JUDGMENT AND ORDER : 1. Heard Mr. N. Dhar, learned counsel, appearing on behalf of the appellant/defendant and Mr. B. Sinha, learned counsel, appearing on behalf of the plaintiffs/respondents. 2. The present appellant is the defendant in Title Suit No. 165/2001 filed by the plaintiffs/ respondents for declaration of the right, title, interest and possession in their favour alongwith the relief for confirmation of possession and for permanent injunction. The original plaintiff/respondent Nos. 1 and 2 died during the pendency of this appeal and their respective legal heirs were substituted vide order dated 14.2.2013, passed in M.C. No. 1511/2008 and order dated 16.5.2011, passed in M.C. No. 1315/2011 respectively. 3. Within a very short radius, the facts leading to filing of the suit by the plaintiffs/ respondents is that the suit land described in the schedule of the plaint alongwith its adjacent land measuring 5 (five) Kathas was the jote land of late Kamal Sinha, the paternal grandfather of the plaintiffs/respondents under the mirasdar, Kunja Bihari Choudhury and on the death of said mirasdar, the said jote right was renewed by the wife of the said mirasdar by way of a Patta Patra on 15th Baishak, 1314 Bengali year in favour of the said Kamal Sinha. His son Tambi Sena Sinha inherited the jote right in the aforesaid 5 Khatas of land and the plaintiffs/respondents inherited and possessing the same by acquiring the status of the land holder. 4. After construction of the E&D bundh on the western side of the land, towards the eastern side of bundh, the plaintiffs/respondents are possessing an area of 1½ (one and half) Kathas of the land described in the schedule of the plaint. The said land is under the cultivation of the plaintiffs/respondents. The defendant/appellant without any right, title, interest and possession over the suit land is trying to dispossess the plaintiffs/respondents denying their right, title, interest and possession in respect of the suit land and as such the suit has been filed for the relief mentioned hereinabove. 5. The defendant/appellant contested the claim of the plaintiffs/respondents by filing his written statement denying the claim. It is the defence of the defendant/appellant that the land described in the schedule of the written statement, originally belonged to mirasdar Tambi Sena Sinha under whom one Nabin Namasudra was the jotedar in respect of the said land. 5. The defendant/appellant contested the claim of the plaintiffs/respondents by filing his written statement denying the claim. It is the defence of the defendant/appellant that the land described in the schedule of the written statement, originally belonged to mirasdar Tambi Sena Sinha under whom one Nabin Namasudra was the jotedar in respect of the said land. The said Nabin Namasudra possessed the said land by paying revenue to the aforesaid mirasdar and to the Government, the original land holder. The settlement record of the said land was also prepared in the name of Nabin Namasudra and on his death, his son, Aswini Namasudra inherited the same and enjoying the title thereof. The defendant/appellant purchased the said land from Aswini Namasudra vide registered deed No. 1841 dated 4.8.2000 and on delivery of possession, the defendant/appellant continued the same and enjoyed his right, title and interest thereof. On the basis of the said defence, the defendant/ appellant has prayed to dismiss the suit. 6. Upon pleadings of the parties, following issues alongwith the additional Issue No. 6 were framed:- “ISSUES 1. If there is any cause of action for the suit? 2. If the suit is bad for defect of parties? 3. Whether the suit is barred by Limitation? 4. If the plaintiffs have right, title, interest and possession over the suit land? 5. To what relief/reliefs, the plaintiffs are entitled? Additional Issue 6. Whether the suit land has been properly and correctly described in the schedule of the plaint?” 7. The parties to the suit adduced their respective evidence and relied on the following exhibits. The plaintiff side exhibited the following documents:- Ext. 1 – Order dated 18.1.1977 passed in the Eject Case No. 1 of 1976-77 between Reboti Devi, W/o Lahava Singha vs. Kula Chandra Singha and Others. Ext. 2 – Unregistered Patta Patra purportedly shown to be executed by Bilash Manjari Dashi, Wife of late Kunja Bihari Choudhury, dated 15 Baishak, 1314 Bengali year. Ext. 3 – Working Khatian showing the names of various possessors. Ext. 4 – Revenue Paying Challans dated 19th May, 1942. 8. The defendant side exhibited the following exhibits: Ext-A – Registered sale deed bearing No. 1841, dated 4.8.2000 shown to be executed by Aswini Namasudra, son of late Nabin Namasudra in favour of the defendant/appellant. Ext. Ext. 3 – Working Khatian showing the names of various possessors. Ext. 4 – Revenue Paying Challans dated 19th May, 1942. 