Point of Law: Under Section 91 of Indian Evidence Act, 1872 when term of any transaction has been reduced to writing they must be proved by production of document.

JUDGMENT :

1. Heard Mr. BD Deka, learned counsel for the appellants. Also heard Mr. Sheeladitya, learned counsel for the respondents.

2. The present second appeal is preferred against the judgment and decree dated 30.06.2008 passed by the learned Civil Judge, Senior Division No. 1, Kamrup in TA 56/2002 upholding the judgment and decree dated 21.09.2002 passed in TS 93/1991 decreeing the suit. This court admitted the second appeal under its order dated 16.01.2009 by framing the following substantial question of law.

“1. Whether the learned lower courts below illegally came to a conclusion without framing and deciding the essential/ important issue as to whether the suit property is a joint paternal property?

2. Whether the lower courts below committed illegality in confirming the sale of the suit land to the plaintiff misconstruing and misreading the sale deeds i.e. Exhibit 4 and Exhibit 21 and the records of right i.e. Exhibit-16.”

3. Subsequently, two additional substantial questions of law were formulated by this court under its order dated 23.03.2023, which reads as follows:

“1. Whether the oral evidence of PW1 regarding the auction sale in favour of Gobinda Mahajan is inadmissible in view of Section 92 of the Evidence Act, 1872?

2. Whether the Ext. 5 (gift deed dated 12.06.1990) can be held to be proved without examination of the attesting witnesses to the deed?”

4. Before determining the aforesaid substantial question of law, let this court first summarize in a nutshell the facts and pleadings of the parties.

5. The case of the plaintiff:

I. The plaintiff filed the suit for declaration of right, title and interest and for confirmation of possession over the schedule B land appended to the plaint.

II. It is the pleaded case of the plaintiff that one Lalit Gaonburah was the owner and possessor of a plot of land measuring 3 Kathas 19 Lechas i.e. schedule A land.

III. According to the plaintiff on the death of said Lalit Nath, the Siddhi Nath inherited 13 1/6 Lechas of land.

IV. It is the pleaded case of the plaintiff that in a money suit a decree was passed against said Siddhi Nath and in execution of the said decree a land measuring 13 1/6 Lechas belonging to the said Siddhi Nath was sold and same was purchased by one Gobinda Ram Mahajan in an auction purchase.

V. The plaintiff also pleaded that the plaintiff purchased back the aforesaid land sold in auction from Gobinda Ram Mahajan, however, said purchase was made in the name of the mother of the plaintiff.

VI. It was also pleaded that mother subsequently gifted the land to the plaintiff by a registered gift deed.

VII. Thus, the plaintiff claims right, title and interest over the suit land on the basis of purchase and gift.

VIII. It is also the case of the plaintiff that as the defendant who is son of Siddhi Nath and brother of the plaintiff tried to mutate the name over the suit land on the basis of inheritance the title of the plaintiff was clouded and accordingly a suit was filed.

6. The case of the defendant:

I. The defendant by filing written statement took a stand that as the land belonged to the Late father of both the plaintiff and defendant, therefore, the defendant inherited ½ portion of the said land from his father.

II. The pleading and fact described by the plaintiff that land belonging to their father was sold in a auction purchase arising out of a decree of a civil court, was denied by the defendant.

III. The factum of purchase of the land by the plaintiff and in his mother’s name was also denied by the defendant.

IV. The defendant further denied the execution of gift deed by the mother of the plaintiff and defendant in favour of the plaintiff.

V. Though the other sons of Siddhi Nath were made parties, however, except the appellant defendant other brothers had not filed any written statement.

7. The Issues:

Considering the aforesaid pleading, the learned trial court framed the following five issues:

“1. Whether there is cause of auction for the suit?

2. Whether the suit is bad for