Possession follows title; documentary evidence prevails over oral testimony in establishing property rights.

JUDGMENT

1. Heard Mr. B. Banerjee, learned counsel for the appellant as well as Mr. DK Das Choudhury, learned counsel appearing for the respondent no. 1.

2. The present second appeal originates from the judgment and decree dated 28.02.2019 passed by the learned District Judge, Gomati District, Udaipur in connection with Title Appeal 21 of 2015 whereby and whereunder the judgment and decree dated 17.10.2015 and 16.11.2015 respectively passed by the learned Civil Judge, Senior Division, Gomati, Udaipur in Title Suit 16 of 2011 had been dismissed.

3. Shortly stated, the appellant in the instant appeal was the original plaintiff who instituted a suit for declaration of her right, title and interest over the suit land and for perpetual injunction against the respondent no. 1. It is her case that she purchased the suit land from respondent no. 2 vide Sale Deed no. I-495 dated 17.03.2009. After such purchase of the suit land, she had been possessing the land peacefully. However, in the month of May, 2011, the defendant-respondent no. 1 had made an attempt to dispossess her from the suit land and on being threatened of such dispossession, she instituted the present suit, particularly, against the respondent no. 1 to protect her title and possession.

4. Being summoned, the respondent no. 1 appeared and filed written statement. It is pertinent to mention herein that the brother of the plaintiff i.e. respondent no. 2 (vendor of the Sale Deed dated 17.03.2009) did not appear despite receipt of summon, and hence, did not contest the suit. The respondent no. 1 denied that the plaintiff had acquired right, title, interest and possession over the suit land. After exchange of pleadings, issues were framed. Thereafter, on the basis of the issues, evidences were recorded by both the plaintiff and the respondent no.1.

5. Interestingly, the respondent no. 1 while adducing evidence have produced respondent no. 2 i.e. vendor of the Sale Deed dated 17.03.2009 as his witness. During his deposition, respondent no. 2 from whom the plaintiff had purchased the suit land, adduced that he did not sale the suit land to the plaintiff. After completion of recording evidences and having heard learned counsel appearing for the parties to the lis, the learned trial court had decreed the suit in favour of the plaintiff declaring her right, title and possession, confirming her possession and injuncting the respondents herein from interfering with her peaceful possession over the suit land.

6. Being aggrieved, the respondent no. 1 herein, had preferred first appeal before the court of learned District Judge, Gomati District, Udaipur. The learned District Judge setting aside the judgment and decree passed by the learned trial court in favour of the plaintiff, remanded the case to the court of learned Civil Judge, Senior Division, Gomati, Udaipur after framing an issue to determine the nature of possession of the plaintiff over the suit land. The issue framed by the learned District Judge while remanding the appeal to the learned trial court is as under:-

'Whether the plaintiff was/is in possession of the suit land and if so, by what act of possession.'

7. Being aggrieved by and dis-satisfied with the said judgment and decree, the original plaintiff has preferred the instant second appeal before this court.

8. I have perused the judgment passed by the learned trial court as well as the learned appellate court.

9. I have considered the substantial questions of law formulated by this court. The substantial questions of law, as formulated by this court, read as under:

'(i) Whether the first appellate court is correct in reversing the finding returned by the trial court on appreciation of the evidence as recorded wi