Dipali Das And Ors vs Shafali Sur And Ors

Prasanta Kumar Deka, J

Heard Mr. D. Mozumder, the learned Senior Counsel assisted by Mr. S. Biswas, the learned counsel for the appellants. Also heard Mr. G. P. Bhowmik, the learned Senior Counsel assisted by Ms. M. Kalita, the learned counsel for the respondents.

The appellants as the plaintiffs filed originally Title Suit No.65/1993 renumbered as Title Suit No.32/1998 in the Court of learned Civil Judge, Junior Division, Margherita against the present defendant/ respondent. The present appellants and the respondents are respectively the legal heirs of the original plaintiffs and defendant and as such, the plaintiffs/ appellants and the defendant/ respondent shall mean the original plaintiffs and defendant in the suit. The said suit was for declaration of sale deed No.2107 dated 11.12.1971 registered in the Office of the Sub-Registrar at Tinsukia as void and inoperative in law and precept for its cancellation, for declaration that the mutation order dated 20.04.1972 and the entry thereof dated 16.12.1986 in respect of the mutation of the name of the sole defendant/respondent, Narendra Kumar Sur as illegal and precept for cancellation and a direction to the concerned official to mutate the names of the plaintiffs/appellants as settlement holders in respect of the suit land.

The detailed facts of the plaintiffs/appellants are required to be recorded. That plot of land measuring 2 Bighas 0 Katha 7 Lechas covered by Dag No.337 (old)/ 507 and 509 (new) of Periodic Patta No.102 (old)/ 105 (new) at Digboi town under Makum Mouza in the district of Dibrugarh, was mutated in the name of one, Narakanta Gaonburha @ Kalita which is the suit land. Narakanta Gaonburha vide registered sale deed No.829/1935 followed by a deed of Rectification No.448/1939 sold the said land with other land to one, Saheb Ali who vide sale deed No.315/1940 sold the same to one, Ansar Ali. On his death his sons, Akram Ali and Najeb Ali alongwith mother and sisters sold the said land with other lands to Ramani Mohan Das and Rohini Kumar Das vide sale deed No. 508/1953. Ramani and Rohini were possessing the same peacefully. Rohini sold his share to Satyendra Kumar Das and Jatindra Mohan Das, the original plaintiff Nos. 1 and 2 vide two sale deeds No.269/1968 and 1668/1970. Ramani sold land measuring 2 Kathas 10 Lechas from his share to Gopika Ranjan Chakravorty, the predecessor-in-interest of the original plaintiff Nos. 5(i) to 5(vii) vide sale deed No.1840/1971. In the resettlement operation dag and periodic patta numbers were converted to Dag No. 508 (new) covering an area of 1 Bigha 3 Kathas 15 Lechas land and Dag No. 507 (new) covering an area of 1 Katha 6 Lechas total 2 Bighas 1 Lechas under Periodic Patta No. 105 (new) of Digboi town under Makum Mouza. The said land was mutated in the names of Rohini Kumar Das and Ramani Mohan Das alongwith Gopika Ranjan Chakravorty vide order dated 11.01.1972 and subsequently, names of the plaintiff Nos. 1 and 2 were also mutated in the records of right in the year 1976-77. Gopika sold part of his land to plaintiff No.6, Basanti Ghosh vide sale deed No.1576/1978 with a house standing thereon. Ramani died in the year 1985 leaving behind the original plaintiff Nos. 1 to 4 as successors who inherited the unsold share of Ramani Mohan Das over the suit land. Accordingly, the plaintiffs/ appellants became the owner of the respective part of their land.

