The burden of proof regarding alleged fraudulent deeds lies with the party alleging fraud, as per Section 101 of the Indian Evidence Act, 1872.

JUDGMENT AND ORDER :

DEVASHIS BARUAH, J.

Heard Mr. A. Sattar, the learned counsel appearing on behalf of the appellant. Mr. V. K. Barooah, the learned counsel appears on behalf of the respondent.

2. This is a Appeal filed by invoking the jurisdiction under Section 104 read with Order XLIII Rule 1(u) of the Code of Civil Procedure, 1908 (for short, ‘the Code’) challenging the order dated 04.07.2009 passed by the Court of the learned Civil Judge, Morigaon, (hereinafter referred to as ‘the learned First Appellate Court’) in Title Appeal No.5/2009 by which the learned First Appellate Court had set aside the judgment and decree dated 29.11.2008 passed by the learned Munsiff No.1, Morigaon (hereinafter referred to as ‘the learned Trial Court’) in Title Suit No.14/2004 and remanded the suit back to the learned Trial Court by framing two additional issues.

3. The question which arises for consideration before this Court is as to whether the learned First Appellate Court was justified in doing so. It is relevant to take note of that the appellant herein as plaintiff had instituted a suit being Title Suit No.14/2004 before the Court of the Civil Judge (Junior Division) No.2, Morigaon seeking declaration of his right, title and interest over the plot of land described in Schedule-A to the plaint. Additionally, the plaintiff also sought for cancellation of the registered Deeds of Sale bearing Sale Deed No.1068/87 dated 14.07.1987 as well as the Sale Deed No.1187/87 executed on 11.09.1987.

4. The case of the plaintiff in brief is that the land mentioned in the Schedule-A to the plaint belonged to the father of the plaintiff and his father cultivated upon the said land. After the demise of his father, the plaintiff cultivated upon the Schedule-A land without any interruption. The plaintiff filed an application after the death of his father to correct the revenue records in the name of the plaintiff, and accordingly, on 15.02.1996, the Circle Officer, Bhuragaon vide an order dated 14.02.1995, mutated the name of the plaintiff in place of his father as the sole owner by right of inheritance. However, during the last part of the year 2003, when the plaintiff went to the Deputy Commissioner's Office for a certified copy of the Jamabandi of the Schedule-A land, he was surprised to learn that the name of the plaintiff in the Sadar Jamabandi for the Schedule-A land was cancelled by the Additional District Magistrate, Morigaon in connection with Misc. Case No.12/2002 vide the order dated 21.03.2003 without any notice and in his place, the name of the defendant was inserted. The plaintiff thereupon made enquiries and came to learn that on the basis of two purported Deeds of Sale bearing Deed No.1068/87 and Deed No.1187/87 dated 14.07.1987 and 11.09.1987 respectively, the defendant claimed to have acquired right over the Schedule-A land. Thereupon, the plaintiff alleged that his father never executed the Deeds of Sale and the said Deeds of Sale were executed fraudulently by the defendant in order to grab the Schedule-A property. It is under such circumstances, the plaintiff sought for a declaration that the plaintiff had right, title and interest over the Schedule-A land; for a decree for cancellation of the Sale Deeds bearing Deed No.1068/87 and Deed No.1187/87 and for issuance of a precept to the Sub-Registrar’s Office, Dhing, Nagaon to cancel the Deeds of Sale.

5. It is very pertinent to take note of that the plaintiff though claimed to be in possession of the Schedule land, neither sought for declaration as regards confirmation of the possession of the plaintiff over the Schedule-A land nor sought for any recovery of possession.

6. The defendant, thereupon, appeared and filed a written statement raising various preliminary issues as regards the maintainability of the suit. The defendant in the written statement duly defended the Deeds of Sale and denied that there was any fraud, impersonation or misrepresentation. It was further mentioned that there was