1. Heard Mr. J. Laskar, learned counsel for the appellant. Also heard Mr. B. Chakraborty, learned counsel for the respondent.

2. This Regular Second Appeal (RSA) under Section 100 of the Code of Civil Procedure, 1908, has been filed by the appellant, namely, Smt. Mandira Das, impugning the judgment and decree dated 24.07.2013 passed in Title Appeal No. 20/2012 by the learned Civil Judge, Jorhat, whereby the said first appeal was dismissed and the judgment and decree dated 22.05.2012 passed by learned Munsiff No. 1, Jorhat in Title Suit No. 99/2006 was affirmed.

3. The facts relevant for consideration of the instant second appeal, in brief, are as follows:

i. That the respondent No. 1, Shri Ajit Ghosh had filed Title Suit against the present appellant and four others, namely, Haradhan Dhar, Anil Ghosh, Amrit Ghosh, Tari Ghosh, and Dulali Rani Ghosh, as pro- forma defendants.

ii. The pro-forma defendants are arrayed in this second appeal as pro-forma respondents.

iii. The aforesaid suit was filed by Shri Ajit Ghosh before the Court of learned Munsiff No. 1, Jorhat and same was registered as Title Suit No. 99/2006.

iv. The said suit was filed for declaring that the sale deed No. 608 dated 20.04.2006 is fraudulent, illegal, void and inoperative and prayer was made for cancellation of the aforesaid sale deed.

v. The prayer was also made in the aforesaid suit for permanent injunction for restraining the defendant No. 1, i.e., the present appellant, her men, agents, employees etc. from entering into the suit premises.

4. It was averred in the plaint filed by the respondent No.1 herein, that his father, late Amulaya Ghosh, had purchased ten lochas of land in Jorhat town, which is described in detail in Schedule-A to the plaint.

5. It has also been pleaded in the plaint that the father of the respondent No.1 was carrying on business in two rooms and later on, his father, late Amulya Ghosh left for Siliguri in West Bengal, where he settled with his family till his death. However, in his absence the property was looked after by one Haradhan Dhar (Respondent No. 2 in this appeal).

6. The respondent No. 1 Ajit Ghosh has also pleaded in his plaint that Haradhan Dhar has been appointed as his lawful attorney by executing a General Power of Attorney on 18.03.2002 to look after the properties of the respondent No. 1 at Jorhat.

7. It is also pleaded in the plaint, that on 10.05.2006, the respondent No. 1/plaintiff came to know that the appellant/defendant No.1 had applied for transfer of holding No. 139 of Jorhat Town, New Hill Road in her name on the ground that she had allegedly purchased the said property from the respondent No. 1/plaintiff by executing a registered sale deed No. 608 dated 20.04.2006.

8. The respondent No.1/plaintiff has further pleaded that the said sale deed was fraudulent and has not been executed by him and accordingly, he prayed for cancellation of said sale deed along with other reliefs.

9. The present appellant/defendant No.1 contested the Title Suit No. 99/2006, wherein he took the plea that the suit is bad for non-joinder of necessary parties, as according to him the Haradhan Dhar had filed the suit without impleading the Ajit Ghosh as defendant.

10. The present appellant/defendant No.1 also took plea that the power of attorney in the name of Haradhan Dhar by Ajit Ghosh is concocted power of attorney as it was executed in the year 2002 whereas the name of the Ajit Ghosh was mutated in records of right in the year 2006 only.

11. On the basis of pleadings of the parties, the Court of learned Munsiff No. 1, Jorhat had framed eight numbers of issues as follows:

i. Issue No.1- whether there is a cause of action for the suit;

ii. Issue No.2- whether the suit is properly valued;

iii. Issue No.3- whether the suit is bad for non-joinder of necessary parties;

iv. Issue No.4- whether the plaintiff has any right, title to appoint the power of attorney holder;

v. Issue No.5- whether the sale date under registration No.608 dated 20.04.2006, is void, illegal;

vi. Issue No.6- whether the sale deed under registration No.608 dated 20.04.2006 is liable to be canceled;

vii. Issue No.7- whether the plaintiff is entitled to get a decree of permanent injunction is prayed for;

viii. Issue No.8- To what relief/reliefs are the parties entitled to

12. During trial, the respondent/plaintiff examined four witnesses to prove his case. Whereas, the appellant/defendant examined herself as the sole witness for the defendant side.

13. While deciding the Issue No.4, the Trial Court took into consideration the oral testimony of PW-3, i.e., Haradhan Dhar as well as the deed of power of attorney, which is exhibited as Exhibit-8(a), which was executed by the respondent/plaintiff in favor of Sri Haradhan Dhar in respect of 10 lochas of homestead lands in Jorhat (which late Amulya Ghosh had purchased during his lifetime). The Trial Court also took into consideration the testimony of the PW- 1 (plaintiff) and the deed of Partition No. 4584 dated 04.05.1990 which is exhibited as Exhibit-4 and it came to the conclusion that as the plaintiff Sri Ajit Ghosh got one- fourth of shares of the homestead land of late Amulya Ghosh in Jorhat, i.e, land measuring two and a half lochas, hence, the power of attorney executed by him in favor of Haradhan Dhar would be valid in respect of two-and-a-half lochas of homestead land in Jorhat only.