The defendant/respondent filed Title Suit No. 113/1982 later on, renumbered as Title Suit No. 18/1983 against the plaintiffs/appellants by claiming his title by way of purchase vide registered sale deed dated 11.12.1971 executed by Krishneswari Deka, the daughter of late Narakanta Gaonburha over land measuring 2 Bighas 7 Lechas with a house standing thereon. The plaintiffs/appellants filed their written statement in the said suit. 145 Cr.P.C. proceeding was initiated by the defendant/ respondent against the plaintiff Nos. 1 and 2. On 30.05.1988, the plaintiff Nos. 1 and 2, the predecessor-in-interest of the substituted plaintiffs/appellants had the knowledge from the copy of Jamabandi in respect of Periodic Patta No. 105 (new) that the name of the defendant/respondent was mutated in respect of the suit land. The said mutation was fraudulent and collusive which came to the knowledge on 30.05.1988. The mutation order dated 20.04.1972 and the entry in the Jamabandi were recorded on 16.12.1986. The said mutation cast a cloud over the right, title and interest of the plaintiffs/appellants and as such, filed the suit for declaration. The cause of action for the suit arose from the year 1935, 1939 and 1940 when Narakanta Gaonburha sold suit land to Saheb Ali who sold the land to Ansar Ali, on 20.05.1953 when the predecessor-in-interest of the plaintiffs purchased the suit land from heirs of Ansar Ali, in the year 1968 and 1970 when the plaintiff Nos. 1 and 2 purchased the part of suit land from Rohini Kumar Das, in the year 1971 when Ramani Mohan Das sold a part of land to Gopika Ranjan Chakravorty, in the year 1978 when Gopika Ranjan Das sold a part of suit land to Smti. Basanti Ghosh, on 11.12.1971 the deed of sale by way of which the defendant/respondent purchased the suit land, on 16.12.1986 recording of entry into the Jamabandi, on 30.05.1988 when the plaintiffs/ appellants could come to know about the recording dated 16.12.1986.

The defendant/respondent contested the suit by filing the written statement taking the plea amongst others, that the suit was barred by limitation. It was further pleaded that Narakanta Gaonburha was the original owner of the suit land till his death. He never executed any sale deed in respect of the suit land during his lifetime. He died leaving behind his wife Gouri Tantini and one daughter Smti. Krishneswari Deka, who inherited the suit land after the death of Narakanta Gaonburha. Gouri Tantini executed an Agreement for Sale on 12.02.1946 to sell the suit land together with other land to the defendant/respondent. On the basis of the said Agreement for Sale, the defendant/respondent was put in possession of the suit land along with other land. Tantini died in the last part of the year 1946 leaving her only daughter, Krishneswari Deka as the legal heir. The said daughter, Krishneswari Deka executed a registered sale deed in favour of the defendant/respondent on 11.12.1971 in respect of the suit land together with other land which was possessed by the defendant/respondent. The plaintiffs/appellants had no right, title and possession over the suit land or any part thereof. Accordingly, he sought for dismissal of the suit on the ground that the sale deed by way of which he purchased the suit land and the mutation thereon are valid and legal.

On the basis of the pleadings, the trial court framed the following issues:-

"1. Whether the suit is maintainable?

Whether the plaintiffs have right to sue?

Whether the suit is bad for non-joinder of heirs of Late Rohini Kumar Das?

Whether the suit is barred by limitation?

Whether Narakanta Gaonburah sold the land vide Deed No.829/35 and 448/39 to Saheb Ali or not?

Whether the subsequent alienation and mutation of names as claimed by the plaintiffs are legally valid?

Whether the story of donation and its validity as claimed by the Defendant are legally correct?

Whether the mutation appearing in Zamabandi in respect of the name of the Defendant is genuine or false and fabricated?

Who are the owners of the suit land?

Whether the plaintiffs are entitled to the decree as prayed for?

What any other relief or reliefs, the parties are entitled to?"

The plaintiffs/appellants examined three witnesses including the plaintiff No.2 and plaintiff No.5(iv) and produced 24 documents as exhibits in support of their case. The defendant/respondent examined two witnesses including himself exhibiting 7 documents. The learned trial court took issue No.9 and decided that the plaintiffs/appellants are the owners of the suit land. The trial court without discussing the evidence on record considered exhibit-Ka, the Deed of Agreement between the defendant/respondent and Gouri Tantini and held that the said Agreement was an un-registered deed which is invalid under the law so the defendant/ respondent cannot claim the ownership over the suit land by virtue of the un-registered Deed of Agreement. The rest of the issues No. 1 to 8 and 10 were decided in favour of the plaintiffs/appellants. The issue No.4 relates to the point of limitation. The trial court without discussing any evidence on record came to the finding that it was only on 30.05.1988 the plaintiffs/appellants could come to know about the mutation order dated 20.04.1972 and the entry dated 16.12.1986. The suit was decreed in favour of the plaintiffs/ appellants.

