JUDGMENT B.P. Katakey, J. 1. This appeal by the plaintiff is directed against the judgment and decree dated 24.04.2002 passed by the learned Civil Judge (Sr. Division), Nagaon in Title Appeal No. 27/2000, allowing the appeal preferred by the defendant Nos. 1, 4 and 11, thereby dismissing the suit of the plaintiff, by setting aside the judgment and decree dated 24.05.2000 passed by the learned Civil Judge (Junior Division) No. 1, Nagaon in Title Suit No. 8/1995, whereby and whereunder the suit of the plaintiff was initially decreed. The appellant as plaintiff instituted the aforesaid suit for declaration of right, title and interest in respect of 1 katha 151/2 lechas of land covered by annual patta No. 39 (old), 33 (new), more fully described in Schedule-A to the plaint and also for confirmation of possession in respect of Schedule-B land as well as for recovery of khas possession in respect of Schedule-C land by evicting the defendant Nos. 1, 4 and 11 therefrom by demolishing the structures raised thereon. Schedule-B and Schedule-C land are part of Schedule-A land. The pleaded case of the plaintiff is that the land measuring 1 katha 151/2 lechas (Schedule-A land) originally belonged to one Md. Taher, S/O Lt. Mohammad Hussain, uncle of the plaintiff, who has executed an Will bequeathing the said property in favour of the plaintiff. According to the plaintiff, after the death of Taher on 27.12.1991, the Will was probated and consequently the plaintiff has got right, title and interest over the suit land. It is also the pleaded case of the plaintiff that during the lifetime of Taher, he inducted the defendant No. 1, in a portion of the suit land as licensee, on condition that as and when asked for the defendant No. 1 would vacate the land. It is also the pleaded case of the plaintiff that after the death of Taher, though the plaintiff had asked the defendant No. 1 to vacate the suit land, he did not do so. It has also been pleaded that on or about 15.12.1993 the defendant Nos. 22 and 23 without the knowledge of the plaintiff entered to the suit land and constructed the houses thereon despite the protest by the plaintiff and they have also denied the title of the plaintiff. It has also been pleaded that on or about 15.12.1993 the defendant Nos. 22 and 23 without the knowledge of the plaintiff entered to the suit land and constructed the houses thereon despite the protest by the plaintiff and they have also denied the title of the plaintiff. Further pleaded case is that the defendant No. 1 has also denied the plaintiff's title, which necessitated filing of the suit. 2. The defendant Nos. 1, 4 and 11 as well as 22 and 23 contested the suit by filing two sets of written statements. The defendant Nos. 1, 4 and 11 in their written statement have pleaded that the suit land along with other land originally belonged to Mohammad Hussain and after his death the said land devolved on three sons, namely, Taher, Wahid and Amijur. It is the pleaded case of the said defendants that Amijur sold his share of land measuring 2 kathas 2 lechas in favour of the defendant No. 1, for which, however, no sale deed has been executed. They have also claimed that the defendant No. 1 has acquired the right over the property by adverse possession having occupied the suit land for more than 12 years openly and denouncing the title of the rightful owner since the year 1962. According to them, they came into possession of the said land on being put by Amijur. The defendant Nos. 22 and 23 in their joint written statement have claimed that land measuring 1 katha 14 lechas was sold to them by the plaintiff by a registered deed of sale No. 4140/92. 3. Based on the pleadings of the parties, the Trial Court framed the following issues for determination:- (i) Whether there is any cause of action for the suit? (ii) Whether the plaintiff has right, title and interest over the suit land? (iii) Whether the plaintiff, as attorney of Abu Jaffar sold 1 katha 14 lechas of land in favour of the defendant No. 1 and delivered possession thereof? (iv) Whether the plaintiff has been in possession of the suit land? (v) Relief, if any, the either party is entitled to? Addl. Issues: (vi) Whether the suit is barred by right of adverse possession? (vii) Whether the defendant No. 1 is possessing the suit land by constructing permanent structure over the same on obtaining possession about 33 years back? 4. (v) Relief, if any, the either party is entitled to? Addl. Issues: (vi) Whether the suit is barred by right of adverse possession? (vii) Whether the defendant No. 1 is possessing the suit land by constructing permanent structure over the same on obtaining possession about 33 years back? 4. The Trial Court on the basis of the evidence on record, both oral and documentary, decreed the suit of the plaintiff declaring right, title and interest in respect of the Schedule-A land, confirmation of possession in respect of the Schedule-B land and recovery of khas possession in respect of the Schedule-C land. 5. Being aggrieved the defendant Nos. 1, 4 and 11 have filed the aforesaid appeal, which has been allowed by the Appellate Court vide judgment and decree dated 24.04.2002 by holding that no right, title and interest of the plaintiff in respect of Schedule-A land can be decreed, since the suit land is covered by annual patta land standing in the name of Md. Taher, the same being not transferable and heritable. The First Appellate Court has also held that the plaintiff, therefore, would not acquire any title over the said land covered by annual patta by virtue of the Will. It has further been held that the defendant No. 1 is possessing the suit land by constructing permanent structure for last several years. The issue relating to non-joinder of necessary parties has also been answered against the plaintiff holding that the suit is bad for non-joinder of two sons of Amijur Rahman, son of Mohammad Hussain. Hence the present appeal. 