14. During the course of the trial, on the prayer of the respondent/plaintiff, the Trial Court allowed the prayer for examination of the signatures of the plaintiff in the Sale Deed No.608 dated 20.04.2006 to be examined through a handwriting expert. Accordingly, the original Sale Deed No. 608 dated 20.04.2006 (containing the disputed signatures) and the specimen signatures of the respondent/plaintiff (taken in the Court on 25.08.2011) and the evidence on an affidavit and cross-examination of the respondent/plaintiff were sent to the Directorate of Forensic Science, Assam, Guwahati for examination by a handwriting expert at the expense of the respondent/plaintiff.

15. The Senior Scientific Officer, Questioned Documents Division, Directorate of Forensic Science, Assam, Guwahati gave the opinion/report dated 07.01.2012, to the effect that the signatures in the Sale Deed No.608 dated 20.04.2016 does not match with the specimen signatures and the signatures on the deposition of evidence. Though, the appellant/defendant filed an application for summoning the handwriting expert for examining him on his report, however, for the reasons best known to the appellant/defendant, she did not take any steps for summoning the handwriting expert. On the basis of the opinion/report of the Scientific Officer, the Trial Court came to the finding that the signatures of seller in the Sale Deed No. 608 dated 20.04.2006 are not the signatures of the respondent/plaintiff and accordingly, it held that the Sale Deed in question is void and illegal and liable to be cancelled.

16. Ultimately, on 22.05.2012, the Court of learned Munsiff No. 1, Jorhat decreed the suit of respondent No.1/plaintiff and declared the Sale Deed No. 608 dated 20.04.2006 as illegal, void and non-operative and also granted the relief of cancellation of aforesaid Sale Deed as well as permanent injunction restraining the appellant/defendant and her men, agents, employees etc. from entering into the suit land.

17. Being aggrieved by the decision of the Trial Court, the appellant/defendant, Smti Mandira Das, preferred a Title Appeal, which was registered as Title Appeal No.20/2012, before the Court of Civil Judge at Jorhat. In the Memorandum of Appeal, before the first appellate court, the appellant/defendant took, inter-alia, following grounds for challenging the impugned judgment of the Trial Court:

i. That, the learned Munsiff erred in declaring that this Sale Deed No.608 dated 20.04.2006 is void and illegal and liable to be cancelled on the basis of the report of the Senior Scientific Officer of the Directorate of Forensic Science, Assam.

ii. That PW-4, who is an Office Assistant of the Sub- Registrar Office, Jorhat produced Thumb Impression Registered during the course of evidence. The learned Lower Court ought to have sent the thumb Impression Registered to the Forensic Expert by observing due procedure to come to a conclusion on the genuineness of the signature of seller Ajit Ghosh in the questioned Sale Deed.

iii. That, learned Lower Court erred in accepting the report of the handwriting expert when it is not duly proved from the side of the plaintiff at whose prayer the signatures were sent for examination.

18. It is pertinent to mention herein that the points of law raised by the appellant in the instant second appeal were not raised by her before the first appellate court.

19. The First Appellate Court framed following point for determination:

a. As to whether the Sale Deed No. 608 dated 20.04.2006 is void and liable to be cancelled.

20. The First Appellate Court concurred with the finding of the Trial Court on the basis of the opinion/report of the Scientific Officer, Questioned Document Division, Directorate of Forensic Science and came to the finding that the disputed signatures in the Sale Deed in questions are not the signature of the respondent/plaintiff.

21. In the instant Regular Second Appeal, by order dated 26.09.2013 following substantial question of law was formulated:

i. Whether the Courts below were justified in decreeing the suit of the plaintiff instituted by power of attorney holder without recording any finding as to whether the schedule of the power of attorney Exhibit 8(a) and the schedule of the plaint is the same property

22. Mr. J. Laskar, learned counsel for the appellant has submitted that both the Court, i.e., the Court of learned Munsif as well as the learned Civil Judge, Jorhat have erred in not considering the fact that the Exhibit 8(a), i.e., the power of attorney was admitted during the trial, under objection filed by the appellant/defendant and the same was filed after about one year of the filing of the Title Suit, which itself creates doubt about the veracity of the said power of attorney.

23. Learned counsel for the appellant has also submitted that the schedule of the property as well as the boundary, which is mentioned in the power of attorney, which has been exhibited as Exhibit-8(a), and the schedule of the plaint in respect of the Sale Deed No. 608 dated 20.04.2006 was cancelled, does not tally, which according to learned counsel for the appellant shows that the person who filed the plaint, i.e., Haradhan Dhar was not the lawful attorney of the plaintiff in respect of the suit land.

