JUDGMENT AND ORDER : Heard Mr. N Dhar, the learned counsel appearing on behalf of the appellant. On perusal of the order dated 23.11.2016 of the Lawazima Court it is found that service on the respondent No.1 considered to be deemed served. However, none has entered appearance at the time of taking up this matter for hearing and its final disposal. It is pertinent to mention here that Mr. Sunil Chakraborty is the sole respondent in this appeal. 2. The present appellants are the defendants in Title Suit No.09/1995 in the court of Civil Judge, (Senior Division) at Hailakandi. The present respondent as the plaintiff filed the suit against the present defendants/appellants. The brief facts of the plaintiff/respondent is that he was the resident of undivided Bengal and shifted to Cachar district in Assam. At the time of partition, he was a freedom fighter and was subjected to lot of sufferings by the British Government. After coming to the district of Cachar, he obtained allotment and possession over 30B’s of suit land from the Government at the Mohanpur Requisition Area. Since 1955 onwards he reclaimed the land and made it habitable and cultivable and started to cultivate the land after constructing temporary house on the part of the land. Owing to serious eye disease, he was unable to get the land cultivated under his own supervision following which he engaged agricultural labourers. In 13.74BS, the defendants/appellants were engaged for cultivation for one year but the defendants/appellants with an ulterior motive did not vacate the land after one year and had continued to possess the land illegally against various demands being made by the plaintiff/respondent for vacating the possession of the land. The said defendants/appellants also constructed their own house upon a hillock within the suit land. The plaintiff/respondent approached the then SDO i.e. Collector, Hailakandi for eviction of the defendants. The prayer was rejected against which the plaintiff preferred an appeal before the Additional Deputy Commissioner, Cachar. The Additional Deputy Commissioner directed the SDO, Hailakandi to evict the defendants. The defendants/appellants moved the Assam Board of Revenue and the said Hon’ble Board in its judgment observed that the land would become khas only after the settlement in favour of the plaintiff/respondent is cancelled and till then the land belonged to the plaintiff/respondent, who can take action against the defendants/appellants in appropriate Court of law. The defendants/appellants moved the Assam Board of Revenue and the said Hon’ble Board in its judgment observed that the land would become khas only after the settlement in favour of the plaintiff/respondent is cancelled and till then the land belonged to the plaintiff/respondent, who can take action against the defendants/appellants in appropriate Court of law. On the basis of such finding, the plaintiff/respondent served notice upon the defendants/respondents requiring vacating the suit land. The defendant/respondent No.2(original) received the notice while the defendant No.1(original) refused to accept the notice. As the defendants/respondents did not vacate the suit land, the plaintiff filed the present suit for the following reliefs: “That the plaintiff, therefore prays: (ka) That the plaintiff be awarded khas possession of the land described in the Schedule below upon a declaration that it is under the plaintiff’s title and possession through an allotment from the Government and upon eviction of defendant Nos. 1 and 2 and their hencemen there from by removal along with their belongings the houses built by them in the hillock part of the suit land; (kha) That the plaintiff be awarded any other or further relief to which he may be entitled in the opinion of the Court: (Ga) That the plaintiff awarded mesneprofit for the past and the future period on account of the suit land: and (Gha) that the plaintiff be awarded the cost of the suit under all circumstances with future interest thereon.” 3. The defendants/appellants filed a joint written statement wherein they stated that they were in possession of the suit land since long along with their brothers. They further claimed that the allotment of the plot of land in the name of the plaintiff/respondent was cancelled by the SDO in Requisition Case No.196/1965 and thereafter the land was allotted to the defendants/appellants on 30.01.1971. The defendants/appellants further took the plea that without getting the order of allotment dated 30.01.1971 in favour of defendants/appellants being set aside the plaintiff/respondent did not acquire any right to file the instant suit. So they prayed for disposal of the suit. On the basis of the pleadings following issues were framed: “1. Is there is any causes of action? 2. Is the suit maintainable? 3. Is the suit barred by limitation? 4. Whether the Civil Court has jurisdiction to try the suit? 5. So they prayed for disposal of the suit. On the basis of the pleadings following issues were framed: “1. Is there is any causes of action? 2. Is the suit maintainable? 3. Is the suit barred by limitation? 4. Whether the Civil Court has jurisdiction to try the suit? 5. Is the State of Assam a necessary party and is the suit bad for non-joinder of parties? 