JUDGMENT

Date : 08-02-2018 Heard Mr. B Chakraborty, learned counsel for the appellant. None appears for the respondent.

[2] This second appeal is by the defendant against the judgment and decree dated 10.12.2009 passed by learned Addl. District Judge in Title Appeal No.33/2007 affirming and upholding the judgment and decree passed by the learned Munsiff, Biswanath Chariali in Title Suit No.12/2002.

[3] The plaintiff’s case in brief was that the plaintiff purchased the suit land by registered sale deed and he was the absolute owner in possession of the suit land. The plaintiff allowed the defendant to stay over the suit land considering his poor financial condition and ultimately, when the plaintiff asked the defendant to vacate the suit land, the defendant refused to vacate the suit land and therefore, the plaintiff filed the suit for declaration of right , title and interest and recovery of possession.

[4] The pleaded case of the defendant was that the defendant was in possession of the land for a long time and the plaintiff also entered into agreement for transferring the suit land to the defendant and therefore, specific plea of the defendant was that his possession was protected under Section 53-A of the Transfer of Property Act. On the basis of the above pleadings, learned Munsiff framed the following issues:

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

2. Whether the suit is barred by limitation?

2. (i) Whether is any cause of action for the suit?

3. Whether the suit is bad for waiver, estoppels and acquiescence?

4. Whether the defendant in possession of the suit land?

4. (i) Whether the defendant is protected under Section 53(A) of the Transfer of Property Act?

5. Whether the suit is under valued?

5.(i) Whether the suit is bad for non-joinder of necessary parties?

6. Whether the defendant is a trespasser over the suit land?

6.(i) Whether the defendant has acquired the suit land as his right?

7. Whether the defendant is liable to be evicted?

8. To what relief the parties are entitled to get under the law?

Additional issue

9. Whether the plaintiff is entitled for a decree as prayed for?

[5] Both the parties adduced evidence in support of their respective cases and after hearing both the parties, learned Munsiff decreed the suit in favour of the plaintiff.

[6] Aggrieved, the defendant preferred an appeal which also stood dismissed vide the impugned judgment and decree. The defendant/appellant challenging the appellate decree, preferred the instant appeal which was admitted to be heard on the following substantial questions of law:

1. Whether the Courts below have ignore the certificate of the Circle Officer confirming mutation and patta in the name of the appellant in deciding issue No.6(1) against him?

2. Whether the Courts below misread the provision under Section 110 of the Evidence Act, in 1872 deciding the ownership of the respondent over the suit land?

3. Whether the purchase of the suit land by the plaintiff as well as her vendor can be said to be valid as per the provisions of Section 54 of the Transfer of Property Act, 1882?

4. Whether the Courts below misread and misinterpreted Exhibit-Ka giving right to the appellant to obtain another document which when executed creates his right over the suit land as per provisions of Section 17(2)(v) of the Indian Registration Act, 1908?

[7] In the course of argument, Mr. Chakraborty learned counsel for the appellant submits, that though four substantial questions of law were formulated, according to him only the question needs to be answered for deciding this second appeal is the substantial question No.4 and therefore he declines to press the other three questions and focused basically on the one point being the defence under Section 53-A of the Transfer of Property Act. It is contended by Mr. Chakraborty that the plaintiff entered into an agreement to sale the suit land in favour of the defendant and by virtue of the said agreement for sale (Exhibit-Ka), the defendant have been posses