ORDER (Oral) [1] Principal defendants in Title Suit No. 54 of 1979 has preferred this Second Appeal challenging the concurrent findings of the learned Courts below. Suit of the plaintiff Lalchand Nomosudra, for declaration of his right, title and interest with respect to 2 Kathas 3 Chataks 10 Gondas described in Schedule 2 of the plaint and for recovery of Khass possession thereof by evicting the defendants, was decreed by the learned trial court and on appeal the said decree was upheld. [2] Lalchand Nomosudra, the plaintiff instituted Title Suit No. 54 of 1979 in the Court of learned Sadar Munsiff, Hailakandi, stating that land measuring 2B 2K 7Ch described in Schedule 1 to the plaint and covered by Dag No. 1883 & 1882 of Second R.S. Patta No. 218 situated in Mauza Hailakandi town, Porogonah Hailakandi, District Cachar was originally owned and possessed by Durga Sundari Dutta Gupta & Suhsila Sundari Dutta Gupta. The predecessor of the plaintiff purchased this land from the original owners by registered sale deed dated 12.05.1961 and continued enjoying the same without any let or hindrance from any quarter. But by taking opportunity of the absence of the plaintiff and his family members, the defendants No.2 & 3 encroached into the Schedule 2 land on 18.03.1978 and raised a bamboo fencing thereby dispossessing the plaintiff from a portion of his land. Having come to know about such dispossession, the plaintiff filed a police case on the following day leading to registration of G.R. Case No. 223 of 1978. In course of trial of the said proceeding the learned Magistrate observed that the dispute is civil in nature and so, parties should get their claim settled in competent Civil Court. According to the plaintiff, in view of encroachment made by the Defendants No.2 & 3 on 18.03.1978 over Schedule 2 land within Schedule 1 of the plaint the right, title and interest of the plaintiff with respect to Schedule 2 land was clouded. It is under such circumstances the suit for declaration of right, title and interest with respect to Schedule 2 land and for recovery of possession by evicting the defendants from the suit land became necessary. [3] The defendants appeared in the case and by filing written statement contested the case of the plaintiff showing that they did not dispossess the plaintiff in any point of time. [3] The defendants appeared in the case and by filing written statement contested the case of the plaintiff showing that they did not dispossess the plaintiff in any point of time. The defendants are owners in possession of the land to the adjacent West to the plaintiff’s land which is covered by Dag No. 1885 of the said Mouza. It is the case of the plaintiff that land of Dag No. 1883 was originally owned by one Safi Md. Lalu Mia. The descendant of Md. Lalu Mia who was Gulu Mia who sold 4K 12Ch land to the defendant No.2 in the Northern part of the Dag while the remaining part of land sold to Tamal Krishna Paul who on turn sold the land to defendants No. 1 on 08.03.1978. It is the case of the defendants that they have been possessing their own land covered by Dag No. 1885 and the said land does not at all fall under Dag No. 1885. On the basis of the aforesaid contention of the parties, the learned trial court framed as many as 7 issues and subsequently 2 additional issues were also framed. All these issues i.e. initial 7 issues and subsequent 2 additional issues are quoted below for ready reference: 1) Is there any cause of action? 2) Is the suit barred by limitation? 3) Is the suit barred by waiver, estoppels and acquiescence? 4) Is the suit bad for non-joinder and mis-joinder of parties? 5) Whether title of the plaintiff has been properly traced out? 6) Whether the story of possession and dispossession is true? 7) To what relief if any the plaintiff entitled to? ADDITIONAL ISSUES 8) Whether the defendants have encroached upon any land belonging to the plaintiff on and from 18.03.1978 as alleged? 9) Whether the plaintiff is entitled to recovery of Khas possession and, if so, what should be the area?” [4] Both the parties adduced oral and documentary evidence. Plaintiff examined 2 witnesses. The Amin Commissioner who surveyed the land was also examined as P.W. 3 in this case. The defendants examined 3 witnesses. 9) Whether the plaintiff is entitled to recovery of Khas possession and, if so, what should be the area?” [4] Both the parties adduced oral and documentary evidence. Plaintiff examined 2 witnesses. The Amin Commissioner who surveyed the land was also examined as P.W. 3 in this case. The defendants examined 3 witnesses. Learned trial court by his judgment and decree dated 31.07.1999 considered the oral evidence of P.W. 1 & 2 to hold that the defendants encroached into the land covered by Dag No. 1883 and relying on the report of Amin Commissioner which is marked as Exhibit X and Exhibit Y by P.W. 3, the learned court found that the defendants dispossessed the plaintiff from land measuring 2K 3Ch 10G under Dag No. 1883. Having so found, the learned trial court decreed the suit for recovery of Khass possession of the suit land measuring 2K 3Ch 10G. This judgment of the learned trial court was challenged by the principal defendants before the First Appellate Court vide Title Appeal No. 28 of 1999. The learned Civil Judge (Senior Division), Hailakandi by judgment and decree dated 21.11.2002 dismissed the appeal upholding the findings of the learned trial court. By discussions made in Paragraphs-7 & 8 of the appellate judgment, the learned Appellate Court found that plaintiff was not present at the time of alleged encroachment by the defendants No.2 & 3. The plaintiff was informed by one Siddeque Ali and Gabru