6. Is the suit properly valued and stamped? 7. Has the allotment of the plaintiff cancelled and has the plaintiff any locus standi to file the suit? 8. Whether the plaintiff has any right, title or interest over the suit land? 9. Whether the defendants were given settlement of suit land? 10. Is the plaintiff entitled to file this suit without a prayer for setting aside the order in requisition case No.196/65? 11. To what relief, if any plaintiff is entitled?” After the framing of the said issues, the additional issue was framed by the trial court which is reproduced below: “Whether the suit is legally maintainable in presence of irrebutable and operative order of settlement granted by SDO., in favour of the defendants on 30.01.71 in Misc. Case No.196/65 relating to Misc. Case No.11/67-68.” 4. The parties to the suit adduced their evidence by relying various documents as exhibits. The learned trial court while deciding issue No.2 held that the plaintiff/respondent is the settlement holder in respect of the suit land and the suit is maintainable. The court below also held that the State of Assam is not a necessary party to the suit while deciding issue No.5. Learned trial court took both the issue Nos. 7 and 8 jointly and decided the same in favour of the plaintiff/respondent. While deciding the said two issues, the learned trial court took into consideration the exhibit-3 which purportedly is a circular dated 19.01.1951 showing that the said circular for allotment of land to those political sufferer who wants to cultivate the land and who had no sufficient land. The said exhibit-3 does not reflect the name of the respondents/plaintiff from which it can be inferred that land was allotted to the plaintiffs/respondents. The said exhibit-3 does not reflect the name of the respondents/plaintiff from which it can be inferred that land was allotted to the plaintiffs/respondents. The trial court on the basis of the said exhibit-3 taking into consideration the exhibit-9, series (the compensation amount paid by the plaintiff/respondent for requisition of the land) and in addition to that, taking into consideration exhibit-10, series (the revenue paying receipts) and exhibit-11, a notice issued from the office of the SDO, Hailakandi for payment of requisition arrear came to the conclusion that the suit land was allotted to the plaintiff/respondent. However, no such allotment letter allotting the suit land to the plaintiff/respondent could be proved by the plaintiff/respondent. Further, the trial court took into consideration exhibit-12 wherein the names of the defendants/appellants were struck out as no formal settlement order was granted to them thereby bringing the name of the plaintiff/respondent in the said copy of zamabandi back into its existence which was struck out by the SDO. So, taking into consideration such exhibits, the learned trial court affirmed that the plaintiff/respondents is the allottee in respect of the suit land and the defendant/appellants were the tenants under him. While holding such, the trial court came to the finding that the defendants/appellants failed to produce any such allotment letter in their name discarding the findings in exhibit-A which is the judgment dated 13.08.1970 passed by the Assam Board of Revenue in Case No. 79 RA/69 in favour of the plaintiff/respondent. Further, relying the evidence of the plaintiff’s witnesses namely, Monoranjan Bhattacharjy and Sonatan Roy Choudhury, the learned trial court came to the finding that the plaintiff/respondent had been possessing the suit land on the basis of the said exhibits. The trial court held that the plaintiff/respondent has got full legal authority to file the suit for ejectment of the trespassers as he has got the right, title and interest over the suit land. The learned trial court thereafter decided Issue No.11 in favour of the plaintiff/respondent and held that the plaintiff/respondent is entitled for the decree of recovery of khas possession by evicting the defendants/appellants. Being aggrieved by the judgment and decree dated respectively, 17.01.1998 and 27.01.1998 passed in Title Suit No.99/1990, the defendants/appellants preferred the Title Appeal No.2/1998. The learned trial court thereafter decided Issue No.11 in favour of the plaintiff/respondent and held that the plaintiff/respondent is entitled for the decree of recovery of khas possession by evicting the defendants/appellants. Being aggrieved by the judgment and decree dated respectively, 17.01.1998 and 27.01.1998 passed in Title Suit No.99/1990, the defendants/appellants preferred the Title Appeal No.2/1998. The said appeal was dismissed upholding the judgment and decree of the trial court with the modification that the plaintiff/respondent acquired the right to be in possession over the suit land and to continue as such till patta is issued by the Revenue Authority. While disposing of the said appeal, the First Appellate court also decreed that the plaintiff/respondent is entitled to the extent of decree for declaration that the plaintiff/respondents had acquired right to be in possession and to continue as such till patta is issued by the Revenue Authority in view of the allotment order issued by the Revenue Authority in his favour and also affirmed the decree for eviction of the