ORDER : This second appeal has been preferred by the plaintiffs challenging the concurrent findings of the two learned courts below. Plaintiffs’ suit for declaration of right, title and interest and for preliminary decree of partition was dismissed by the learned trial court on the point of limitation and an appeal preferred there-against was dismissed by the learned first appellate court upholding the findings of the learned trial court. Aggrieved, the plaintiffs have approached this court challenging the concurrent findings of the learned courts below. 2. Two sons and a daughter of late Rajani Namasudra, as plaintiffs, instituted title suit No. 65/1992 in the court of learned Munsiff No. 1 at Silchar against legal heirs of Nayan Namasudra, Bharat Namasudra and Sonamoni Namasudra praying for a decree of declaration of their right, title and interest to the extent of 1B 6K 10Ch in the suit patta measuring 2B 13K 4Ch and also preliminary decree of partition of the suit patta followed by a final decree along with injunction etc. The case of the plaintiffs is that C.S. Patta No. 18 of Mouza Chibitabichia under Pargana Chatla in the district of Cachar was originally issued in the name of two persons, namely, Lob Chonga and Gagan Chonga. However, in the patta without there being any reason, names of Churamoni Namasudra and Nayan Namasudra were mentioned. The aforesaid patta comprised of five dags namely, dag No. 61, 62, 66, 79 and 80. The aforesaid 4 dags of C.S. Patta No. 18 were resurveyed as R.S. Patta No. 29 with only one dag, namely, dag No. 107 in the name of Rajani Namasudra, Churamoni Namasudra, Nayan Namasudra and Harmohan Namasudra. This is because Lob Chonga died in the mean time and was survived by his son Rajani Namasudra and Gagon Chonga was survived by his son Harmohan Namasudra. Name of Churamoni Namasudra appeared in the R.S. Patta No. 29 as it existed in C.S. Patta No. 18. Harmohan Namasudra being the son of Gagan Namasudra was entitled to only 1B 6K 10Ch being half of the entire patta measuring 2B 13K 4Ch but he sold 1B 15K 8Ch in favour of one Gunomoni Namasudra way back in the year 1926 which was excess than his entitlement. Gunomoni on turn sold this 1B 15K 8Ch to Nayan Namasudra and Bharat Namasudra. Gunomoni on turn sold this 1B 15K 8Ch to Nayan Namasudra and Bharat Namasudra. These two persons, namely, Nayan Namasudra and Bharat Namasudra thus became joint owner of 1B 6K 10Ch only although the sale deed executed in their favour contained recital as to 1B 15K 8Ch. The R.S. Patta No. 29 was re-surveyed during second settlement operation as second R.S. Patta No. 43 in the name of Rajani Namasudra, Nayan Namasudra, Nira Namasudrani, Nirmala Namasudrani and Abala Namasudrani. Names of Nira Namasudrani, Nirmala Namasudrani and Abala Namasudrani were mentioned in second R.S. Patta No. 43 being the legal heirs of Bharat Namasudra who along with Nayan Namasudra had inherited land from Gunomoni Namasudra being the original share of Harmohan Namasudra, the son of Gagan Namasudra. Rajani Namasudra approached the other co-pattadars for partition of the patta but they declined for which he instituted Perfect Partition Case No. 14 of 1991-92 before the Collector, Cachar District asking for a separate patta in his name with respect to his title in the patta. The Collector dropped the PP case on 30.01.1992 on the ground that the annual revenue of the patta was less than Rs. 5/-. After dismissal of the PP case, Rajani Namasudra died leaving behind the plaintiffs as his legal heirs and this is why they being the plaintiffs instituted suit for declaration of their right, title and interest to the suit patta as legal heirs of Lob Chonga. Plaintiffs claimed that Lob Chonga and Gagan Chonga jointly owned 2B 13K 4Ch of land in C.S. Patta No. 18 and each of them was owner of 1B 6K 10Ch of land in the suit Patta only. Rajani Namasudra being the sole legal heir of Lob Chonga inherited 1B 6K 10Ch and this devolved on the plaintiffs jointly. The remaining 1B 6K 10Ch owned by Gagan Chonga devolved on his son Harmohan Namasudra and so although he had purportedly sold 1B 15K 8Ch which is 8K 3. The learned trial court framed following 6 issues from the pleadings of both sides:- 4. In course of trial, plaintiff examined 2 witnesses and adduced 4 documents. Ext. 1 is the certified copy