JUDGMENT AND ORDER : Heard Ms. S. Deb (Gupta), learned counsel appearing for the appellant as well as Mr. S.M. Chakraborty, learned senior counsel, assisted by Ms. P. Sen, learned counsel appearing for the respondents. 2. This is an appeal under Section 100 of the CPC from the judgment dated 15.01.2013 passed by the Addl. District Judge, Court No.4, West Tripura, Agartala, in Title Appeal No.54 of 2011. 3. The predecessor of respondents No.1(a) to 1(e) instituted the suit being Title Suit No.21 of 2009 seeking declaration that the judgment and decree dated 23.07.1992 passed by the Addl. Munsiff, Agartala, West Tripura in Title Suit No.175 of 1987 as void and not binding on the plaintiff. The plaintiff alleged of fraud as the plaintiff was not made party in the said suit. According to the plaintiff, by the sale deed bearing No.17637 dated 08.09.1972, he purchased more or less 0.40 acre of land from one Bideshi Gar with definite boundary. The suit land has been stated to be part of that purchased land. The suit land has been more particularly described in the schedule of the plaint and it appears from the schedule that the suit land is comprised in three cadastrally surveyed plots No. 26108, 26109 and 26119 of khatian No. 34163. To avoid any confusion, it is to be stated that the entire land that the plaintiff purchased by the sale deed, is not part of the suit land. The Suit land as mentioned above is measuring 0.09 acres out of the said plots. The suit land is situated in the mouja Badharghat, sheet No.5. 4. There is no dispute that by the said judgment and decree dated 23.07.1992 the Addl. Munsiff declared that the defendant is the owner in possession of those plots. On the basis of the said judgment and decree, khatian No. 34163(Exbt.8) was opened showing the defendant appellant as the holder of the title of those plots and against those plots the plaintiff was shown as the permissive possessor of the defendant. 5. During the proceeding of the suit, the original plaintiff died and he was substituted by his legal heirs. The respondents are the legal heirs of the plaintiff as represented by Mr. S.M. Chakraborty, learned senior counsel. 6. 5. During the proceeding of the suit, the original plaintiff died and he was substituted by his legal heirs. The respondents are the legal heirs of the plaintiff as represented by Mr. S.M. Chakraborty, learned senior counsel. 6. After recording the evidence, the Civil Judge, Junior Division, Bishalgarh, West Tripura decided the suit being Title Suit No.186 of 2006(at Agartala) and renumbered as Title Suit No. 21 of 2009 (at Bishalgarh) by the judgment dated 26.08.2011 whereby the suit has been dismissed. In the said judgment it has been observed in para 9.4 as under: “9.4 The plaintiff has not been able to show that he had any connection with the suit land in TS 175/1987 to be made either a necessary party or a proper party in that suit. Since the suit land in both the suits are distinct and different and originally belonged to two different persons, so I find force in the submission of Ld. Counsel of the defendant that it was not necessary for the defendant of the instant suit who filed TS 175/1987 to make the plaintiff herein a party in that suit.” 7. In the judgment it has been further observed that— “9.5 But since it is already clear that the suit land in both the suits are originated from different jote numbers belonging to different persons, in my considered opinion the judgment and decree passed in TS 175/1987 though was in the form of declaration but not binding upon the plaintiff of this case. 9.6 However, the plaintiff has not been able to prove anything to show that the judgment and decree in TS 175/1987 was obtained by the defendant herein by practicing any illegality, fraud etc. Hence, in my considered opinion the judgment and decree passed in TS 175/1987 can not be declared as void.” It has been observed that— “10.19 It is to be noted that the record of right has been created in the name of defendant showing her to be the owner of land occupied in CS plot No. 26107, 26108 and 26119 of khatian No.34163 after the decree was passed in his favour (in the instant suit as I see “her”). In the instant suit we are not concerned about whether the land purchased by defendant comprised in Jote No. 1843 had been nexus with those plot numbers of khatian No. 34163 because that burden is presumed to have been discharged by defendant in her suit No. TS 175/1987 and as a result of the decree in that suit in favour of the defendant herein it is now settled position.” [emphasis added] 8. Being aggrieved by the said finding and observation made in the judgment by the trial Court, the respondents herein filed an appeal before the Court of the District Judge, West Tripura, Agartala under Section 96 of the CPC against the said judgment dated 26.08.2011. 9. While deciding the said appeal being Title Appeal No. 54 of 2011 by the judgment dated 15.01.2013 the appellate Court reversed the finding of the trial Court on the point of limitation as the trial Court dismissed the suit as well on the ground of maintainability. An additional issue was framed for that purpose. The additional issue that was framed reads as under: “Whether the suit is maintainable in its present form and nature”. 10. It is to be noted that while deciding the additional issue relating to the maintainability, the trial Court had observed that the suit was filed under Section 11(3) of the TLR & LR Act and the suit was not filed within the period of limitation of six months from the order that was passed by the District Collector on 19.11.2005. Hence, it was held that the suit has not been filed within the period of limitation as prescribed. Having cumulatively considered the finding on the other issues, the suit was dismissed. 11. The first appellate Court has reversed that finding holding that the point of limitation was wrongly decided by the trial Court. Hence, it was held that the suit has not been filed within the period of limitation as prescribed. Having cumulatively considered the finding on the other issues, the suit was dismissed. 