The defendant/respondent filed Title Appeal No.04/2005 in the Court of learned Civil Judge at Tinsukia against the judgment passed by the learned trial court which was allowed vide judgment and decree dated 30.04.2007. The first appellate court took issue No.2 and held that it cannot be reasonably accepted that Saheb Ali (original purchaser) purchased from Narakanta Gaonburha vide registered sale deed No.827/1935 (Ext-1) land of the suit dag and subsequent transfers also cannot pass title to the purchasers. While deciding the said issue No.2 it considered the said Ext-1 (sale deed) executed by Narakanta Gaonburha to Saheb Ali and held that from the Schedule mentioned in Ext-1 the suit Dag No.337 was not visible which the PW-1 admitted to that effect. Though it was pleaded before the Court below that the said document is a 30 years old document and presumption can be drawn under Section 90 of the Indian Evidence Act but the contents thereof must be proved by evidence. The plaintiffs/appellants did not take steps to prove the fact of existence of the suit dag and its recording in the Ext-1 by adducing secondary evidence by calling the necessary officer from the Office of the Sub-Registrar and as such, the contents of Ext-1 more specifically, with respect to Dag No.337 remained un-proved. Ext-2 (alleged rectification deed) which was executed on 17.04.1939 by Narakanta Gaonburha though the same has been classified as deed of rectification the same also does not prove that the suit dag No.337 was inserted in the said Ext-1. On the other hand, considering the Ext-Ka, agreement for Sale in the year 1946, the consequent registered sale deed No.2107/1971 (Ext-Kha/ Ext-19) and the subsequent mutation entry in respect of the suit dag in the year 1972 it was held to be proper inasmuch as the plaintiffs/appellants failed to prove their right, title and interest over the suit dag No.337. On the basis of the finding the first appellate court reversed the finding of issue No.9 of the trial court.

The issue No.4 was also decided against the plaintiffs/appellants. As against the pleadings of the plaintiffs/appellants that they had no knowledge about the registered sale deed Ext-Kha and the mutation order dated 20.04.1972 till 30.05.1988, the appellate court took note of the deposition in the cross-examination of the PW-1 (plaintiff No.2) that he obtained the certified copy of the disputed sale deed No.2107 (Ext-19/Kha) on 03.05.1976 and held that the plea of the plaintiffs/ appellants with respect to the date of knowledge was false. Bringing into reference Article 59 of the Limitation Act, 1963 it held that the suit was filed after 18 years from the date of knowledge of the PW-1 and as such, the same is barred under Article 59 of the Limitation Act, 1963. Again taking into consideration the cross- examination of PW-1 wherein he stated that he obtained a draft copy of the chitha on 06.02.1984, it was further observed that with regard to the mutation of the defendant/respondent there was a mutation appeal which came to the knowledge of the said PW-1 on 26.08.1982. Referring to Article 100 of the Limitation Act, 1963 which prescribes a period of one year for setting aside an order passed by any officer of the Government in his official capacity and also considering Article 113 of the Limitation Act, 1963 which provides a period of limitation of 3 years, the appellate court held that the relief for cancellation of the mutation order dated 20.04.1972 and the entry thereof dated 16.12.1986 is barred by limitation.

Being aggrieved by the said judgment and decree of the first appellate court, the plaintiffs/appellants filed the second appeal which was admitted on 22.06.2007 on the following substantial questions of law:-

"A. Whether non consideration of Exhibits 3, 4, 5, 6 and 7 all Sale Deeds more than 30 years old produced from proper custody and proved in original without objection being registered sale deeds following the execution of Exhibits 1 and 2 made by the original owner Narakanta Gaon Bura executed prior to 11/12/71, Exhibit 'Kha', alleged to have been executed by the successors-in-interest of Narakanta Gaon Bura and Exhibit 8 has vitiated the impugned Appellate Judgment and Decree?

