JUDGMENT : Heard Ms. T. Goswami, learned counsel for the appellant. This appeal was heard on three dates, i.e., on 31.08.2015, 04.09.2015 and 07.09.2015. None had appeared for the respondents in all these dates. 2. This Second Appeal is presented by the plaintiff against the judgment and decree dated 25.11.99, passed by the learned Civil Judge, Senior Division, Barpeta, in Title Appeal No. 2/98, dismissing the appeal and affirming the judgment and decree dated 11.12.97, passed by the learned Civil Judge, Junior Division, Bajali, in Title Suit No. 16/96. 3. The appeal was admitted to be heard by an order passed on 13.03.2000 on the following substantial questions of law:- “1. Whether the suit is barred by the principles of res judicata ? 2. Whether the learned lower appellate court’s holding the defendants as khatiandars was sustainable in view of the order, Ext.-6, cancelling the Khatian ?” 4. Ms. Goswami, learned counsel for the appellant has submitted that the word “decision”, in substantial question No. 2 is inadvertently dropped. I agree with her submission. 5. The case, as projected in the plaint, shorn of details, is to the effect that one Surendranath Roy was the owner in possession of 10 Bigha 0 Katha 5 Lecha of land out of which 4 Bigha 4 Katha 7 Lecha was in Dag No. 243 and 5 Bigha 0 Katha 8 Lecha in Dag No. 327, both the Dags being under periodic Patta No. 117 of Poinalguri Mauza, Bajali. The aforesaid land, measuring 10 Bigha 0 Katha 5 Lecha is the suit land. The suit land was attached in a court proceeding on 22.01.63, in execution of Money Suit No. 318/62. Surendranath Roy, in order to defeat the claim of the plaintiff, sold the suit land on 22.01.63 to pro forma defendants, namely, Umesh Chandra Das and Jagadish Chandra Das, pro forma defendant Nos. 5 and 6, respectively, and they got their respective mutation on 13.06.66 and two separate Pattas were issued in their names. The suit land was sold in auction on 13.06.68 and the sale was confirmed by the court in favour of the plaintiff on 24.08.68. The present pro forma defendant Nos. 5 and 6 filed two title suits, being Title Suit No. 219/68 and 220/68, for declaration of their right, title and interest and for confirmation of possession on the basis of their title deeds. The present pro forma defendant Nos. 5 and 6 filed two title suits, being Title Suit No. 219/68 and 220/68, for declaration of their right, title and interest and for confirmation of possession on the basis of their title deeds. The Title Suits were dismissed on 10.09.69. Title Appeal Nos. 116/70 and 117/70 were also dismissed by the learned Lower Appellate Court by an order passed on 09.11.71 and the said judgment was also confirmed in Second Appeal on 24.06.74. Thereafter, the suit land was delivered to the plaintiff on 15.02.75 and the execution case was disposed of finally by the Court on 01.04.75. 6. Further case of the plaintiff is that by misleading the Assistant Settlement Officer, Bajali, the pro forma defendant Nos. 5 and 6 managed to enter their names as tenants and the name of Kanak Chandra Das, defendant No. 1, was entered in Dag No. 327 and that of his father, Sonaram Das, in Dag No. 243. Armed with the entry of their names in the Khatian, they dispossessed the plaintiff from the suit land compelling the plaintiff to file Title Suit No. 106/77 against the pro forma defendant Nos. 1 and 2 as well as defendant No. 1 and Sonaram Das, for declaration of his right over the suit land and khas possession. The suit was decreed ex parte on 08.05.79 against the present pro forma defendant Nos. 5 and 6, who were arrayed in the suit as defendant Nos. 1 and 2. It is also pleaded that the plaintiff filed a petition before the Government of Assam, in the Revenue Department, under Section 59(2) of the Assam (Temporarily Settled Areas) Tenancy Act, 1971 (for short, ‘Tenancy Act’) and, by an order passed on 14.12.92, tenancy in favour of defendant No. 1 and his father, Sonaram Das, was cancelled. During the pendency of the said petition, Sonaram Das expired and the names of present defendant Nos. 2, 3 and 4 were included in his place as tenants. 7. Accordingly, the plaintiff prayed for right, title and interest over the suit land as per the decree dated 08.05.79 in Title Suit No. 106/77 and for khas possession against the defendants by evicting them from the suit land. 8. A written statement was filed by defendant Nos. 2, 3 and 4 were included in his place as tenants. 