of Jamabandi of second R.S. Patta No. 43. Ext. 2 is the certified copy of Jamabandi of R.S. Patta No. 29. Ext. 3 is the certified copy of C.S. Patta No. 18 and Ext. In course of trial, plaintiff examined 2 witnesses and adduced 4 documents. Ext. 1 is the certified copy of Jamabandi of second R.S. Patta No. 43. Ext. 2 is the certified copy of Jamabandi of R.S. Patta No. 29. Ext. 3 is the certified copy of C.S. Patta No. 18 and Ext. 4 is the certified copy of order dated 30.01.1992 passed by the Collector, Cachar at Silchar rejecting PP Case No. 14/1991-92. All these exhibits were admitted into evidence without there being any objection. The defendants side also examined 2 witnesses on their part and adduced one document being Ext. A, which is registered sale deed dated 27.01.2006 and the same was under objection. Ext. A(1) is the certified copy of the same Ext. A but it was accepted into evidence without objection. 5. After perusal of the evidence on record along with pleadings of the parties and after hearing the learned counsel for both sides, the learned trial court held that the suit was not barred under the provisions of Assam Land and Revenue Regulation and accordingly issue No. 4 was decided in favour of the plaintiffs. Issues No. 3 and 5 were considered together which are in regard to bar of limitation and claim of right, title and interest of the plaintiffs in the suit dag and patta to the extent of 1B 6K 10Ch. Considering the oral evidence of PW 1 Nagendra Namasudra (plaintiff No. 2) and that of Nandalal Namasudra, an independent witness, the learned trial court held that Nayan Namasudra and Bharat Namasudra had acquired right, title and interest to the suit patta vide Ext. A. There was mutation on 21.08.1907 in favour of Nayan Namasudra, and Nayan Namasudra and Bharat Namasudra purchased 1B 15K 8Ch from Gunomoni Namasudra vide Ext. A. This purchase was done on 29.10.1926 through registered deed and Gunomoni Namasudra on turn purchased it from Harmohan Namasudra. The learned trial court held that even before purchase vide Ext. A, the predecessors of the defendants had interest on the suit patta which is revealed in Ext. 3, the C.S. Patta No. 18 but the plaintiffs did not make any endeavour to get Ext. A adjudged illegal or Ext. 3 nullified and so till these two documents remained in existence, plaintiffs are estopped of making claim of half of C.S. Patta No. 18. 3, the C.S. Patta No. 18 but the plaintiffs did not make any endeavour to get Ext. A adjudged illegal or Ext. 3 nullified and so till these two documents remained in existence, plaintiffs are estopped of making claim of half of C.S. Patta No. 18. In so doing, the learned trial court, however, has not made any observation as to whether Rajani Namasudra was not the son of Lob Chonga and/or whether Rajani Namasudra had not inherited any property whatsoever with respect to the suit land. But since Ext. A was executed in the year 1926 and Ext. 3 was of the year 1907, the learned trial court was of the view that claim of the plaintiffs or 50% of C.S. Patta No. 18 was barred by limitation and so, plaintiffs are not entitled to make a prayer for declaration of their right, title and interest or for partition of their suit property. These two issues accordingly decided against the plaintiffs and thereupon the suit was held to be not maintainable by deciding issue No. 2 in favour of the defendants and against the plaintiffs. Consequently, the entire suit was dismissed by judgment and decree dated 29.11.1995. 6. Aggrieved, the plaintiffs preferred title appeal No. 6/1996 in the court of learned Civil Judge (Sr. Divn.) No. 2, Cachar at Silchar. The learned first appellate court having heard the parties and on perusal of the materials available on record, could not find fault with the findings of the learned trial court. No point for determination was framed as required under Order XLI Rule 31 of the Code of Civil Procedure merely. Merely discussing the observations made by the learned trial court in each of the issues, the learned first appellate court failing the same line and held that suit of the plaintiffs is barred by limitation and accordingly the decree of dismissal passed by the learned trial court was upheld by first appellate judgment and decree dated 29.09.2004. These two judgments and decrees have been called in question in the present second appeal by the unsuccessful plaintiffs. 