The court emphasized the importance of considering the question from the correct perspective and directed the matter to be reconsidered on merit.

JUDGMENT :

S.B. Sinha, J.

The plaintiffs are before us questioning the correctness or otherwise of the judgment and order dated 21.8.1998 passed by a learned Single Judge of the High Court of Assam, whereby and whereunder the second appeal preferred by the appellant against a judgment and order dated 23.5.1988 passed by the Assistant District Judge, Barpeta, in Title Appeal No. 46/1986, was dismissed. The basic fact of the matter is not in dispute.

2. The lands in suit and other lands belong to one Durga Malakar. He is the paternal uncle of the plaintiffs' father Nareswar Malakar. The exact date of death of Durga Malakar is not known. He left behind his widow, namely, Gandhari. The dispute between the parties revolves on the execution of a will by Durga Malakar in favour of the plaintiffs on 8.10.1958 and execution of a purported Deed of Gift dated 5.5.1958, which was in the name of his wife Gandhari.

3. Before we advert to the questions raised before us we may notice that Gandhari by reason of a Sale Deed dated 21.1.1960 conveyed her right, title and interest in the properties in question purported to be based on the said Deed of Gift dated 25.5.1959 in favour of Hamchandra Malakar. Arvinda Sarma allegedly entered into a deed of exchange of land with the said Hemchandra, grandfather of the respondent herein; pursuant whereto the grandfather allegedly came in possession of the lands in question. The names of the respondents were entered into the revenue records of rights. The plaintiffs therefore filed a suit in the Court of Munsif, Barpeta, which was registered as title suit No. 111/1966. We may at this juncture notice that the plaintiffs filed an application for grant of probate in their favour which was allowed by order dated 20th November, 1973.

4. The learned Trial Judge having regard to the pleadings of the parties inter alia framed the following issues:

1. Whether the Court has got pecuniary jurisdiction to try this suit.

2. Whether proper Court fees have been paid

3. Whether the suit is bad for non-joinder of necessary parties

4. Whether the plaintiff has got right, title and interest over the suit land

5. Whether Gandhari, wife of Durga Malakar has saleable interest over the suit land to sell it to one Hem Kanta Malakar

6. Whether the defendants have acquired valid title over the suit land by means of 'exchange' as alleged in the written statement

7. To what relief, if any, the parties are entitled

8. Whether the suit is barred by limitation."

5. In the said suit the following prayers were made:

(i) "That the plaintiffs' possession of the land in schedule 'Ka' be confirmed on declaration of their title thereto and on declaration of the principal defendant's unlawful possession null and void;

(ii) that necessary precept be issued to the S.D.C., Bajali Circle, for effecting mutation of the land in Schedule 'Ka' in favour of the plaintiffs on the basis of the probate and their long term possession;

(iii) That a perpetual prohibitory injunction be issued, restraining the principal defendants from causing hindrance to the possession of the land in Schedule 'Ka'."

6. Schedule 'Ka' of the plaint was described as under:

SCHEDULE - "Ka"

Land measuring 1 Bigha 2 katha with a revenue of Rs. 2.24 paise in dag 1628 (new)/548(old) of K.P. Patta No. 254(new)/91(old) and 4 Katha 6 lechas (revenue Rs. 1.12) in dag 1660 (new)/476 (old) of the same patta within following boundaries :-

North - Hari Prasad;

South - Nripen Sarma;

East - Andhu Kalita;

West - Arabinda Sarma/

Dag No. 1660/476.

North - Ram Nareesh Sarma;

South - Tularam Talukdar;

East - Road;

West - Kiron Sarma.

(2) Land measuring 2 Katha 16 lechas (revenue Rs. 1.12 Paise) in dage 883 of K.P. Patta No. 57 Old/368 (new) of Pathsala town, Mauza Uttar bajali, within the following boundaries :-

North - Kiron Sarma;

South - Kiron Sarma;

East - Andhu Kalita;

West - Road.

Total land measuring 2 Bigha 4 Katha 2 lecha in the two pattas in the suit land.

7. The learned Trial judge decreed the suit inter alia on the pre