1. Heard Mr. I. Hussain, learned counsel for the appellants. Also heard Mr. S.K. Ghosh, learned counsel appearing for the respondents.

2. This second appeal is directed against the judgment and decree dated 25.3.2003 passed by the learned Civil Judge (Senior Division), Goalpara in Title Appeal No. 16/2001 dismissing the appeal and affirming the judgment and decree dated 24.8.2001 passed by the learned Civil Judge (Junior Division) No. 1, Goalpara in Title Suit No. 26/1997.

3. The suit land measuring 2 bigha 2 katha 10 lechas was originally owned and possessed by one Kalimuddin Sheikh.

4. The case set out in the plaint is that the said land was proposed to be sold to the predecessor Suraj Ali by Kalimuddin Sheikh and consideration amount was fixed at Rs. 5,150/- and Suraj Ali, thereafter paid Rs. 4,750/- on 7.10.1987 and a document was executed on that day. While accepting Rs. 4,750/- he promised to execute a sale deed on receipt of the balance amount of Rs. 400/-, in favour of Suraj Ali and his three brothers, plaintiff Nos. 1 to 3. It was pleaded that the said amount of Rs. 5,150/- was given from common earnings of Suraj Ali and his brothers. Possession was delivered on 10.10.1987 and since then they had been continuously possessing the suit land. After about one week of delivery of possession, Kalimuddin Sheikh suddenly expired. The defendant Nos. 1 to 5 are his heirs. One son Abdur Rahman having expired, his wife is impleaded as defendant No. 6. Despite repeated requests and offer of balance price of the suit land, the sale deed was not executed on this or that pretext and in the month of May 1993, finding no alternative a village ‘Mel’ was called where balance amount of Rs. 400/- was accepted by the defendants and they consented to record the name of Suraj Ali in the revenue record. Accordingly, name of Suraj Ali was mutated. In the month of March, 1996 the defendants refused to execute the sale deed and apart from that, the defendants initiated a proceeding to cancel the mutation granted in favour of Suraj Ali and on 20.5.1996 mutation was cancelled on the ground that there was no sale deed in favour of Suraj Ali. After mutation was cancelled, there were repeated attempts to dispossess the plaintiffs and in one such attempt, Suraj Ali was severely assaulted by the defendants on the suit land and later on, he succumbed to his injuries in the hospital. Accordingly, the suit was filed by the plaintiffs for decree of part-performance of the agreement directing the defendants to execute the sale deed jointly in favour of the plaintiffs and other consequential reliefs.

5. The defendants in the written statement took a plea that they are possessing the suit land. They denied the case of the plaintiffs in toto. In addition to that, a stand was taken that Kalimuddin Sheikh died in June, 1986. Grant of mutation was attributed to an act of collusion with revenue staff and it was pleaded that coming to know about the same, the defendants initiated a proceeding which resulted in cancellation of the mutation granted in favour of Suraj Ali.

6. On the basis of the pleadings, numbers of issues were framed of which issue No. 5 was as to whether Kalimuddin Sheikh, the predecessor-in-interest of defendants had executed a deed of agreement to sell the suit land at a price of Rs. 5,150/- out of which he had received part-payment of Rs. 4,750/- on 7.10.1987 from the plaintiff, namely, Suraj Ali. Issue No. 6 was whether Kalimuddin Sheikh delivered possession of the suit land to the plaintiffs and Suraj Ali, after execution of the agreement for sale on receipt of part price. Issue No. 7 was whether defendant No. 1, 2 and their brother Late Abdur Rahman received balance price of Rs. 400/- for the suit land and gave consent for mutation of Suraj Ali’s name in the revenue records of the suit land. Issue No. 8 was whether the plaintiffs were possessing the suit land.

7. During trial, six witnesses were examined on behalf of the plaintiffs and numbers of documents were exhibited. The defendants also examined three witnesses and some documents were exhibited.