7. This court while admitting the second appeal on 08.04.2005 framed the following sole substantial question of law:- “Whether the learned courts below erred in law in holding that the suit is not maintainable under provision of Order XX Rule 18 of the Code of Civil Procedure?” 8. I have heard Ms. 7. This court while admitting the second appeal on 08.04.2005 framed the following sole substantial question of law:- “Whether the learned courts below erred in law in holding that the suit is not maintainable under provision of Order XX Rule 18 of the Code of Civil Procedure?” 8. I have heard Ms. Bijita Sarma on behalf of the appellants. Although names of three learned counsel are distinctly displayed in the cause list, no one turned up when the matter was taken up for hearing yesterday as well as today. The appeal was heard for the entire second half yesterday and the hearing resume today again but the learned counsel for the respondents remained away. Even no one came forward asking for adjournment. Under such circumstances, the appeal is taken up ex parte. I have gone through the pleadings of the parties, the depositions of the witnesses of both sides and the documents adduced by them. 9. Ms. B Sarma, learned counsel for the appellants, made the following arguments:- (i) that the plaintiffs were not aware about sale made by Harmohan Namasudra to Gunomoni Namasudra and by Gunomoni Namasudra in favour Nayan Namasudra and Bharat Namasudra in time. They later on came to know about the same and hence the delay in filing the suit. She has not argued as to whether the question of limitation would arise in a case of a partition and declaration. (ii) that the defendants having raised entitlement of Rajani Namasudra to the suit patta on the ground that he was son of widow of Lob Chonga did not lead any evidence and the learned courts below have neither arrived at the finding that Rajani Namasudra was not son of Lob Chonga nor did the learned courts below arrive at any decision to the effect that plaintiffs did not have any title whatsoever with respect to the suit land. According to her, if plaintiffs are entitled to at least some title that should have been ascertained and her entitlement for partition ought to have been considered by the learned courts below. The judgments and decrees passed by the learned courts below, therefore, are vitiated for non consideration of the relevant materials and accordingly, the same are liable to be set aside with appropriate direction to the learned courts below. 10. The judgments and decrees passed by the learned courts below, therefore, are vitiated for non consideration of the relevant materials and accordingly, the same are liable to be set aside with appropriate direction to the learned courts below. 10. As observed above in the absence of the learned counsel for the respondents for the two consecutive days, I have myself gone through the pleadings of both sides, the evidence led by them both oral and documentary and tried to find out the purported case of the defendants as made out by them so that no injustice is caused to either side. 11. It is to be noted here that the two sets of written statement submitted by the defendants in the suit nowhere stated that original C.S. Patta No. 18 which has been subsequently renumbered as R.S. Patta No. 29 and second R.S. Patta No. 43, were partitioned and the co-sharers have been enjoying their properties according to their entitlements. In the absence of such a plea from the side of the defendants and when plaintiffs have approached the court praying for right, title and interest and for a preliminary decree of partition, it cannot be presumed that the patta is not a joint patta. If the patta is a joint patta in that event, it is to be seen whether plaintiffs have got any semblance of title in the joint patta i.e. existing second R.S. Patta No. 43. It is the case of the plaintiffs that there were two owners of the patta, namely, Lob Chonga and Gagan Chonga. Lob Chonga died and Rajani Namasudra is the alleged son of Lob Chonga. Let us examine if the un-established allegation of the defendants that Rajani Namasudra is not the biological son of Lob Chonga is accepted, in that event, whether Rajani Namasudra will be entitled