defendants/respondents and for delivery of khas possession in favour of the plaintiff/respondent. The learned First Appellate Court upheld the discussions made by the trial court and also came to the finding that considering exhibit-12 (certified copy of zamabandi) it appears that the correction made on 26.03.1973 in view of the order passed by the SDO, Hailakandi on 30.01.1971 was cancelled as formal settlement order was not granted in favour of the defendants/appellants and their names were subsequently deleted vide order dated 02.04.1973 and as such it appeared that the name of Sunil Chakraborty (plaintiff/respondent) in the zamabandi in respect of the entire plot of land who remains an allotee in respect of the entire plot of land. The courts below also considered exhibit-4, an agreement between the plaintiff/respondent and the defendants/appellants and held that the defendants/appellants were permissive occupier in respect of the suit land only for an year i.e. 13.72 BS and on the basis of the said exhibit-4, the First Appellate court held that the defendants/appellants had become evictable tenant after one year. 5. The defendants/appellants, thereafter, preferred the present second appeal challenging the judgment and decree passed by the First Appellate Court. This second appeal was admitted on 21.08.2006 on the following substantial question of law: “1. 5. The defendants/appellants, thereafter, preferred the present second appeal challenging the judgment and decree passed by the First Appellate Court. This second appeal was admitted on 21.08.2006 on the following substantial question of law: “1. Whether the findings of the learned lower appellate court that the Plaintiff being an allottee had acquired the right to be in possession until and unless regular Patta is issued by the revenue authority are perverse inasmuch as the plaintiff was not in possession of the suit land and the suit filed by the plaintiff was for recovery of possession on suit land. 2. Whether the findings of the learned lower appellate court that the plaintiff being an allottee had acquired the right to be in possession in respect of the suit land without any document in the case record to show that the plaintiff was allottee with the suit land in accordance with the Settlement Rules framed/issued under the Assam Land and Revenue Regulation, 1886 or Rule 5 of the Assam Land (Regulation and Acquisition) Rules, 1950 framed under the Assam Land (Requisition and Acquisition) Act, 1964, are perverse”. 6. Mr. Dhar pointing out to the findings of the courts below submits that both the courts below had come to the finding that the plaintiff/respondent is allottee with respect to the suit land. But the plaintiff/respondent failed to produce any allotment letter not to speak of any settlement order and/or any regular patta. It is an admitted fact that the defendants/appellants are in possession of the suit land. Their names were mutated in the zamabandi as the plaintiff/respondent failed to pay the requisition charges. The suit land was requisitioned purportedly from Mohanpur Tea Estate in order to allot the same to the plaintiff/respondent. In such a situation, the question of allotment or requisition for and on behalf of the plaintiff/respondent ought to have shown by a specific order. Merely on the basis of exhibit-3 which is a circular, the courts below cannot held that the plaintiff/respondent is allottee of the suit land. It is also submitted that the First Appellate Court held that the defendants/appellants were permissive occupier on the basis of exhibit-4. If that is also considered, the defendants/appellants cannot be evicted without going through due process of law under the Tenancy Act. It is also submitted that the First Appellate Court held that the defendants/appellants were permissive occupier on the basis of exhibit-4. If that is also considered, the defendants/appellants cannot be evicted without going through due process of law under the Tenancy Act. It is further submitted that even if it is presumed that the land was requisitioned then also it is the burden on the plaintiff/respondent to show that subsequently land was settled with the plaintiff/respondent. 7. The suit is admittedly for recovery of possession. Regulation 32 of the Assam Land Revenue Regulation (ALRR) 1886 stipulates that the settlement Officer shall offer the settlement to such persons as he finds to be in possession of the land and to have a permanent heritable and transferable right to use and occupy the same. In the present case, admittedly there is no possession so far the plaintiff/respondent is concerned over the suit land. Under such circumstances, finding of the First Appellate Court that the plaintiff/respondent acquired the right to be in possession and to continue till patta is issued by the Revenue Authority cannot be held to be lawful. It is in clear violation of the Regulation 32 of the ALRR 1886. Closing his submission, Mr. Dhar submits that the findings of the courts below are perverse and as such substantial question of law are to be decided in favour of the defendant/appellant. 