8. The defendant side exhibited the following exhibits: Ext-A – Registered sale deed bearing No. 1841, dated 4.8.2000 shown to be executed by Aswini Namasudra, son of late Nabin Namasudra in favour of the defendant/appellant. Ext. B – The final Khatian No. 107 issued in favour of Nabin Namasudra of land covered by Dag No. 137 mentioning the issuance of the same after the right acquired by the Government under the Assam State Acquisition of Zamindari Act, 1951 under notification dated 10.3.1964. Ext. C – Trace map issued by the Revenue officials. Ext. D – Draft Patta showing number as 54 issued in favour of Nabin Namasudra pertaining to Dag No. 323 Ext. D Series – Land revenue paying challans issued by the office of the Circle Officer, Patharkandi Tahsil, Karimganj. 9. The learned trial court vide judgment and decree dated 24.4.2004, dismissed the suit mainly by deciding the additional Issue No. 6 and Issue No. 4. While deciding additional Issue No. 6 with regard to the identity of the land, the learned trial court examined the defence taken by the defendant/appellant to the effect that without disputing the Dag No. 137 of the suit land and the eastern and southern boundary of the suit land, the western and northern boundary of the suit land was not correctly described by the plaintiffs/respondents. As the plaintiffs/respondents stated that E&D bundh is situated on the western boundary but according to the defendant/appellant it is the land of Lehuba Singh. The plaintiff/ respondent No. 1 as the PW-1 had admitted in his cross-examination that a plot of land in between E&D bundh and the suit land is under occupation of the Lehuba Singh under Dag No. 136. PW-1 admitted the land of Lehuba Singh is situated on its western side of the suit land. Similarly the learned trial court considered the cross examination of the PW-1, the defence taken by the defendant/appellant that on the southern side of the suit land, there is paddy land of Sena Singha. So the learned trial court came to the finding that the suit land had not been described correctly. 10. Similarly the learned trial court considered the cross examination of the PW-1, the defence taken by the defendant/appellant that on the southern side of the suit land, there is paddy land of Sena Singha. So the learned trial court came to the finding that the suit land had not been described correctly. 10. While deciding Issue No. 4, the learned trial court on the basis of the pleading held that the plaintiffs/respondents claim over the suit land that their predecessors were the jotedar of the suit land under mirasdar Kunja Behari Choudhury. So after the enforcement of the Acquisition of Zamindari Act in the State, there must be a jote khatian under the settlement operation and the same must have been published in the name of the predecessor of the plaintiffs/respondents showing them as land holders. However, no such documentary evidence is on record to hold Kunja Bihari Choudhury was the mirasdar/or owner of the suit land prior to the enforcement of Acquisition of the Zamindari Act by the State. With respect to Ext. No. 2 it was not taken into consideration by the trial court as the same cannot be appreciated in evidence. The Ext. 3 working khatian covering the suit land under Dag No. 137 was not taken into consideration by the learned trial court as the suit land is the jote land as per the pleadings of the plaintiffs/respondents and as against the said pleading the name of Tambi Sena Singha i.e. the father of the plaintiff/respondents has been shown as mirasdar. 11. Appreciating the Ext. B, which is the final khatian of the suit Dag No. 137, the learned trial court, accepted the same as the name of Nabin Namasudra has been shown as the jote Khatiandar. Discarding the revenue paying challans, Ext. 4, the learned trial court held that the same cannot be considered being devoid of any dag number and further discarded Ext. 1 as the same does not support the title of the plaintiffs/respondents. Finally considering the admission of the PW-1 in his cross-examination that over the suit land there was a house of Nabin Namasudra about 40 years back came to the conclusion that the said evidence supports the contention of the Ext. B which has not been able to be rebutted by the plaintiffs/respondents. Therefore, the said Issue No. 4 was decided against the plaintiffs/ respondents. 12. B which has not been able to be rebutted by the plaintiffs/respondents. Therefore, the said Issue No. 4 was decided against the plaintiffs/ respondents. 