Point of Law: Order XXVI Rule 10(1) of Code stipulates procedure which is to be adopted by Commissioner.

JUDGMENT :

Heard Mr. G.N. Sahewalla, the learned Senior Counsel assisted by Ms. S. Todi, the learned counsel for the Appellants. Mr. D. Choudhury, the learned counsel appears on behalf of the Respondent Nos. 1 and 2.

2. The instant appeal was admitted by this Court on 9/5/2013 on the following substantial questions of law :-

i) Whether the learned Appellate Court below misplaced the burden of proof of the defendant regarding genuineness of Exhibit “Ka”, the sale deed executed in 1993 ?

ii) Whether the consideration of the evidence of the plaintiffs is perverse and thereby vitiated the judgment ?

3. The learned counsel appearing on behalf of the Respondents submits that the said substantial questions of law so formulated by this Court under Section 100(4) of the Code of Civil Procedure, 1903 (for short ‘the Code’) do not arise for consideration in the facts involved in the instant case.

4. In that view of the matter, this Court finds it relevant to take note of the brief facts of the instant case.

5. The Appellants herein as Plaintiffs have filed the suit being Title Suit No. 38/2004 against the Respondents herein who were arrayed as Defendants. For the sake of convenience, the parties herein are referred to in the same status as they stood before the Trial Court. The case of the Plaintiffs is that they were the joint owners of a suit land as has been described in Schedule ‘Ka’ to the plaint. It was mentioned that there was no partition amongst the Plaintiffs and the Plaintiff No. 1 have been managing and possessing the suit land on behalf of the other co-owners. On 25/11/2004, the defendant No. 1 accompanied by other persons tresspassed into a portion of the Schedule “Ka” land which have been most specifically described in Schedule ‘Kha’. When the Plaintiff No. 1 raised objection, the Defendant No. 1 disclosed that the Plaintiff No.4 sold the suit land as described in Schedule ‘Kha” to the Defendant No.2 and in turn the Defendant No. 2 sold the same to the Defendant No. 1. It was alleged that the Defendant No. 1 forcefully occupied the suit land despite the protest of the Plaintiffs. The Plaintiff No.1 upon enquiry came to know that the Plaintiff No. 4 never executed any Deed of Sale in favour of the Defendant No. 2 and upon enquiry in the Office of the Sub-Registrar and the Revenue Authority, the Plaintiff No. 1 came to learn that the Defendant Nos. 1 & 2 got mutation over the suit land on the basis of a forged and fraudulent Sale Deed bearing No. 213/1993. It was further alleged that the Defendant No. 2 thereupon vide another Deed of Sale transferred the land to the Defendant No. 1. It was the specific case of the Plaintiffs in the suit that the Plaintiff No. 4 did not sell the suit land to the Defendant No. 2 and the Sale Deed executed by the Defendant No. 2 in favour of the Defendant No. 1 is also forged and collusive. On the basis thereof, the Plaintiffs sought the reliefs inter alia for a declaration of right, title and interest over the land described in Schedule-‘Ka’; for declaration of the Sale Deed No.213 and 683 to be illegal which were more specifically described in Schedule ‘Ga” to the plaint; for recovery of possession by evicting the Defendants from the Schedule “Kha” land along with permanent injunction and a precept for cancellation of the mutation of the Defendants.

6. It appears from the records that the Defendant No. 1 and the Defendant Nos. 2, 4 and 5 submitted separate written statements. From a perusal of the said written statements, it transpires that various preliminary objections were taken as regards the maintainability of the suit. It was denied that the lands of Late Atmaram Thakuria belonged to the Plaintiffs as ejmali lands. It was stated that the Defendant No. 2 purchased the land from the Plaintiff No. 4 and had possessed the land openly as the possession was handed over to the Defendant No. 2 by the Plaintiff No. 4. It was further mentioned that the Defendant No. 2 by upon acquiring the right, title