8. Considered the submission made by the learned counsel for the appellants. It is true that the plaintiff/respondent has filed the suit for declaration that the suit land is under the plaintiff’s title and possession through an allotment from the Government and for recovery of possession. From the relief itself it is apparent that the plaintiff/respondent has taken the burden to prove the allotment of the suit land from the Government. On perusal of the exhibits and the evidence of the parties to the suit, it is clear and apparent that the plaintiff/respondent had failed to discharge the prime burden on him to adduce any cogent evidence in support of his claim that he was allotted the suit land by the Government. On perusal of the exhibits and the evidence of the parties to the suit, it is clear and apparent that the plaintiff/respondent had failed to discharge the prime burden on him to adduce any cogent evidence in support of his claim that he was allotted the suit land by the Government. Exhibite-3, as hereinabove mentioned is a mere circular wherein it has been reflected that on the basis of the order of the Chief Minister of Assam and on the petition dated 19.01.1951 of the plaintiff/respondent and another, the same was forwarded to the SDO to take necessary action. As the order of the Chief Minister, Assam cannot be treated to be an allotment letter in the name of the plaintiff/respondent until and unless the SDO issued specific allotment letter by specifying the suit land and there after possession was delivered to the plaintiff/respondent. Exhibit-4 is an agreement between the plaintiff/respondent and one of the defendants/appellants. The contents show that it is an agreement that one of the defendants/respondents has been inducted to cultivate over 30 B’s of land. But there is no mention of the allotment No. 236 in the said agreement in order to come to a definite conclusion that the said exhibit-4 was executed purportedly in respect of the suit land. Exibit-5 is the judgment passed by the Hon’ble Assam Board of Revenue wherein a liberty was granted to the plaintiff/respondent to take action against the defendants/appellants in an appropriate court. This indicates that there is a dispute between the parties to the suit and the plaintiff/respondent was given the liberty to move to the appropriate forum to resolve the said dispute with regard to possession. Exhibit-9 series are the requisition and acquisition fees paid by the plaintiff/respondent. Exhibit-12 is the zamabandi of allotment No.236. The findings of the trial court whereby the right, title and interest of the plaintiff/respondent was declared as the settlement holder was rightly set aside by the First Appellate Court. Exhibit-9 series are the requisition and acquisition fees paid by the plaintiff/respondent. Exhibit-12 is the zamabandi of allotment No.236. The findings of the trial court whereby the right, title and interest of the plaintiff/respondent was declared as the settlement holder was rightly set aside by the First Appellate Court. But the finding of the First Appellate Court that the plaintiff/respondent acquired the right to be in possession and to continue as such till patta is issued by the Revenue Authority itself is a finding the declaration of which contravenes Regulation 154(1)(a) of the Assam Land Revenue Regulation, 1886 inasmuch as the First Appellate Court had given a declaration that the plaintiff/respondent is entitled for being settled with suit land and the patta should be issued to him and till then he is allowed to remain in possession on the face of the relief sought for by the plaintiff/respondent for recovery of possession of the suit land from the defendants/appellants. Regulation 32 of the Assam Land Revenue Regulation itself stipulates that settlement can be issued to a person who is having possession over the land along with other rights and the same is to be settled with the person who is possessing the same. The findings in favour of the plaintiff/respondent cannot be arrived on the weakness of the defendants/appellants. The plaintiff/appellant is to prove his own case on the basis of which he claims the relief which in the present case is missing. It is true that the plaintiff/respondent has submitted various documents in the form of exhibits from which it cannot at all be arrived whether the suit land was de-requisitioned and the same was acquired by the Government as the khas land in order to allot the same to the plaintiff/respondent. Admittedly the said land belongs to Mohanpur Tea Estate and the land was requisitioned as per the version of the plaint. In such situation, the Government ought to have been a necessary party to the suit and in the absence of the Government the findings given by the courts below cannot be considered to be proper and final. 9. Accordingly, in conclusion, this Court decides that the substantial question of law Nos. 1 and 2 are found to be perverse. More so, the suit is bad for non-joinder of the Government of Assam as the necessary party to the suit. 10. Accordingly, this second appeal succeeds. 11. 9. Accordingly, in conclusion, this Court decides that the substantial question of law Nos. 1 and 2 are found to be perverse. More so, the suit is bad for non-joinder of the Government of Assam as the necessary party to the suit. 10. Accordingly, this second appeal succeeds. 11. Send back the LCR. 12. The judgment passed by both the courts below are set aside.