B. Whether learned lower Appellate Court misconstrued Exhibits 1 and 2 thereby dismissing the plaintiff's suit?

C. Whether the finding of the learned lower Appellate court below that the suit is barred by limitation is sustainable in law?

D. Whether the impugned Appellate Decree is perverse to the evidence on record?"

Mr. Mozumder submits that the finding of the first appellate court in respect of the issue No.4 i.e. whether the suit is barred by limitation is perverse. It is his submission that the issue of limitation involves both mixed question of facts and law. Mere a bald pleading that the suit is barred by limitation is not sufficient when the same is linked with some facts more specifically, those facts attributed to some acts of the plaintiffs/appellants. Referring to the written statement Mr. Mozumder submits that there is no specific plea as to how the suit is barred under the law of limitation. The denial is an evasive denial and under Order VIII Rule 3 of the CPC mere evasive denial is not sufficient. In support of the said submission Mr. Mozumder relies Gian Chand and Brothers and Another -vs.- Rattan Lal Alias Rattan Singh, reported in (2013) 2 SCC 606, in addition to that Mr. Mozumder also relies a decision from the Hon'ble High Court of Calcutta downloaded from Supreme today. It is further submitted that there can be no right to sue until there is a right asserted in the suit and its infringement or at least, a clear unequivocal threat to infringe the right by the defendant against whom the suit is instituted. Article 59 prescribes the period of limitation only from the date on which the plaintiffs/appellants came to know the facts requiring cancellation of the said instrument.

The plaintiff PW-1 in his cross-examination deposed that he obtained the certified copy of the Ext-Kha (sale deed) on 03.05.1976 but the cause of action for filing the suit did not arise inasmuch as the defendant/respondent filed Title Suit No.22/1976 against him and his father with respect to land of dag No.336 which is not the suit dag. Referring to Section 31 of the Specific Relief Act, 1963 it is submitted the right to file suit for declaration of a written instrument as voidable accrues to a plaintiff only when there is reasonable apprehension of causing injury to him if the same is kept outstanding. In the present case in hand, the possession of the suit land was very much with the plaintiffs/appellants and there was no reasonable apprehension even after the said Ext-Kha came to the knowledge of the plaintiffs/appellants in the year 1976. Once the mutation order of the defendant/respondent and the subsequent correction made in the Jamabandi in the suit dag came to the knowledge of the plaintiffs/appellants on 30.05.1988 as per Article 59 of the Limitation Act, 1963 the facts entitling the plaintiffs/appellants to file the suit for cancellation of the sale deed and the mutation order arose. It is incumbent on the part of the defendant/respondent to prove the facts on the basis of which he wants to establish that the suit is barred by limitation. In support of the said submission Mr. Mozumder relies Narne Rama Murthy -vs.- Ravula Somasundaram and Others, reported in (2005) 6 SCC 614.

Mr. Bhowmik, on the other hand, supports the finding of the first appellate court opposing the submission of Mr. Mozumder. Referring Section 3 of the Limitation Act, 1963 it is his contention that the question of limitation need not be pleaded. As per Section 3 of the Limitation Act, it is the duty of the court to consider whether any claim in a suit is barred by time. Referring Jay Govind Yadav (Goala) -vs.- Ahmed Tea Company (P) Ltd. reported in 2007 (4) GLT 548, Mr. Bhowmik submits that every suit instituted, appeal preferred, an application made after the prescribed period of limitation shall be dismissed although the same was not set up as a defence. The trial court is bound to consider whether the claim of the plaintiff or part thereof is barred by time or not.