7. Accordingly, the plaintiff prayed for right, title and interest over the suit land as per the decree dated 08.05.79 in Title Suit No. 106/77 and for khas possession against the defendants by evicting them from the suit land. 8. A written statement was filed by defendant Nos. 1 to 4 taking a plea, amongst others, that the suit was barred by the principles of res judicata in view of the previous suit, being Title Suit No. 106/77, instituted by the plaintiff. The present plaintiff had instituted Title Execution Case No. 5/93 against the defendants although there was no decree against them and the learned Munsiff No. 1, Barpeta, had rejected the plaintiff’s petition vide order dated 28.09.94. It was pleaded that the defendant had obtained the Khatian on 17.01.77, from Deputy Commissioner, Barpeta, as tenant, under Jagadish Chandra Das and that they had not received any notice from the Deputy Commissioner, Barpeta, about the cancellation of their Khatian. Plea was also taken that the suit was also not triable under the Tenancy Act and any such acquisition of tenancy can be adjudicated only by the Revenue Court under Section 67 of the Tenancy Act. Khatian Case No. 1/87-88 was instituted by the defendants against their landlord, Jagadish Chandra Das, for acquisition of title under Section 23 of the Tenancy Act, which was still pending disposal. It was pleaded that the defendants had obtained Khatian No. 4 on 17.01.77 and under Section 6 of the Tenancy Act, they acquired the status of occupancy tenants having permanent, heritable and transferable right. 9. On the basis of the pleadings, the learned Trial Court framed the following issues:- “1. Whether the suit is maintainable in its present form? 2. Whether the suit is barred by law of Res-judicata? 3. Whether there is any cause of action for the suit? 4. Whether the plaintiff has right, title and interest over the suit land? 5. Whether the defendants are Khatiandar and possessing the suit land since 17-1-77? 6. Whether the plaintiff is entitled to get the decree as claimed for? 7. To what relief/reliefs, the parties are entitled.” 10. 4 (four) witnesses were examined on behalf of the plaintiffs and 2 (two) witnesses were examined on behalf of the defendants. Both sides exhibited a number of documents. 11. 6. Whether the plaintiff is entitled to get the decree as claimed for? 7. To what relief/reliefs, the parties are entitled.” 10. 4 (four) witnesses were examined on behalf of the plaintiffs and 2 (two) witnesses were examined on behalf of the defendants. Both sides exhibited a number of documents. 11. The learned Trial Court first took up Issue No. 2, relating to res judicata, and held that in view of the decision rendered in Title Suit No. 106/77, the present suit was barred by the principles of res judicata. The learned Trial Court decided Issue No. 1 against the plaintiff holding that as the Khatian, in question, was still running in the name of the defendants, there was no cause of action for filing the suit. In view of the decisions in the aforesaid issues, other issues were also accordingly decided against the plaintiff and, resultantly, the suit was dismissed. 12. The learned Lower Appellate Court, however, reversed the finding of the learned Trial Court with regard to cause of action and held that the plaintiff had cause of action for filing the suit. The decision of the learned Trial Court in the rest of the issues was affirmed and, resultantly, the appeal also came to be dismissed. 13. Ms. T. Goswami, learned counsel for the appellant has submitted that by order dated 14.12.1992, Ext.-6, the Additional Secretary, Revenue, Government of Assam, had cancelled the Khatian issued in the name of Kanak Das and Sonaram Das, in respect of the suit land and directed the Deputy Commissioner, Barpeta to make necessary correction of records within February, 1993. Learned counsel submits that with the above determination, the defendants in the suit are mere trespassers and cannot be recognized as tenants and none of the Courts below had considered the import of Ext.-6 in the correct perspective. Correction of records on the basis of the aforesaid determination is a ministerial act and the learned Courts below gave undue and uncalled for importance as their names continued to figure in the Khatian, which also goes to show, according to her, an unholy nexus of the defendants with the land record staff and, otherwise also, there could not have been any justification for not striking out their names. It is also submitted that in the earlier suit, registered as Title Suit No. 106/1977, present defendant No. 1 and Sonaram Das, who were the father of the defendants, were arrayed as defendant Nos. 3 and 4, respectively. In the said suit, the present plaintiff had prayed for declaration of right, title and interest in respect of the present suit land, on the basis of the auction purchase, and cancellation of mutation; for issuing patta in his favour; for cancellation of the Khatian issued in favour of defendant Nos. 3 and 4; for issuance of precept to the Sub-Deputy Collector of Sarupeta Revenue Circle and for ejectement of defendant Nos. 3 and 4 from the suit land. It is submitted that while the suit was decreed holding that the plaintiff has right, title and interest over the suit land, which is the same land as the present suit land, the plaintiff was not granted a decree of eviction against the defendant Nos. 3 and 4. In the said suit, defendant Nos. 3 and 4 were shown as Khatindars and that is why prayer for cancellation of Khatian was made. The present suit was filed after cancellation of the Khatian issued in favour of the said respondent Nos. 3 and 4, and therefore, present suit cannot be said to be barred by the principles of res judicata. 