8. The learned trial court, relied on Ext. 1, a document stated to have been executed by Kalimuddin Sheikh on 7.10.1987. Receipt of Rs. 400/- was also believed. It was also noted that though a plea was taken by the defendants that Kalimuddin Shiekh died in the month of June 1986, no acceptable evidence was placed on record by the defendants to that effect. Possession was also held to have been delivered by Kalimuddin Sheikh after execution of the agreement on 7.10.1987. Accordingly, the learned trial court decreed the suit.

9. The learned appellate court, on consideration of the evidence on record, concurred with the finding recorded by the learned trial court.

10. This second appeal was admitted to be heard on 11.9.2003 on the following substantial question of law:

'1. Whether the Ext. 1 was duly proved and got any evidence in accordance with law?'

11. Mr. I. Hussain, learned counsel for the appellants has submitted that PW 3, the alleged scribe of Ext. 1, by the time he came to depose before the Court, was unable to see and therefore, his evidence cannot be taken into consideration with regard to Ext. 1, though the contents of Ext. 1 was read over to him. He has also submitted that while PW 4 and PW 5 had stated Ext. 1 was written in the house of Kalimuddin Sheikh and transaction of money also took place therein, PW 3 had stated that Ext. 1 was written in his house and money was also paid in his house. He has also submitted that there is contradiction with regard to measurement of the land amongst the witnesses of plaintiffs. He has submitted that while PW 1 had stated that land was measured by a rope, PW 4 and 5 had stated that suit land was measured by nal, a kind of bamboo pole. He has submitted that Suraj Ali had fraudulently entered his name in the records of right and coming to know about such fraudulent act, the defendants initiated proceeding which resulted in cancellation of the mutation granted in favour of Suraj Ali. He has submitted that failure on the part of the defendants to produce any document relating to death of Kalimuddin Sheikh will not matter much as it is for the plaintiffs to prove their case. Accordingly, he submits that Ext. 1 was not proved in accordance will law and therefore, the learned courts below acted illegally in decreeing the suit in favour of the plaintiffs.

12. Mr. S.K. Ghosh, learned counsel appearing for the respondents, on the other hand, submits that PW 3 was unable to see properly and because of that his evidence does not become inadmissible. PW 3 himself stated that he wrote Ext. 1 after the same was read over to him. His evidence was supported by PW 1, PW 4 and PW 5. If the defendants had such clinching evidence that Ext. 1 was a fraudulent document, the same having been executed after the death of Kalimuddin, they could have certainly produced documentary evidence. It is submitted by him that in the facts and circumstances of the case, inability of the defendants to adduce any documentary evidence that Kalimuddin died prior to execution of the agreement leads credence to the falsity of their case. Both the courts below have, on the basis of appraisal of evidence on record, had given concurrent finding of fact that possession was handed over to the plaintiffs and in absence of failure on the part of the defendants to point out any perversity in the findings, this Court may not interfere with the judgments of the courts below. It is submitted that contradictions pointed out by Mr. Hussain with regard to Ext. 1 is not of any significance.