I have given due consideration to the submissions of the learned counsel. The bar of the limitation under Section 3 of the Limitation Act, 1963 specifically stipulates that subject to the provisions contained in Sections 4 to 24 every suit instituted, appeal preferred and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence. Section 3 limits the time after which the suit is barred. As held in Manindra Land and Building Corporation Ltd. -vs.- Bhutnath Banerjee and Others, reported in AIR 1964 SC 1336, Section 3 makes the question of limitation, a material one for determination in every case irrespective of the fact whether the question is raised by the parties or not. Thus a duty is cast upon the court which is mandatory in nature to examine whether the relief sought for is barred under the law of limitation. Mr. Mozumder relies Narne Rama Murthy -vs.- Ravula Somasundaram and Others (supra) wherein it was held that the question of limitation is mixed question of fact and law and when a suit does not appear to bar by limitation on the face of it, then the facts necessary to prove the bar of limitation must be pleaded and an issue raised and then proved. However, as per said decision it is to be seen whether the question of limitation is intricately linked as to whether the suit was filed immediately when the cause of action accrued for seeking the relief sought for in the plaintiff. If we take into consideration the mandate of Section 3 a burden is cast upon the plaintiff themselves to show that the suit is not barred by limitation.

The cause of action for filing the suit by the plaintiffs/ appellants is relevant. From the pleadings it is seen that land measuring 2 Bighas 0 Katha 7 Lechas covered by Dag No. 337 of P.P. No. 102 of Digboi Town is the suit land. Narakanta Gaonburah, the original owner of the suit land sold the same to Saheb Ali vide Registered Sale Deed No. 829 of 1935. From the said sale transaction the plaintiffs/appellants claim their right, title and interest over the suit land through various subsequent sale deeds. It is further pleaded that the defendant/ respondent filed Title Suit No. 113/1982 (renumbered as Title Suit No.18/1983) in the Court of Munsiff No.1 at Tinsukia against plaintiff No.6 (Basanti Ghosh), proforma respondent No.5 alongwith other plaintiffs/appellants praying for the possession of land measuring 0 Bigha 1 Katha 12 Lechas being part of land under Dag No.337 (old)/ 507 (new) of P.P. No. 102 (old)/ 105 (new) of Digboi Town. The suit land along with other land was already sold by the original owner, Narakanta Gaonburah to Saheb Ali in the year 1939, his heir, Smti. Krishneswari Deka had no right, title and authority to sell the land again to the defendant/respondent. The present plaintiffs filed written statement in Title Suit No. 18/1983 and contested the suit. In the said written statement it was averred that as the land was sold already to Saheb Ali as such Krishneswari as the legal heir of Narakanta had no title to sell the same again.

The reliefs sought in the present suit is for declaration that Sale Deed No.2107 dated 11.12.1971 is void and inoperative in law and for cancellation of the same alongwith the declaration that the mutation order dated 20.04.1972 and entry thereof dated 16.12.1986 in the record of rights (Jamabandi) mutating the name of the defendant/ respondent over the suit land is illegal and a direction to mutate the names of the plaintiffs/appellants as settlement holders. Thus the suit is for declaration of the status as settlement holders of the suit land but after cancellation of the sale deed No.2107 dated 11.12.1971. Thus from the pleadings itself in the plaint it is seen that the said instrument i.e. the sale deed Ext- Kha is an insurmountable obstacle in the way of the plaintiffs/appellants in getting the reliefs on the basis of the cause of action. For the said reason a declaration that the Ext-Kha is void is required before seeking the relief of cancellation of the same. Now leaving aside declaration of forgery of an instrument and that an alleged adoption is invalid or never took place, to obtain any other declaration Article 58 of the Limitation Act, 1963 prescribes 3 (three) years period from when the right to sue first accrues. The cross-examination of PW-1 (plaintiff appellant No.2) reveals that he obtained the certified copy of the Registered Sale Deed No.2107 dated 11.12.1971 in the year 1976. So the learned first appellate court held that as the suit was filed after 18 years i.e. in the year 1976 so the suit was barred by limitation more specifically the relief of cancellation of the said sale deed.

