The second appeal requires substantial questions of law that affect party rights; concurrent factual findings from lower courts are binding unless proved perverse.

JUDGMENT

1. This present appeal is filed against the Judgment and Decree dated, 10.04.2019, passed by the learned Addl. District Judge, West Tripura, Agartala, in T.A. 09 of 2018 arising out of the Judgment and Decree dated 22.02.2018 passed by the learned Civil Judge, Senior Division, Court No.1, Agartala, West Tripura in T.S.53 of 2015.

2. The facts of the case, in brief, are that respondent as plaintiff filed a title suit claiming the right title and interest on the suit land and for recovery of possession in respect of the suit land against the defendant-appellant for land measuring 6 gandas comprised in khatian No. 5951 of old CS Plot No. 7098(p), Hal CS plot No. 25610 under Mouja- Badharghat, sheet No. 5, Tehsil- Badharghat. According to the plaintiff-respondent, he is the owner of the suit land, and on the basis of title deed No. 1-7109 dated 09.10.2007 executed by the vendor-defendant, he took possession of the same. He applied for the mutation but the same was not granted in his favour. On 18.05.2008 when the respondent-plaintiff intended to fix pillars on his land, at that time he was resisted by the defendant-appellant, her sons and daughter, and other persons. According to the Plaintiff-respondent, he was dispossesed on 09.10.2008. In spite of his effort, he could not enter into the suit land. Hence, the Plaintiff-respondent filed that instant T.S. No.53 of 2015.

3. The defendant-appellant therein contested the suit by filing a written statement denying the assertions of the plaintiff-respondent. Defendant-appellant therein further took the plea that since she was unable to read and write, the plaintiff-respondent by applying fraud took the thump impression of her on the sale deed wherein she understood that she would sell 2 gandas of land for a consideration of Rs.2,40,000/-. Later when the plaintiff-respondent tried to occupy suit land measuring 6 gandas, at that time, it came to her knowledge that in place of 2 gandas collusively 6 gandas was written. Further according to the defendant-appellant therein she was/is in possession of the suit land. Furthermore, the plaintiff-respondent did not make further payment as per the sale deed. It was the plaintiff-respondent to prove the sale. Further, the mandatory provision of Section 68 of the EVIDENCE ACT was not complied with. The Learned Court below decreed the suit in favour of the plaintiff-respondent vide judgment and decree dated 22.02.2018.

4. Being aggrieved thereby, the defendant-appellant therein preferred an appeal bearing No.T.A.01. of 2018 before the learned First Appellate Court. But the First Appellate Court vide judgment and decree dated 10.04.2019 dismissed the said appeal.

5. Aggrieved thereby, the defendant-appellants herein have filed this instant appeal under Section 100 read with Or.XLII, Rule-1 of the Code of Civil Procedure, 1908.

6. Vide order dated 10.08.2020, the following substantial questions of law were formulated:-

'1. Whether the findings of the learned Courts below are perverse?

2. Whether the contents of the Sale Deed(Exbt-1) and the Sale Deed as a whole has been proved in accordance with law?'

7. Heard Mr. G.S. Bhattacharjee, learned counsel appearing for the appellants as well as Mr. S. Bhattacharjee, learned counsel appearing for the respondent.

8. Mr. G.S. Bhattacharjee, learned counsel appearing for the defendant-appellants submits that the sale deed cannot be taken as proof and source of title when admittedly the executrix(vendor) herself is unable to read and write the Bengali script and denied the sale of the quantum of 06 gandas of land. He further submits that the learned First Appellate Court has failed to consider and appreciate the evidence on record in passing the judgment impugned, when the deposition of attesting witness is mandatory for proving the execution and contention of the indenture, under dispute. Staying this, learned counsel appearing for the appellants urged this Court to allow this instant appeal.

9. Mr. S. Bhatta