The main legal point established is that oral evidence to vary the terms of a written document is excluded under Sections 91 and 92 of the Indian Evidence Act.

T. Nandakumar Singh, J.

1. By this Second Appeal the appellant/plaintiff is assailing the concurrent finding of the facts by the learned Trial Court and First Appellate Court that the appellant/plaintiff and the respondent/defendant are the joint purchasers of the suit land under the Registered Sale Deed dated 3.4.75 (Ext.3) from one Smti Smiya Donye Nara at a considerable amount of Rs. 4000/- (Four thousand) only and accordingly the appellant/plaintiff is not the sole owner of the suit land.

2. The substantial questions of law formulated for decision in the present Second Appeal are :

(1) Whether the proof of oral agreement between the parties of one side of an instrument is barred under Section 92 of the Indian Evidence Act?

(2) Whether the decree declaring right, title and interest of the defendant can be passed without a counter claim and on the basis of the revenue records?

(3) Whether the judgment and the decree of the lower appellate court is inconformity with the provision of order 41, Rule 31 of CPC as all the issues have not been discussed and decided?

3. Heard Mr. B.C. Das, learned Senior Counsel assisted by Mr. M.K. Mishra for the appellant/plaintiff. None appears for the respondent/defendant.

4. The facts of the case, in a nutshell, of the appellant/plaintiff are that the appellant/plaintiff and the respondent/defendant are brothers and originally from village Rajbari Kachikata, Mouza - Bihpuria. The appellant/plaintiff has been serving as a Government servant since 1972. The respondent/defendant lives at North Lakhimpur and has been doing an ordinary job. The appellant/plaintiff periodically sent money to the respondent/defendant in order to purchase land and houses etc. and sometime, the appellant/plaintiff also personally gave money to the respondent/defendant. At one time the respondent/defendant had no means of earning and the appellant/plaintiff maintained him during that time.

5. On learning that the original owner of the suit land measuring 1K, 1 OLs covered by Dag No. 497 of P.P. No. 5, North Lakhimpur Town, Part-1, Mouza - Lakhimpur was willing to sell the same, the appellant/plaintiff withdrew money from Shillong Post Office on 26.3.75 and came to Lakhimpur to purchase the suit land. On 27.3.75 the appellant/plaintiff made payment of Rs. 8000/- (Eight thousand) only to the owner of the suit land, Smti Amiya Donye Nara, retired Government employee for purchasing the suit land in presence of the respondent/defendant and one 'Master'. Since the owner of the Suit land was ill at that time, the appellant/plaintiff asked the respondent/defendant to get the deed signed by the owner of the suit land. For that purpose, the appellant/plaintiff also gave a sum of Rs. 1000/- (One thousand) and also for minor repairs of the house standing on the suit land to the respondent/defendant. After making such payment, the appellant/plaintiff returned to his place of work i.e. at Shillong as he has exhausted the learned leave in his credit and had come only on four days casual leave. The appellant/plaintiff had no reason to disbelieve the respondent/defendant as the respondent/defendant is his own brother.

6. Later on, the respondent/defendant informed the appellant/plaintiff that the deed for purchase of the suit land with the house standing thereon had been executed and as the appellant/plaintiff had full trust on the respondent/defendant, the appellant/plaintiff did not have any reason to ascertain about the execution of the said deed for purchase of the suit land with the house standing thereon from others.

7. In June, 1985, the respondent / defendant issued a registered notice to the appellant / plaintiff claiming his share on the suit land. On receipt of the said notice, the appellant / plaintiff came over to North Lakhimpur and confronted the respondent/defendant. On such confrontation the respondent / defendant informed the appellant/plaintiff that he had been incited by his wife to demand share of the suit land and pr