Article 59 of the Limitation Act, 1963 prescribes a period of 3 (three) years for seeking the relief of cancellation of an instrument or decree when the facts entitling the plaintiff to have the instrument cancelled first become known to him. The cause of action in the suit for seeking the relief of cancellation of the sale deed arose because of the fact that already the suit land was sold by Narakanta to Saheb Ali in 1935 and subsequently the same cannot be executed by his legal heir in favour of defendant/respondent. This fact is known to the plaintiffs/appellants in the year 1976 from the certified copy of the sale deed Ext-Kha. In order to get the declaration that the Ext-Kha is void the suit ought to have been filed immediately within 3(three) years after receipt of the certified copy. The declaration that the sale deed No. 2107 dated 11.12.1971 is void must be granted in order to overcome the "insurmountable obstacle" to get the relief of cancellation of the same. The submission that the fact entitling the plaintiffs/appellants for seeking the said relief of cancellation arose after the notice of the mutation on 30.05.1988 by the plaintiffs/appellants because in the year 1976 they were possessing the suit land and no cause of action accrued for the relief of cancellation of the deed as submitted by Mr. Mazumdar cannot be accepted inasmuch as by the act of seeking the relief of declaration that the sale deed Ext-Kha as void itself shows that the same is an insurmountable obstacle. As per the plaint the vendor, Krishneswari had no right and title to transfer the suit land once the same was sold vide Ext-1 in the year 1935 and as such in order to get the relief of cancellation the sale deed required to be declared as void. In the plaint the cause of action for the suit arose on 11.12.1971 when the said Ext-Kha was executed. Accordingly, the first appellate court came to the finding the plaintiffs/appellants had the knowledge of the sale deed in the year 1976 and as such the suit filed after 18 years is barred by limitation. The finding is correct.

It is important to note that the relief sought for by the plaintiffs/appellants is intricately intertwined with the law of limitation and the suit was required to be filed immediately when the cause of action accrued as the relief is for declaration and cancellation. So in my opinion it is not required to be pleaded by the defendant/respondent why the suit is barred by limitation. This is because of the law as stipulated under Section 3 of the Limitation Act, 1963 which mandates the court to look into as to whether the suit and the reliefs are barred by the law of limitation even if no defence to that effect is pleaded.

Mr. Mozumder relies Popat and Kotecha Property -vs.- State Bank of India Staff Association, reported in (2005) 7 SCC 510, State Bank of Haryana and Another -Vs.- Satyender Singh Rathore, reported in (2005) 7 SCC 518 and Balasaria Construction (P) Ltd. -Vs.- Hanuman Seva Trust and Others, reported in (2006) 5 SCC 658 in order to support that the issue of limitation is a mixed question of fact and law and as such, the facts are required to be pleaded.

The decisions relied by Mr. Mozumder are mainly with respect to the provision under Order VII Rule 11 (d) of the CPC which prescribes that the plaint can be rejected where the suit appears from the statement in the plaint to be barred by any law. It is true that the facts are to be pleaded by the defendant/respondent in order to show as to how the suit is barred by limitation. That does not mean that the principal burden on the plaintiffs/appellants is totally ousted as it is the burden on the plaintiffs/appellants to show that they are entitled for the relief claimed and the same is not barred by law of limitation. The law of limitation dissuade the plaintiff in seeking the relief in the court. So, Section 3 of the Limitation Act, 1963 authorizes the court to examine on its own as to whether the plaintiff is entitled to relief claimed even if there is no specific pleading taken as defence by the defendant and the said inference flows from Section 3 of the Limitation Act.

In my opinion, keeping in view of the decision in Manindra Land and Building Corporation Ltd. -vs.- Bhutnath Banerjee and Others (supra), the court must look into the said aspect once the evidence are completed by the parties to the suit. It is sufficient if there is an issue to that effect. Order XX Rule 5 of the CPC mandate that the court is bound to pronounce judgment on each and every issues framed. For an issue to be framed it is sufficient for the defendant to take the defence that the suit is barred by limitation. If the issue is framed, the court is bound to give a decision as mandated by Order XX Rule 5 of the CPC and even if there is no such issues framed the court must exercise jurisdiction under Section 3 of the Limitation Act, 1963. In this case issue was framed on the basis of the defence of the defendant/respondent. During cross-examination, the defendant/respondent was able to bring in the evidence from the plaintiff/appellant No.2 as PW-2 the required evidence at least to show that he was aware of the registered sale deed Ext-Kha/19 in the year 1976. The knowledge about the sale deed is accordingly proved which is much prior to the prescribed period of limitation. In Narne Rama Murthy -vs.- Ravula Somasundaram and Others (Supra) it was held that it is to be seen whether the issue of limitation is intricately linked with the relief and as to whether the suit was filed immediately when the cause of action accrued for seeking the relief. I have already discussed that the relief is in respect of declaration that the sale deed Ext-Kha is void and only thereafter relief of cancellation can be granted. So suit ought to have been filed immediately within 3 (three) years from 1976 i.e. when the right to sue accrues. Having not done so the suit is barred under Article 58 of the Limitation Act, 1963. Thus the substantial question of law No.C is answered against the plaintiffs/appellants.