12. The plaintiff/respondents thereafter preferred Title Appeal No. 46/2004 in the court of the learned Civil Judge (Sr. Division), Karimganj and the said first Appellate Court vide judgment and decree dated 6.6.2007 reversed the judgment and decree passed by the trial court. 13. The first Appellate Court framed the point for determination as follows: “Point for determination:- (1) Whether the suit land is identifiable to execute the decree if any passed in favour of the plaintiff. (2) Whether the plaintiff has possession over the suit land. (3) If so, whether the title of the suit land has been established in their favour.” 14. The learned first Appellate Court while determining the point No. 1 held as follows: “Moreover, all the PWs and DWs including defendant in their deposition very specifically deposed that they could identify the suit land. Hence, in my considered view though the western boundary was not described properly, the suit land can be easily identifiable if the plaintiffs obtained decree. So the land described in schedule of plaint with a slight modification in the western boundary as per my finding it can be easily be executed by keeping in mind the evidence on record that the suit land does not attract strip of land pertaining to Dag No. 136 between the E&D bundh on western side of the suit land.” 15. The learned first Appellant Court while deciding the point for determination Nos. 2 and 3, came to the finding that as the source of title was not proved by the defendant, the Ext. A cannot create any right, title over the suit land. On the other hand, the defendant admitted that the father of the plaintiffs was mirasdar of the land described in Ext. A and as such it was presumed that story of the plaintiffs regarding acquiring title by his father is believable. However, in the next breathe the learned first Appellate Court came to the finding that as the final khatian was prepared in the name of Nabin Namasudra as such, he agreed to the finding of the learned trial court that final khatian, is a document of possession. However, in the next breathe the learned first Appellate Court came to the finding that as the final khatian was prepared in the name of Nabin Namasudra as such, he agreed to the finding of the learned trial court that final khatian, is a document of possession. However, considering the strong evidence adduced by the plaintiffs/respondents regarding their source of title and possession of the suit land which the defendant/appellant failed in adducing convincing evidence so far the father of his vendor is concerned, in acquiring title over the land mentioned in Ext. A, hence both the point for determinations were decided in favour of the present plaintiffs/respondents. Holding so, the first Appellate Court passed a decree in favour of the plaintiffs/respondents reversing the findings of the trial court. 16. Being aggrieved by the said judgment and decree dated 6.6.2007, passed in Title Appeal No. 46/2004 by the learned Civil Judge (Sr. Division), Karimganj, the defendant/ appellant has preferred this second appeal, which was admitted on 10.3.2008 on the following substantial questions of law:- “(1) Whether the impugned judgment and decree of reversal passed by the learned lower Appellate Court and findings in deciding Issue No. 4 and thereby decreeing the suit filed by the plaintiffs/respondents ignoring the working Khatian (Exhibit 3) and final khatian (Exhibit-B) and evidence of PW-1, PW-2 and PW-3 in the nature of an admission that the boundaries of the suit land were not described correctly and there were non-joinder of necessary parties in the suit are perverse and unsustainable in law? (2) For that substantial question of law arises as to whether the impugned judgment and decree of reversal passed by the learned lower Appellate Court and findings in deciding Issue No. 6 holding that if the plaintiff obtained decree with a slight modification in the western boundary of the suit land then it can be easily executed and thereby decreeing the suit filed by the plaintiffs/respondents by travelling beyond the pleadings made in the plaint are perverse and unsustainable in law?” 17. Mr. Dhar, learned counsel, appearing on behalf of the appellant submits that the first Appellate Court while holding that there were strong evidence adduced by the plaintiffs/respondents and that too on the face of the evidence of PW-1, PW-2 and PW-3 admitting the case of the defendant/appellant is totally perverse finding. Mr. Dhar, learned counsel, appearing on behalf of the appellant submits that the first Appellate Court while holding that there were strong evidence adduced by the plaintiffs/respondents and that too on the face of the evidence of PW-1, PW-2 and