11. The first appellate Court has reversed that finding holding that the point of limitation was wrongly decided by the trial Court. It has been further held by the appellate Court as under: “…….In appreciation of the evidence of the parties, particularly, from the admission of the defendant respondent no.1 made in cross-examination, that the plaintiff appellant is not in a possession of any part of the land of which the defendant respondent no.1 is the rightful owner and that their lands are separated by way of posting boundary pillars and that the house of the plaintiff appellant is situated to the southern side of the house of the defendant respondent no.1 and that in the registered sale deed it was also mentioned that the plaintiff appellant resides in the south of her house etc. make it clear that both the plaintiff appellant and the defendant respondent no.1 are possessing their respective lands without any type of dispute and the plaintiff appellant is not in possession of any part of the land of which the defendant respondent no.1 is rightful owner. So, from the admission of the defendant respondent no.1 it can safely be concluded that the permissive possession of the plaintiff appellant shown in 3(three) numbers of plots i.e. 26107, 26108 and 26119 i.e. the suit land described in the plaint in khatian no. 34163 created in the name of the defendant respondent no.1 are actually the jote land of plaintiff appellant and has been possessing the same without any dispute from the side of the defendant respondent no.1 as admitted by her. So, the right, title, interest and possession of the plaintiff appellant are clearly found over the suit land.” [emphasis added] 12. Fundamentally, being aggrieved by that finding, this appeal has been filed and at the time of admission the following substantial question was formulated: “Whether the first appellate Court has misread the documents namely, Exbt.D/1, Exbt.D/2 and Exbt.D/3 for returning the finding that the land of defendants covered by those Exbt.D/1, Exbt.D/2 and Exbt.D/3 are the suit land. Fundamentally, being aggrieved by that finding, this appeal has been filed and at the time of admission the following substantial question was formulated: “Whether the first appellate Court has misread the documents namely, Exbt.D/1, Exbt.D/2 and Exbt.D/3 for returning the finding that the land of defendants covered by those Exbt.D/1, Exbt.D/2 and Exbt.D/3 are the suit land. In other words, whether the first appellate Court committed illegality holding that the land covered by the Exbt.D/1, Exbt.D/2 and Exbt.D/3 do not pertain to the C.S. Plot No.26107, 26108 and 26119 of Khatian No. 34163?” 13. Having heard Ms. S. Deb(Gupta), learned counsel appearing for the petitioner and Mr. S.M. Chakraborty, learned senior counsel appearing for the respondents, this Court is of the opinion that both the trial Court and the first appellate Court have committed serious illegality for the reasons that (i) the title has been presumed by the trial Court on the basis of the judgment delivered in Title Suit No.175 of 1987 and the relevant part has been reproduced above, whereas, (ii) the first appellate Court has observed that both the plaintiff appellant and the respondent No.1 are possessing their respective lands without any dispute and the plaintiff appellant is not in possession of any part of the land of which the defendant respondent No.1 is the rightful owner. So, from the admission of the defendant respondent No.1 it can safely be concluded that the permissive possession of the plaintiff appellant recorded against the plots i.e. 26108, 26109 and 26119 [a part whereof is the suit land] pertaining to khatian No. 34163 created in the name of the plaintiff appellant are actually the jote land of the plaintiff appellant. 14. A title cannot be declared firstly, based on the record of right, and on a statement made by one of the witnesses, even if she had the claim and right over those lands by virtue of the judgment of the earlier suit. So far the proof of title of a land is concerned it has to be established either by the title deed or any other instrument of equivalent value. Thus, this finding is not supported by reasoning derived from the record of evidence. 15. Having observed thus, the impugned judgment dated 15.01.2013 is quashed and set aside. So far the proof of title of a land is concerned it has to be established either by the title deed or any other instrument of equivalent value. Thus, this finding is not supported by reasoning derived from the record of evidence. 15. Having observed thus, the impugned judgment dated 15.01.2013 is quashed and set aside. As it has been observed that even the trial Court has committed the serious illegality by presuming the title on the basis of the earlier judgment and as the suit was instituted for declaring the said judgment void, inasmuch as the claim of the plaintiff in respect of the suit land his title is rooted in the title deed executed by one Bideshi Gar the judgment dated 26.08.2011 is set aside and quashed. 16. This Court finds it apposite to remand the suit to the trial Court for commencement of adjudication from the stage of the framing of issues. Alongwith the issues as framed, the additional issue No.2 which is framed below shall also be decided by the trial Court. “Whether the CS Plots No. 26108, 26109 and 26119 recorded in the Khatian No.34163 of Mouja Badharghat Sheet No.5 are covered by the registered sale deed bearing No.17637 dated 08.09.1972?” 17. Unless those plots are covered by the sale deed, the plaintiff will have no title over the suit land. On formally recording that issue, the parties be given the fresh opportunity to lead evidence only on that issue, but not on the other issues. As an additional aid to identify the suit land vis-à-vis the said sale deed dated 08.09.1972 a Survey Commissioner may be appointed by the trial Court. 18. In the event if the appointment of a Survey Commissioner appeared essential, the Director of Land Records and Settlement be requested to engage one expert survey knowing person to work as the Survey Commissioner for the Court while all the expenses for that purpose including the cost of conveyance shall be borne by the plaintiff. The estimate be made before hand so that there is no standoff over that aspect. The necessary writ in terms of Order XXVI of the CPC be issued by the Court only after recording the evidence. 19. With this observation and direction this appeal stands allowed to the extent as indicated above. 20. Draw the decree accordingly. Send down the records as expeditiously as possible.