With respect to the other finding of the first appellate court Mr. Mozumder submits that admittedly Ext-1 (the registered sale deed) on the basis of which the plaintiffs/appellants claimed their right over the suit land is a document more than 30 years old. The presumption under Section 90 of the Evidence Act is applicable so far the execution of the same by the vendor, Narakanta Gaonburha is concerned. It is true even if the said presumption is there but contents are required to be proved by the evidence. The Ext-2 is the rectification deed on the basis of which the Dag numbers shown in the Ext-1 were rectified. The first appellate court insisted that the dag Nos. are missing from Ext-1 and Ext-2 which does not contain the suit dag No.337 forming part of the sale transaction by Ext-1. This finding as per Mr. Mozumder is perverse inasmuch as the other sale deeds are on record. Even the certified copy of Jamabandi Ext-16, draft chitha Ext-17 and the certificate issued by the Circle Officer are on record as Ext-18. The said records ought to have been considered with Ext-8 the patta No.105 which was issued in the name of Ramani Mohan Das and Rohini Kumar Das. Having not considered the said exhibits the same amounts to perversity of the findings of the first appellate court.

Mr. Bhowmik submits that even if in the Schedule portion of Ext-1 the dag numbers are missing, the plaintiffs/appellants ought to have called for the secondary evidence of the said sale deed from the Office of the concerned Sub-Registrar, that has not been done. Since the year 1935 various settlement operations were carried out time to time and the plaintiffs/appellants ought to have brought on record the various changes of the original dag number in support of the claim of the plaintiffs/appellants that the land covered by Dag No.337 was the subject matter of Ext-1, the sale deed executed by Narakanta Gaonburha in favour of the Saheb Ali. The said process of settlement ought to have put on record at least, till the date on which the Ext-Kha sale deed was executed in order to establish that said particular dag number was very much in the Ext-1 and that having not done, the subsequent sale deeds cannot be considered by the court and as such, the findings of the first appellate court suffers from no perversity.

I have considered the submissions of the learned counsel. Ext-1 and Ext-2 are two separate sale deeds inasmuch as the vendor in Ext-2 stated that the land in Ext-1 was already sold to another person and the same was covered by Dag No.71. If the contents of Ext-1 are taken into consideration khas possession was delivered to Saheb Ali, purchaser of the land covered by Dag No.71 but not the one as claimed by the plaintiffs/appellants. Ext-2 contains that Ext-1 was cancelled on the strength of the Ext-2. So without a decree of civil court a sale deed cannot be cancelled which clearly shows that the plaintiffs are still bound by Ext-1 which admittedly does not consist of land covered by Dag No.377. So the subsequent sale deeds cannot be taken into consideration for derivation of title from Ext-2 by the plaintiffs/appellants. The settlement records were prepared on the basis of Ext-1 and Ext-2. The Ext-8 patta was issued to Ramani and Rohini, the predecessor of plaintiffs/appellants No.1 and 2 on the basis of Ext-1 which consisted of land other than the one claimed by the appellants. A rectification deed is always supplemental to the principal deed. If the intention of the executant is to cancel the principal deed then Ext-2 cannot be considered as the rectification deed. The plaintiffs/appellants claimed their right, title and interest on the basis of the Ext-1, sale deed of the year 1935 which covers land of Dag No.71 but not the suit Dag. So the substantial questions of law No. A, B and D are also decided against the plaintiffs/appellants. Accordingly, I do not find any merit in the submission of Mr. Mazumdar.

This appeal accordingly stands dismissed. No cost. Send back the LCR.