PW-3 admitting the case of the defendant/appellant is totally perverse finding. The learned first Appellate Court failed to take note of Section 4 of the Assam State Acquisition of Zamindari Act, 1951 and wrongly decreed the suit in favour of the plaintiffs/respondents. It is further submitted that Ext. 3 i.e. working Khatian coupled with the final Khatian Ext. B shows that the title of the defendant/appellant originated from the Ext. B and if the Ext. 3 working khatian is considered, wherein there are names of about 9 (nine) possessors with respect to the land covered by Dag No. 137, the suit is bad for non-joinder of the necessary parties which the learned first Appellate Court failed to consider and as such the substantial question of Law No. 1 is to be decided in favour of the defendant/appellant. 18. Mr. Dhar also submits that the finding with respect to additional Issue No. 6 given by the learned first Appellate Court is totally unsustainable under the law. It is submitted that the plaintiffs/respondents until and unless amended the schedule of the suit land, no executable decree could be passed. But even then, the learned first Appellate Court even after holding that the boundary of the suit land was described incorrectly came to the finding that if the plaintiffs obtained the decree, the same could be easily executed by keeping in mind the findings on record that the suit land does not attract the land covered by Dag No. 136 between the E&D bundh and the western side of the suit land thus, another instance of perversity made by the first Appellate Court while passing the impugned judgment and decree. 19. It is also submitted that there are glaring evidence on record that the defendant/ appellant has been possessing the suit land which had been deposed by none other than the witnesses of the plaintiffs/respondents’ side. Submitting such, Mr. Dhar finally submits that the substantial question of law No. 2 is to be decided in favour of the defendant/ appellant. 20. Per contra, Mr. Submitting such, Mr. Dhar finally submits that the substantial question of law No. 2 is to be decided in favour of the defendant/ appellant. 20. Per contra, Mr. Sinha submits that the substantial questions of law so formulated are not relevant to decide the present appeal inasmuch as it is a fact that the plaintiffs/ respondents are able to prove their case including their title over the suit land on the basis of the Ext. Nos. 1 to 4. Mr. Sinha submits that Ext. No. 1 shows that the plaintiffs/ respondents were possessing the land covered by Dag No. 137 of Khatian No. 107 which is the suit land wherein vide order dated 18.1.1977, it was held that the first Party Reboti Devi had no tenancy right over the suit land under Mahal No. 24135/84 of erstwhile permanent settlement area. It is also submitted that vide Ext. No. 2, the Patta Patra, the grandfather of the respondent held the possession and as a result the working Khatian Ext. 3 was granted showing the name of Tambi Sena Sinha, the father of the plaintiffs/respondents as one of the possessors of the suit land. On the other hand, the defendant/appellant failed to show any such piece of evidence supporting his claim that Nabin Namasudra had the title to possess the suit land as claimed by the defendant/appellant. Thus, Mr. Sinha submits that the appeal is liable to be dismissed. 21. Both the substantial questions of law are discussed jointly. The findings of the learned trial court with respect to Issue No. 4 that if the predecessor-in-interest of the plaintiffs/respondents were jotedar in respect of the suit land under the mirasdar, Kunja Bihari Choudhury, a jote Khatian during the first settlement operation ought to have been published in the name of the predecessors of the plaintiffs/respondents showing them as land holders is a correct finding. Section 4 sub-section (6) of the Assam State Acquisition of the Zamindari Act, 1951 stipulates that every Rayat or non-agricultural tenant holding land or any estate which is vested in the State shall hold the same directly under the State on same terms and conditions as immediately before the date of vesting and all rents etc and other dues accruing in respect of the land comprised in such vested or tenure on the date of vesting shall be payable to the State Government. The said Section 4 sub-section (6) provides that the State Government shall be entitled to apply the Assam Land and Revenue Regulation 1886 in any area, if the tenants residing in it and apply any right to exchange their right under the Goalpara Tenancy Act, 1929 or the Sylhet Tenancy Act, 1936 for granting right under the Assam Land Revenue Regulation Act, 1886. 