6. The appeal was admitted for hearing vide order dated 01.10.2002 on the following substantial questions of law:- (i) Whether the suit land measuring 1 katha 151/2 lechas is transferable or not and whether the defendant No. 1 is a permissive occupier of the suit land? (ii) Whether the findings of the first appellate court that the annual patta land is neither transferable nor heritable is a reasoned finding or not and, whether the right, title and interest of the defendant No. 1 over the suit land is perfected by adverse possession or not? During pendency of the appeal the defendant No. 1/respondent No. 1 Md. Nekbor Ali died and in his place the present respondent Nos. 1(i) to 1(iv) have been substituted being the legal heirs. 7. I have heard Mr. During pendency of the appeal the defendant No. 1/respondent No. 1 Md. Nekbor Ali died and in his place the present respondent Nos. 1(i) to 1(iv) have been substituted being the legal heirs. 7. I have heard Mr. A. Sarma, learned counsel for the appellant and Mr. B.R. Dey, learned Sr. counsel assisted by Ms. T. Goswami, learned counsel appearing for the respondent Nos. 1(i) to 1(iv), 2 and 3. None appears for the respondent Nos. 4 and 5. 8. It has been contended by the learned counsel for the appellant that the first appellate court has dismissed the suit of the plaintiff on the ground that the suit land being covered by annual patta no right, title and interest of the plaintiff can be decreed as such land is non-transferable and heritable, which according to the learned counsel is not correct proposition of law. It has also been submitted since first appellate court has already held that the land belongs to Md. Taher Ali, in whose name annual patta stands, ought not to have dismissed the suit of the plaintiff as not maintainable due to non joiner of two sons of Amijur Rahman, who is one of the brothers of Md. Taher Ali. The learned counsel further submits that no finding relating to the acquisition of right by the defendant No. 1 by adverse possession has been recorded. The learned counsel, therefore, submits that since the first appellate court has reversed the judgment passed by the trial court without discussing the evidence, the appeal may be remitted to the first appellate court for deciding afresh by setting aside the appellate judgment. 9. The learned senior counsel appearing for the respondent Nos. 1 to 3 on the other hand supporting the judgment passed by the first appellate court has submitted that the defendant No. 1 being in possession of the suit property since 1962, his right over the land has perfected by adverse possession and consequently even if the plaintiff had right, title and interest, the same has extinguished. 10. I have considered the submission advanced by the learned counsel for the parties and also perused the judgments and decrees passed by the courts below. 11. It appears from the judgment passed by the first appellate court that though the trial court has framed issue relating to adverse possession as claimed by the defendant Nos. 10. I have considered the submission advanced by the learned counsel for the parties and also perused the judgments and decrees passed by the courts below. 11. It appears from the judgment passed by the first appellate court that though the trial court has framed issue relating to adverse possession as claimed by the defendant Nos. 1, 4 and 11 in their written statement, the same, however, was not taken as one of the points for determination by the first appellate court, which has framed the following three points for determination: (a) Whether the plaintiff has right, title and interest over the suit land? (b) Whether the defendant No. 1 has been in possession of the suit land by constructing permanent structure over the same? (c) Whether the suit is bad for non-joinder of necessary parties? 12. The first point for determination has been answered against the plaintiff on the ground that since the suit land is covered by annual patta standing in the name of Md. Taher and annual patta land being neither transferable nor heritable the plaintiff would not acquire right, title and interest by virtue of the Will executed by Md. Taher, which has been probated. The said finding by the first appellate court is not the correct proposition of law as such land is transferred with the limited right of use and heritable till the annual patta continues. 13. The second point for determination has been answered in favour of the defendant No. 1 by holding that he is possessing the suit land by constructing permanent structures for several years without, however, recording any finding about the date when he came into possession. The plea of adverse possession, as noticed above, has also not been decided by the first appellate court. 14. The third point has been answered against the plaintiff holding that the suit is bad for non-joinder of two sons of Amijur though the first appellate court itself has recorded the finding that the suit land belongs to Md. Taher, who is the brother of Amijur Rahman. 15. That being the position the judgment and decree passed by the first appellate court needs to be interfered with and hence the same is set aside. 16. Taher, who is the brother of Amijur Rahman. 15. That being the position the judgment and decree passed by the first appellate court needs to be interfered with and hence the same is set aside. 16. The appeal is remitted to the first appellate court for deciding the same afresh on the basis of the evidence already on record, within a period of two months from the date of appearance of the parties. 17. The parties are directed to appear before the first appellate court on 09.09.2013. 18. The appeal is according allowed to the extent indicated above. No cost. The Registry is directed to send down the records to the first appellate court so as to reach the said court before the date fixed for appearance of the parties by this court. Appeal allowed