The burden of proof lies with the party asserting a fact, and failure to substantiate claims can lead to dismissal of the appeal.

JUDGMENT :

Robin Phukan, J.

Heard Ms. R. Choudhury, learned counsel for the appellants and also heard Mr. D. Mozumder, learned Senior counsel assisted by Mr. R. Sarma, learned counsel for the respondents.

2. This appeal under Section 100 of the Code of Civil Procedure, 1908, is directed against the judgment and decree dated 05.08.2015 passed by the learned Civil Judge, Karimganj, in Title Appeal No.9/2015. It is to be noted here that vide impugned judgment and decree dated 05.08.2015, the learned First Appellate Court had set aside the judgment and decree dated 02.01.2015, passed by the learned Munsiff No.1, Karimganj, in Title Suit No.143/2006, whereby the suit of the plaintiffs was dismissed.

3. The back ground facts leading to filing of the present appeal is briefly stated as under:-

“The appellants herein are the legal heirs of Deshmond Anthony and the respondents are the legal heirs of Abdul Hadee. Deshmond Anthony, the predecessor-in-interest of the appellants as defendant had entered into an agreement with Abdul Hadee, predecessor-in-interest of the respondents herein as plaintiff to sell the suit land to the plaintiff on consideration of a sum of Rs.1,50,000/- and he received an amount of Rs.1,40,000/- and executed a bainanama undertaking on 01.02.1995 to execute and register a sale deed within 31.01.1996 after obtaining permission from the concerned authority and after receiving the rest of the sale consideration. But, later on, failed to execute the sale deed and also failed to receive the amount of Rs.10,000/-, in favour of the plaintiff and thereafter, tried to alienate the suit land to other persons. The plaintiff thereafter, filed the suit for specific performance of the contract along with other reliefs.

The suit was decreed ex-parte on 28.06.1996, but later on, the ex-parte decree was set aside and the defendant was allowed to contest the suit by filing written statement. Accordingly, he had filed written statement and his projected case is that he was in good relation with the plaintiff No.1 and on his request, he arranged a job to the plaintiff and subsequently, he came to know that plaintiff No.1 left the said job. Thereafter, as per mutual arrangement, the plaintiff No.1 stood as guarantor while the defendant had purchased a truck on private finance and as per the said arrangement, the management of the truck was with the plaintiff No.1. Later on, he came to know that plaintiff No.1 neither paid any bank installment nor able to generate profit and thereafter, the defendant entrusted the management of the said truck to his younger brother and he never executed any bainanama on 01.02.1995 and the plaintiff No.1 in collusion with the plaintiff Nos.2 and 3 for illegal gain created the said bainanama and as such, prayed to dismiss the suit with cost.

Upon the said pleadings of the parties, the learned Munsiff No.1, Karimganj, framed following issues:-

1. Is there any cause of action for the suit?

2. Whether the suit is maintainable in its present form?

3. Whether the suit is barred by limitation?

4. Whether the suit is barred by law of contract?

5. Whether the plaintiff is entitled to get a decree as prayed for?

6. To what relief/reliefs the plaintiffs are entitled.

Thereafter, hearing both the parties, the learned Munsiff No.1, Karimganj, vide judgment and decree dated 02.01.2015, decided the Issue No.1 in negative against the plaintiffs, Issue Nos.2, 3 and 4 in affirmative in favour of the defendants and negative in favour of the plaintiffs and Issue Nos.5 and 6 in negative against the plaintiffs. Thereafter, dismissed the suit.

Being aggrieved, the plaintiffs preferred an appeal, being Title Appeal No.9/2015 before the learned Civil Judge, Karimganj and thereafter, hearing both the parties, the learned Civil Judge, Karimganj, has allowed the appeal by setting aside the impugned judgment and decree so passed by the learned Trial Court and decreed the suit.”

4. Being highly aggrieved, the appellants preferred the present appea