22. The case of the plaintiffs/respondents as apparent from the plaint itself is that after the death of Kamal Singha, who was a jote tenant under one Kunja Bihari Choudhury (mirasdar), his son Tambi Sena Singh, the predecessor-in-interest of the plaintiffs/ respondents became the jotedar of the land including the suit land. So it is the duty on the part of the plaintiffs/respondents to show that the plaintiffs/respondents or their late father was endowed with the status within the ambit and scope of the Assam State Acquisition of Zamindari Act, 1951. But no such piece of evidence is on record in order to hold the title of the plaintiffs/respondents as per the pleading over the suit land. 23. On the other hand, it is the case of the defendant/appellant that Tambi Sena Singh was the mirasdar and late Nabin Namasudra was the jotedar under the mirasdar with respect to the suit land alongwith other land. The said Nabin Namasudra became the owner of the aforesaid land enjoying the status/right as land holder. The said land was under Khatian No. 107, which was possessed by Nabin Namasudara and Ext. B, Khatian No. 107 was issued by striking out the name of Tambi Sena Singha and said Nabin Namasudra as apparent from Ext-B was possessing the land covered by Dag No. 137. Ext. D series shows the payment of land revenue and the Ext. D supports the fact of issuance of Patta in the name of Nabin Nomasudra as per the provision of Section 4, sub-section (6) of the Assam State Acquisition of Zamindari Act, 1951. 24. In addition to that, PW-1 Kula Chandra Sinha (deceased respondent No. 1) in his cross-examination deposed that over the suit land, the house of Nabin Namasudra existed about 40 years back. It is admitted by the said PW-1 that the final Khatian of the suit land was issued in the name of Nabin Namasudra. 24. In addition to that, PW-1 Kula Chandra Sinha (deceased respondent No. 1) in his cross-examination deposed that over the suit land, the house of Nabin Namasudra existed about 40 years back. It is admitted by the said PW-1 that the final Khatian of the suit land was issued in the name of Nabin Namasudra. PW-3 Horidas Sinha specifically deposed in his cross-examination that Rameswar Singha, the present defendant/appellant is possessing the suit land. On the other hand, the evidence adduced by the defendant/appellant remains unshattered. The defendant/appellant as the DW-1, specifically deposed that Aswini Namasudra had the homestead over the suit land which he had purchased and the same is classified as homestead land. It is also admitted that on the western boundary of the suit land, the name of Tambi Sena Sinha has been stated in the Ext. A and he is not aware with regard to dag number of the land of the plaintiffs/respondents. He also denied the fact that Ext. A sale deed is a forged one. 25. Under such overwhelming evidence in support of appellant/defendant, the finding of the first Appellate Court that the plaintiffs/respondents have strong evidence is totally perverse finding and as such the substantial question of law No. 1 is decided in favour of the defendant /appellant. 26. With regard to finding of the first Appellate Court, additional Issue No. 6, the same is not wrong finding in as much as both the parties to the suit are claiming the land covered by Dag No. 137 though the same has subsequently been changed after issuance of Patta in favour of the defendant/appellant. The finding of the first Appellate Court that leaving aside the land covered by Dag No. 136, the decree if any, passed in favour of the plaintiffs/respondents would be an executable one. 27. Order VII Rule 3 of the CPC stipulates that when the subject matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it and in case such property can be identified by the boundary or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers. Order VII Rule 3 of the CPC stipulates that when the subject matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it and in case such property can be identified by the boundary or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers. Herein the present case, there is no dispute with regard to Dag No. 137 and as referred herein above, both the parties are aware with respect to dag number of the suit land and as such the substantial question of law No. 2 is decided against the defendant/appellant. 28. Accordingly, this second appeal is allowed by setting aside the judgment and decree dated 6.6.2007, passed by the learned Civil Judge (Sr. Division), Karimganj in Title Appeal No. 46/2004 without interfering with regard to the finding on the point of determination No. 1. The suit of the plaintiffs/respondents is accordingly dismissed. A decree be drawn up accordingly. No costs. 29. Send back the LCR.