Mia. Siddeque Ali was examined as P.W.2 who deposed that one day when the plaintiff and his family members were absent, the defendants No.2 & 3 encroached a part of the home stead land of the plaintiff by raising bamboo fencing. This was informed to the plaintiff in the evening of the same day when the plaintiff had returned home. The plaintiff filed a police case on the following day and thereafter, the suit was filed. The learned First Appellate Court also considered Exhibit-X & Exhibit-Y which are the report and sketch map respectively submitted by P.W.3 Amin Commissioner. By filing an objection against the Amin Commissioner’s report, the defendants No.2 & 3 prayed that the same be kept out of the record. There was no order for further commissioned under Order XXVI Rule 10(3) of the Coe of Civil Procedure. By filing an objection against the Amin Commissioner’s report, the defendants No.2 & 3 prayed that the same be kept out of the record. There was no order for further commissioned under Order XXVI Rule 10(3) of the Coe of Civil Procedure. The learned First Appellate Court placed reliance on Exhibit-X & Exhibit-Y. The learned Trial court had arrived at the same finding that defendants had dispossessed the plaintiff from 2K 3Ch 10G land covered by Dag No. 1883 and thus, upheld the decree passed by the learned trial court. Against such concurrent findings of the learned courts below the present Second Appeal has been preferred by legal heirs of the principal defendants. This Court on 30.05.2002 admitted the Second Appeal on the following substantial question of law: “Whether the finding of the learned trial court which was affirmed by the learned appellate court about the alleged act of encroachment over the land of plaintiffs/ respondents by the defendants/ appellants is correct and based on evidence?” [5] I have heard Mr. N. Dhar, learned counsel for the appellants. None appears for the respondents. [6] The task before this Court is to decide the substantial question of law framed by this Court at the time of admission of the Second Appeal. As stated above the sole substantial question of law is to examine as to whether finding of fact in regard to encroachment of defendants is correct and based on evidence. The learned trial court found that P.W.1 the plaintiff was not present when the alleged dispossession had taken place. The defendants No.2 & 3 encroached a part of the land of the plaintiffs covered by Dag No. 1883 and raised bamboo fencing there. This was done at the time when the plaintiff or his family members were not present. The plaintiff was informed about the dispossession by P.W. 2 (Siddique Ali) and one Gabru Mia. Gabru Mia had died when the trial of the suit had commenced. Under such circumstances, the plaintiff examined Siddique Ali alone. He was examined as P.W. 2. Siddique Ali stated that he knew both the sides being boundary witness. He stated that about 3 years ago from the date of his deposition, the defendants No.2 & 3 raised a bamboo fencing covering a part of the home stead land of the plaintiff. Under such circumstances, the plaintiff examined Siddique Ali alone. He was examined as P.W. 2. Siddique Ali stated that he knew both the sides being boundary witness. He stated that about 3 years ago from the date of his deposition, the defendants No.2 & 3 raised a bamboo fencing covering a part of the home stead land of the plaintiff. He and Gabru Mia informed this to the plaintiff whereupon the plaintiff lodged a police case on the following day. Siddique Ali, therefore, being an eye witness deposed before the learned trial court that although he had witnessed the act of dispossession by the defendants, however, in course of cross examination he could not say what exact amount of land was taken into possession by the defendants No.2 & 3 by their aforesaid act of dispossession. At the prayer of the parties, the learned trial court appointed a Survey Commission under the provision of Order XXVI Rule 9 of the Code Civil Procedure to elucidate the matter of the dispute as to factum of alleged dispossession by the defendants No.2 & 3. The Amin Commissioner held survey and submitted Exhibit X ‘report’ & Exhibit Y ‘Sketch Map’. Both the plaintiff and defendants submitted objection against the report, whereupon Amin Commissioner was examined as P.W.3. In course of his cross examination Amin Commissioner stated that he surveyed Dag No. 1885 & 1883. It is to be noted here that as per the version of the defendants they purchased land under Dag No. 1885 which was originally owned by Lalu Mia. The land covered by Dag No. 1885 falls to the West of the suit land. The land of the respondents is covered by Dag No. 1883 which the original plaintiff purchased from its original owners Durga Sundari Dutta Gupta & Suhsila Sundari Dutta Gupta. What is apparent in this case is this that the defendants do not claim to have any title in Dag No. 1883 and similarly, the plaintiff does not stake claim to the land covered by Dag No. 1885. The Defendants No.2 & 3 are owners in possession of land covered by Dag No. 1885, whereas claim of title of the plaintiff is confined to Dag No. 1883 alone. The Defendants No.2 & 3 are owners in possession of land covered by Dag No. 1885, whereas claim of title of the plaintiff is confined to Dag No. 1883 alone. Situated thus the task before the learned Courts below was to see as to whether suit land was covered by Dag No. 1883 or it fell under Dag No. 1885. To elucidate this matter in dispute Commission under Order XXVI Rule 9 was appointed. Although in their objection the defendants No.2 & 3 claimed that Amin Commissioner submitted report as Exhibit X & sketch map as Exhibit Y without conducting