An appellate court must adhere to procedural fairness and cannot introduce new issues without allowing parties to present evidence.

JUDGMENT :

BELA M. TRIVEDI, J.

1. The appellants-original plaintiffs have assailed the Judgment and Decree passed by the High Court of Gauhati in Regular Second Appeal No. 74/2006, whereby the High Court had allowed the appeal preferred by the respondents-defendants, holding that the appellants-plaintiffs were not entitled to get the recovery of khas possession of the suit land by evicting the respondents-defendants therefrom.

2. The broad facts leading to the present appeal are that the appellants-plaintiffs had filed the Title Suit No. 5/2002 in the Court of Civil Judge (Junior Division) No. 2, Barpeta seeking declaration with regard to the right, title and interest over the scheduled land and for evicting the respondents-defendants from the suit land in question, as also seeking permanent injunction. The said suit was contested by the respondents-defendants by filing the written statement. From the pleadings of the parties, the Trial Court had framed the following issues:

“1. Whether the suit is barred by limitation?

2. Whether the plaintiff has right, title and interest over the suit land?

3. Whether the plaintiffs allowed the defendants to cultivate one portion of the suit land in “Adhiar system” and on 19.11.2001 the defendant encroached into the rest portion of suit land and constructed a thatched chali?

4. Whether the defendants have been under the possession of the suit land since 30 years?

5. Whether the plaintiff is entitled to get a decree as prayed for?”

3. The Trial Court decided the issue Nos.1 and 4 against the defendants and issue Nos.2 and 3 in favour of the plaintiffs, and consequently issue No. 5 was also decided in favour of the plaintiffs. Accordingly, the Trial Court vide the Judgment and Decree dated 19-5-2004 had decreed the suit of the appellants-plaintiffs.

4. Being aggrieved by the same, the respondents-defendants had preferred an appeal before the Court of Civil Judge (Senior Division) being Title Appeal No. 35/2004, which came to be dismissed by the Appellate Court vide the Judgment and Order dated 21-11-2005.

5. The aggrieved respondents-defendants preferred the Second Appeal being Regular Second Appeal No. 74/2006. The said Second Appeal was admitted by the High Court on 16-3-2007, by framing the following substantial question of law:

“1. Whether the annual patta holder has the right to transfer the land for which he has only possessory right to another person?”

6. Thereafter, the High Court again framed two additional substantial questions of law on 05-02-2015 which are as follows:

“1. In view of the admissions contained in Paragraph 4, 5 and 6 of the plaint, whether the defendants can be said to have acquired the status of non-evictable tenants under the Assam Temporary Settled Areas) Tenancy Act, 1971?

2. Whether the suit itself was not maintainable due to non-compliance of Section 51 and 54 of the Assam (Temporary Settled Areas) Tenancy Act, 1971?”

7. Again, the High Court framed one additional substantial question of law on 25.03.2015, which reads as follows:

“1. Whether the declaration of right, title and interest by the Courts below is at all legally justified in view of the position that the same was granted on the basis of Exhibit 1, i.e. the Annual Petta.”

8. As transpiring from the impugned Judgment, the appeal was partly heard on 25-03-2015 and again was concluded on 27-03-2015, however, on both the occasions, none had appeared on behalf of the appellants-plaintiffs, and the High Court vide the impugned Judgment dated 07-04-2015 allowed the said second appeal and set aside the Judgment and Decree passed by the two courts below. It has been held by the High Court inter-alia that though the Courts below had dismissed the appeal of the respondents (defendants) on the ground that they had failed to prove adverse possession of the suit land, however, as per the legal position, the appellants- plaintiffs could succeed only on the strength of their own case, irrespective of the question whether the responden