the intention of the vendor was to sell the land from Dag No. 233 only and not from Dag No. 234, inasmuch as, the vendor even did not have 9 bigha 2 katha 6 lechas of land in Dag No. 233. This being the position, no decree declaring title of the plaintiff in respect of the land alleged to have purchased by the plaintiffs by Ex- 5, could be passed in the facts and circumstances, for the simple reason, that admittedly the vendor of the plaintiffs did not have subsisting title at the relevant time, nor any intention, as submitted by the learned counsel, for selling the land from Dag No. 233, could be gathered from the Ex-5. 17. What is therefore, abundantly clear from the evidence brought on record and the admitted facts, is that the crux of the controversy was not with regard to incorrect description of land in the schedule of the deed, but the question of having subsisting title for selling 9 B 2 k 6 Ls of land from Dag No. 233. 17. What is therefore, abundantly clear from the evidence brought on record and the admitted facts, is that the crux of the controversy was not with regard to incorrect description of land in the schedule of the deed, but the question of having subsisting title for selling 9 B 2 k 6 Ls of land from Dag No. 233. When the execution of the sale deeds, Ex- 4 and Ex- 3 were not denied and the Ex- 3 and 4 clearly established that the vendor Lalit Ch. Mandal parted with the entire land of Dag No. 234 and land measuring 8 bighas of Dag No. 233, obviously he did not have subsisting title over 9 B 2 k 6 Ls of land in Dag No. 233. This being the position, by no stretch of imagination, one could draw an inference from Ex- 5 that the intention of the vendor Lalit Ch. Mandal was to sell the 9 bigha 2 katha 6 lechas of land only from Dag No. 233, inasmuch as, evidently Lalit Ch. Mandal did not have title over 9 bigha 2 katha 6 lechas of land even in Dag No. 233, while executing the sale deed (Ex- 5) . Therefore, the finding of the first appellate court that the plaintiff was not entitled to a decree beyond the land purchased by Ex- 4 cannot be faulted. Although there has been an endeavour by the plaintiff to show that it was merely a defect or anomaly in describing the land in the schedule of Ex- 5, but from the entire evidence, more particularly, the sale deeds, Ex-3, Ex- 4 and Ex- "Ungo", which were admitted document, clearly established that the vendor of the plaintiffs did not have subsisting title over 9 bigha 2 katha 11 lechas of land even in Dag No. 233, and therefore, the sale deed Ex- 5, having been executed by Lallit Ch. Mandal without having title over the land, was illegal and void and incapable of conveying any title to the vendee. 18. For the reason stated above, both the substantial questions of law are answered accordingly against the plaintiffs/appellants. 19. For the reason stated above, the second appeal is found without merit and accordingly dismissed. No cost. 20. Send down the LCR.