13. I have considered the submissions of the learned counsel for the parties and perused the materials on record.

14. In his evidence, PW 1 had stated that Md. Rustom Ali, PW 3 had written the agreement for sale and he had appended his signature thereon in his presence. He had not deposed where the said agreement for sale was written. He had also not stated in whose presence amount was paid. It has come out in his evidence that possession was delivered after execution of the agreement for sale on 10.10.1987. He had also deposed that the land was measured by Md. Kasem Ali and Md. Torab Ali by rope. PW 2 deposed that Kalimuddin Sheikh had informed him that he had sold a plot of land and that Kalimuddin Sheikh had himself delivered possession to Suraj Ali. PW 3 had categorically stated that Kalimuddin had taken a sum of Rs. 4,750/- in his presence and he had written Ext. 1 and that Kalimuddin had affixed his thumb impression. In his cross-examination, he had stated that the agreement for sale was written in his house. At the same time he had also stated that he could not say whether Rs. 4,750/- was paid in Kalimuddin’s house. He had further stated that he had neither seen the land that was sold nor present at the time when delivery of possession was effected. That one Abdul Baten, though was shown to be a witness to the deed, was not present. PW 4 had stated that at the time of writing of the document he was not present. In cross-examination he had, however, stated that he had witnessed payment of money which was given in the house of Kalimuddin. He had also stated that the documentation was done in the house of Kalimuddin. Regarding payment of Rs. 400/- he stated that the said amount was taken by the wife of Kalimuddin. PW 4 stated that possession was delivered after measuring the land with ‘nal’. PW 5 had also categorically stated that he was present at the time when the document was prepared in the residence of Kalimuddin and monetary transaction had taken place there only. In his evidence he had stated that immediately after taking the amount, possession was delivered which is contrary to what PW 1 had stated. According to him, it was delivered on 10.10.1987. In Ext. 1, there is no recital that even before receipt of Rs. 400/-, possession will be delivered immediately. While PW 5 had stated that at the time of writing of the deed, apart from others, Torab Ali was also present. Torab Ali, who examined himself as PW 4, however, stated that he was not present at the time of writing of the deed.

15. It was alleged in the plaint that Kalimuddin had stated that he would execute the sale deed in favour of Suraj Ali and three brothers, namely, plaintiff Nos. 1, 2 and 3. Ext. 1 does not refer to PW 1, 2 and 3 at all and it had only referred to Suraj Ali, who also expired in the year 1996, prior to filing of the suit.

16. In the plaint, there was no specific mention about any deed of agreement for sale. What was referred to was a receipt. Though boundary was given, there is no reference to any Dag No., or Patta No., in Ext. 1. Reference of any Dag No., or Patta No., may not be relevant in all circumstances. But in the context of the case when the alleged executant is no more and the entire case hinges, primarily, on the testimony of one witness, the same has assumed some significance. PW 1 was non-committal though he is the only plaintiff who was examined. PW 1 had made a general statement that the defendants had taken Rs. 400/- in the year 1993 without specifying who had accepted the amount. No receipt was exhibited and he also stated that he was prepared to pay Rs. 400/- again. He had denied the suggestion that the thumb impression on Ext. 1 was not that of Kalimuddin. When receipt was taken for payment of Rs. 4,750/-, it is also important to note that there is no receipt of payment of Rs. 400/-. Furthermore, there are also inconsistencies in the evidence as to who had received the said amount of Rs. 400/. True, the defendants had not been able to produce any documentary evidence that Kalimuddin had expired in 1986. That is only one of the many circumstances which will weigh with the Court, but that cannot be the single determinative feature for decreeing the plaintiffs’ suit. It is the burden of the plaintiffs to prove the case with acceptable evidence. When there are so many contradictions with regard to the place of execution of Ext. 1, transaction of money and delivery of possession, all of which are vital aspects given the nature of the case, it cannot be said that the pl

aintiffs had proved their case and that on the preponderance of probabilities they are entitled to a decree. 17. The learned appellate court, relying solely on the basis of the evidence of PW 3, had held that Ext. 1 was duly proved. The evidence of PW 4 and PW 5 have not even been noted while deciding validity of the execution of Ext. 1. Discrepancy in the deposition of witnesses of plaintiffs in respect of delivery of possession was held to be inconsequential only because PW 1 had stated that possession was delivered to him. 18. The mutation in favour of Suraj Ali or cancellation of the mutation subsequently at the instance of the defendants cannot tilt the scales either way. Crux of the matter is whether Ext. 1 was duly proved. 19. On totality of the circumstances and the evidence on record, I am of the considered opinion, that having regard to the gross inconsistencies and contradictions in the evidence of the plaintiffs going to the root of the matter, the plaintiffs have not been able to prove their case on the basis of Ext. 1. 20. In view of the above discussions, the impugned judgment and decree of the learned courts below are set aside. Substantial question of law is answered accordingly. Plaintiffs’ suit is dismissed. The appeal is allowed. No cost. 21. Registry will send back the LCR.