24. On the other hand, learned counsel for the respondent/plaintiff has submitted that the Trial Court, while deciding the Issue No. 4, has considered the Exhibit- 8(a), which was executed by the plaintiff in favour of Haradhan Dhar, and came to the finding that the General Power of Attorney Exhibit-8(a), which has been executed by the respondent/plaintiff, was for 10 lochas of homestead land in Jorhat. However, due to the partition of properties amongst the legal heirs of Late Amulya Ghosh, only one- fourth share of the properties fell in the share of the respondent/plaintiff, and thereby, the Trial Court came to the conclusion that the power of attorney Exhibit-8(a) executed by the respondent/plaintiff in favor of Shri Haradhan Dhar would still be valid only in respect of one- fourth portion out of ten lochas of homestead land in Jorhat, i.e., in respect of two and a half lochas of homestead land in Jorhat and Shri Haradhan Dhar can validly do only specified acts on behalf of respondent/plaintiff in respect of two and a half lochas of homestead land in Jorhat.

25. Learned counsel for the respondent/plaintiff has submitted that the Title Suit No. 99/2006 was not filed by the attorney Haradhan Dhar, but it was filed by the principal, i.e., Ajit Ghosh, which will be apparent on perusal of the plaint of the said suit. It was only the affidavit supporting the complaint, which was shown by the lawful attorney of the plaintiff and the plaint was signed by the attorney holder Haradhan Dhar for which he had the authority by virtue of the power of attorney, which is exhibited as Exhibit-8(a).

26. On perusal of the plaint filed in Title Suit No. 99/2006, it appears that the suit was filed in the name of the plaintiff Ajit Ghosh and not in the name of Haradhan Dhar. The power of attorney holder only signed the plaint as well as the verification and the affidavit supporting the plaint.

27. As per Order 6 Rule 15 of the Code of Civil Procedure, 1908, the pleadings may be verified by any person, who is proved to the satisfaction of the Court to be acquainted with the facts of the case and he may also furnish the affidavit in support of such pleading, which has been done in this case.

28. In this case the plaintiff himself adduced evidence as PW-1 and as the power of attorney holder, Haradhan Dhar was given power of attorney Exhibit-8(a) in respect of homestead land measuring 10 lochas of land, originally belonging to the predecessor in interest of the respondent/plaintiff, in Jorhat and as the Sale Deed in question was in respect of two and a half lochas of the said land only over which two shop rooms having municipality holding No.139 were standing. Moreover, in view of the finding of the Trial Court in respect of the issue No.4, as discussed hereinbefore, no doubt remains as to the question that the Sale Deed pertains to the plot of land in respect of which power of attorney was given by the plaintiff to the said Haradhan Dhar.

29. The question in the instant second appeal is as to whether the substantial question of law formulated by this Court on 26.09.2013 is involved in this appeal or not. So, if we go through the impugned judgement of both the Courts, i.e., the Court of learned Munsiff, Jorhat as well as the learned Civil Judge, Jorhat, it is apparent that the Sale Deed in question, i.e., Sale Deed No. 608 dated 20.04.2006 was held to be void illegal and inoperative in view of the fact that on the basis of the report/opinion of the Senior Scientific Officer, Questioned Document Division, Directorate of Forensic Science, Guwahati, it was found that the signatures on the impugned Sale Deed were not of the plaintiff and the said report of the Senior Scientific Officer could not be contradicted by the appellant/defendant. As such circumstances the outcome of the substantial question of law formulated by this Court would not in any manner affect the merit and finding arrived at by both the Courts on the validity of the impugned Sale Deed, which was directed to be cancelled by the impugned judgments.

30. In Paragraph No. 12 of the impugned judgment of the learned Munsif No. 1, Jorhat, it has been categorically held that the suit has been instituted by the plaintiff himself and not by his power of attorney holder and in view of the aforesaid finding the substantial question of law formulated by this Court on 26.09.2013 does not have any bearing on the outcome of the Title Suit No. 99/2006 as well as the first appeal, i.e., the Title Appeal No. 20/2012, therefore, this Court is of considered opinion that the above- mentioned substantial question of law is not involved in this appeal, as it would not affect the outcome of the Trial Courts finding as well as First Appellate Court finding.

31. This Court is of considered opinion that the judgments delivered by both the Courts, i.e., the Court of learned Munsiff No. 1, Jorhat as well as the learned Civil Judge, Jorhat have dealt with the entire matter judiciously, holding that the sale deed in question does not bear the signature of the plaintiff and same is therefore, liable to be cancelled. This Court is not inclined to interfere with the concurrent findings of both the Courts.

32. For the reasons mentioned herein before in this judgment This appeal is devoid of any merit and same is dismissed affirming the judgments passed by both the Courts, namely, Court of learned Munsiff No. 1 and learned Civil Judge, Jorhat.

33. Prepare decree accordingly, so that same may be the part of the Trial Court record.

34. Send back the records of the Trial Court as well as the First Appellate Court immediately with a copy of this judgment.