IMPORTANT POINT
The burden of proof lies on the party asserting a fact, and failure to establish claims of forgery leads to dismissal of the appeal.

JUDGMENT :

ROBIN PHUKAN, J.

1. Heard Mr. P.K. Deka, learned counsel for the appellant and Mr. S.K. Ghosh, learned counsel for the respondents.

2. In this appeal, under Section 100 of the C.P.C. the appellant, Smti. Gita Roy has put to challenge the correctness or otherwise of the Judgment and Decree dated 05.03.2014, passed by the learned Civil Judge, Hailakandi, in Title Appeal No. 12/2009.

3. It is to be noted here that vide impugned Judgment and Decree dated 05.03.2014, the learned Civil Judge, Hailakandi had reversed the Judgment and Decree dated 19.11.2008, passed by the learned Munsiff No. 1, Hailakandi, in Title Suit No. 21/2008.

4. For the sake of convenience and clarity, the parties will be referred in the rank assigned to them in the Title Suit No. 21/2008.

Background Facts:

5. The background facts, leading to filing of the present appeal, are adumbrated herein below:

“The principal defendants No. 1 to 5, as plaintiffs, instituted a title suit, being Title Suit No. 03/1996, against one Brojendra Chandra Roy and others for recovery of khas possession of a plot of land as mentioned in the schedule of the said title suit. Then on receipt of summon, Brojendra Chandra Roy appeared and submitted written statement denying the averments made in the plaint. He had taken a stand that he had purchased the suit property from the heirs of Narendra Chandra Namasudra, vide purchase deed No. 6979, dated 29.11.1969 and since then he is in exclusive possession of the said land. During the course of trial, Brojendra Chandra Roy died in the year 2001 leaving behind his wife, namely, Smti. Brajabala Roy, (pro-forma defendant No. 7) and two sons, namely, Ananta Kumar Roy (plaintiff No. 1), Amulya Chandra Roy (defendant No. 6), two daughters namely, Smti. Geeta Roy (plaintiff No. 2) and Smti. Sita Roy (pro-forma defendant No. 8) as his legal heirs.

It is alleged in the plaint that the plaintiff No. 1 was working at Golaghat and he did not receive any summon from the court in the aforesaid suit and whenever he visited his house at Kalinagar, his brother, the respondent No. 6 denied the fact of receiving any summon. When the plaintiff No. 1 visited his residence in the month of February, 2004, he came to know from the local people that they will be evicted as a decree was passed against them in Title Suit No. 03/1996.

Then he enquired about the matter and collected the certified copy of the judgment and decree and found that the summons were received by the defendant No. 6, where his and his sister Geeta Roy’s signatures were forged and they had never subscribed any vakalatnama, which was filed along with the petition seeking time to file written statement in the Title Suit No. 03/1996 and that they had never engaged Mr. K.M. Singha as their Advocate. The defendant No. 6, in collusion with other principal defendants forged the signature of the plaintiffs in vakalatnama and in the petition. The learned Munsiff, Hailakandi after hearing learned counsel for both the parties decreed the Title Suit No. 03/1996, vide judgment and decree dated 20.08.2002.

Thereafter, the plaintiffs had instituted Title Suit No. 21/2008, before the court of learned Munsiff No. 1 Hilakandi seeking a declaration of the judgment and decree dated 20.08.2002 in T.S. No. 03/1996, a nullity being obtained by the defendants No. 1 to 5 in collusion with defendants No. 6 by playing fraud upon the plaintiffs. In the said suit, the defendants entered appearance and contested the suit. Thereafter, the learned Munsiff, after hearing learned Advocates of both the parties, had decreed the suit vide judgment and decree dated 19.11.2008, by holding that the defendant Nos. 1 – 5, in collusion with defendant No. 6, had obtained the decree by playing fraud upon the court and as such, declared the same as nullity.

Against the said judgment and decree, dated 19.11.2008, passed by the learned Munsiff, the defendants had preferred an appeal, being Title Appeal No. 12/2009, before the learned Civil Judg