The main legal point established in the judgment is that the failure to prove the case and erroneous application of adverse presumption for non-examination of a witness can impact the outcome of a suit.

1. Heard Mr. N. Dhar, learned counsel, appearing for the appellant/defendant No. 2. Also heard Mr. H.R.A. Choudhury, learned Senior counsel, assisted by Ms. R. Choudhury, learned counsel, appearing for the respondents/plaintiffs.

2. This appeal is preferred against the judgment and decree dated 13.05.2004, passed by the learned Civil Judge, Senior Division, Karimganj, in Title Appeal No. 70/2000 allowing the appeal and setting aside the judgment and decree dated 28.06.2002 passed by the learned Civil Judge, Junior Division No. 1, Karimganj, in Title Suit No. 20/94, by which the suit of the plaintiffs was dismissed.

3. The plaintiffs filed the suit for right, title, interest and confirmation of possession over 2/6th share each of the plaintiff No. 1 and defendant No. 1, and 1/6th share each of plaintiff Nos. 2 and 3 and for confirmation of possession; for cancellation of the sale deed dated 07.08.93, executed in favour of defendant No. 2 by the defendant No. 1 and registered on 08.10.93; for declaration of the said sale deed as void; for permanent injunction restraining the defendants from alienating the suit land etc.; for granting mutation in the name of the plaintiffs along with defendant No. 1 in place of Abdul Mazid over the suit land in the settlement record, etc. The suit land measures 10 Chattak in Dag No. 307 and 308 covered by new Patta No. 83 (earlier Dag No. 190/191 of Khatian No. 155).

4. The case projected in the plaint is that the suit land was owned by Abdul Mazid, who died leaving behind the plaintiff No. 1, Basiruddin; defendant No. 1, Abdul Rahman; two daughters, namely Jayatunnessa Khatun and Samida Khatun. Jayatunnessa was arrayed as plaintiff No. 2 and plaintiff No. 3 is the son of Samida Khatun, who expired. It is alleged that the suit property was being enjoyed jointly and the defendant No. 1 illegally executed a sale deed on 08.10.93 in favour of defendant No. 2. The defendant Nos. 1 and 2 filed written statement denying the allegations that the suit land was being possessed jointly and stating, amongst others, that on partition, the defendant No. 1 received more or less 10 Chattak of land and he was in possession of the same and, while in possession, he sold the same to the defendant No. 2.

5. The learned trial Court framed the following issues:

“(i) Is there any cause of action for the suit?

(ii) Whether the plaintiffs are entitled to get decree as prayed for?

(iii) To what relief/reliefs the plaintiffs are entitled to get?”

6. The defendants examined two witnesses and exhibited a few documents. Defendant No. 2 examined himself. However, defendant No. 1, vendor of defendant No. 2, did not examine himself.

7. As noted earlier, while the learned Trial Court dismissed the suit of the plaintiff, the learned Lower Appellate Court reversed the same and decreed the suit.

8. The Second Appeal was admitted to be heard by an order dated 19.03.2008 on the following substantial question of law:

“Whether the learned first appellate Court erred in law in rejecting the claim of the appellant on the ground of non-production of Defendant No. 1 as witness to prove the factum of participation as claimed by the appellant on the basis of the materials available on record?”

9. Learned counsel for the parties agree that the word “participation” in the substantial question of law is to be read as “partition”, as, apparently, the word “participation” has been wrongly typed in place of “partition”.

10. Mr. Dhar submits that in order to get a decree, the plaintiff must prove his case and cannot take advantage of the weakness, if any, of the case of the defendants. It is submitted by him that after selling the land to the defendant No. 2, defendant No. 1 has got no interest and the defendant No. 2 cannot compel defendant No. 1 to adduce evidence as he has got nothing left at stake and, in view of the above, non-examination of defendant No. 1 could not have been the only factor in decreeing the suit of the plaintiff by draw