14. As the right, title and interest of the plaintiff was already declared, the present suit was filed for declaration of right, title and interest in terms of the judgment and decree dated 08.05.1979, in Title Suit No. 106/1977, and for ejectment of the defendants, she submits. It is strenuously argued that the issue, which has arisen for consideration in the instant case, was not an issue in the earlier suit, and therefore, the learned Courts below committed grave error of law in holding the suit to be barred by principles of res judicata. 15. I have considered the submission of Ms. Goswami and have perused the materials on record. 16. There is no dispute that the suit land in the present suit and the earlier suit, being Title Suit No. 106/1977 is one and the same. It is also an admitted position that the defendant No. 1 and the father of the defendants, namely, Sonaram Das, were parties in the earlier suit as defendant Nos. 3 and 4. 17. 16. There is no dispute that the suit land in the present suit and the earlier suit, being Title Suit No. 106/1977 is one and the same. It is also an admitted position that the defendant No. 1 and the father of the defendants, namely, Sonaram Das, were parties in the earlier suit as defendant Nos. 3 and 4. 17. A perusal of the order dated 14.12.1992, Ext.-6, goes to show that the said order was passed after giving due opportunity of hearing to the defendants in the present suit and they were also represented by their learned counsel. On consideration of the materials on record, it was held as follows:- “There is no reason to confer any right on the disputed land as tenant under Assam (TSA) Tenancy Act, 1971 to the opposite 2nd party Kanak Das and Sonaram Das (now died) or his heirs. In view of the above, the Governor of Assam is pleased to cancel the khatians issued in favour of Kanak Das and Suren Das for the disputed land in Schedule below and direct the Deputy Commissioner, Barpeta, to take necessary correction of record within February 93.” 18. As the name of Sonaram Das was recorded as ‘Suren Das’ in the 3rd line of the penultimate para of the letter dated 14.12.1992, a corrigendum was issued on 27.05.1993 to read the name as “Sonaram Das” in place of “Suren Das”. 19. The effect of the aforesaid order dated 14.12.92, Ext.6, is that the defendants could not be construed as tenants under Tenancy Act, 1971, and, if that be so, reference to Section 54 providing for procedure for ejectment of tenant, relied upon by both the Courts below, is totally misconceived. Correction of records is a ministerial act. When there is a substantive order to cancel the Khatian, mere continuance of the names in the Khatian is of no consequence and the presumption available under Section 58 of the Tenancy Act will not be attracted in such a situation. Except for a cursory reference to Ext.-6, there is no discussion whatsoever on Ext.-6 in the judgments of the courts below. 20. It appears that defendant Nos. 1 and 2 of Title Suit No. 106/1977, namely, Jagadish and Umesh were sons-in-law of Sonaram Das. The right, title and interest of the plaintiff was earlier declared in Title Suit No. 106/1977. Except for a cursory reference to Ext.-6, there is no discussion whatsoever on Ext.-6 in the judgments of the courts below. 20. It appears that defendant Nos. 1 and 2 of Title Suit No. 106/1977, namely, Jagadish and Umesh were sons-in-law of Sonaram Das. The right, title and interest of the plaintiff was earlier declared in Title Suit No. 106/1977. Apparently, no decree was passed against defendant Nos. 3 and 4 as they were Khatian holders. Subsequently, there is change in the factual matrix in the sense that the Khatian issued in favour of defendant Nos. 3 and 4 in the said Title Suit No. 106/1977 was cancelled with the result that the status of said defendants and their heirs had become that of trespassers. 21. In that view of the matter, I am of the considered opinion that the learned Courts below were wrong in holding that suit of the plaintiff was hit by res judicata. Both the substantial questions of law are answered in favour of the appellant. Consequently, the appeal stands allowed. Impugned judgments of the learned Courts below are set aside. The suit of the plaintiff is decreed in terms of the prayer. No cost. 22. Registry will send back the records.