to any share whatsoever or not. This matter did not come up for consideration before the learned courts below and it does not appear that any argument was made to that effect at all. There could have been two ways. First, the allegation that Rajani Namasudra is not the biological son of Lob Chonga is outright rejected by saying that defendants did not lead any evidence to that effect. There could have been two ways. First, the allegation that Rajani Namasudra is not the biological son of Lob Chonga is outright rejected by saying that defendants did not lead any evidence to that effect. Secondly, it could have been said that in the event Rajani Namasudra is the son of widow of Lob Chonga through one Darparam Namasudra, in that event, whether Rajani Namasudra could claim any title of Lob Chonga. It is not clear when did Lob Chonga die. Neither the plaintiffs nor did the defendants disclosed the date of death of Lob Chonga. Supposing that Lob Chonga died after 1956 after coming into force of the Hindu Succession Act, 1956 in that event, with the death of Lob Chonga his title in the joint patta i.e. C.S. Patta No. 18 immediately devolved on his legal heirs. If Rajani Namasudra is 12. There is yet another aspect of the matter which cannot be lost sight of. The defendants stated in paragraph 24(C) of the written statement that plaintiff could claim at best an area of 4K 7Ch of land in the suit patta. This admission of the defendants in the written statement escaped the notice of both the learned courts below. Even if by admission, if plaintiffs are entitled to 4K 7Ch of land, what was the harm in passing a preliminary decree in favour of the plaintiffs on the basis of such admission? The learned courts below have considered the provisions of Order XX Rule 18 of the Code of Civil Procedure and were aware that in a decree of partition it is the duty of the court to ascertain the shares of all the parties. As such computation was not made, the learned courts below chose the option of dismissing the suit of partition by holding that it is time barred. Bar on limitation may arise in regard to validity of Ext. A or Ext. 3. But supposing Ext. A has not been challenged which was executed on 29.10.1926 but can we hold that Gunomoni Namasudra could have inherited more title than his vendor had in the suit patta. Vendor of Gunomoni Namasudra was Harmohan Namasudra who was the son of Gagan Chonga and Gagan Chonga was one of the two joint pattadars of C.S. Patta No. 18 measuring 2B 13K 4Ch. Vendor of Gunomoni Namasudra was Harmohan Namasudra who was the son of Gagan Chonga and Gagan Chonga was one of the two joint pattadars of C.S. Patta No. 18 measuring 2B 13K 4Ch. It was necessary for learned courts below, therefore, to hold as to whether Gagan Chonga owned 1B 6K 10Ch or not. If he had owned 1B 6K 10Ch and the patta was in the joint name of Lob Chonga and Gagan Chonga, in that event, Harmohan had title to the extent of 1B 6K 10Ch in the absence of any claim of adverse possession. Defendants have not raised any such issue of adverse possession in the written statement and so there is no reason to hold that Harmohan had more title than he inherited because of adverse possession. If Harmohan had title to the extent of 1B 6K 10Ch, any sale deed executed by him would be valid only with respect to such land. This is because law is settled that no one can transfer more title than he has. Even these aspects of the matter were not taken into consideration by the learned courts below. Had it been taken into consideration and view was taken then it would have been possible on the part of this court to see as to whether such view is in terms of law or not. The learned courts below, therefore, have failed to comply with the provision of Order XX Rule 18 of the Code of Civil Procedure on the basis of the materials available on record. 13. In view of what have been stated above, the sole substantial question of law is decided in the affirmative in favour of the appellants and consequently the first appellate judgment and decree is hereby set aside. The matter is remitted to the learned first appellate court who shall consider the whole matter in view of what have been stated above and shall pass a judgment afresh on the basis of the materials available on record. 14. Send down the LCRs immediately.