C.R. Sarma, J.

1. Heard Mr. A. Choudhury, learned counsel, appearing for the appellants/defendants. None represented the respondent/plaintiff. This appeal is directed against the judgment and decree, dated 04.06.2002, passed by the learned Civil Judge (Senior Division), Nagaon, in Title Appeal No. 04/2001, whereby the learned Civil Judge (Senior Division), Nagaon set aside the judgment and decree, dated 19.12.2000, passed by the Civil Judge (Junior Division) No. 1, Nagaon in Title Suit No. 137/1997.

2. The respondent, as plaintiff, claiming to be owner of a plot of land, measuring 1 (one) Bigha 2 (two) Khatas, as mentioned in the schedule "A" to the plaint, instituted T.S. No. 137/1997 before the Civil Judge (Junior Division), Nagaon, seeking declaration of right, title and interest, in respect of the "A" schedule land, khas possession in respect of "B" Schedule land and confirmation of possession in respect of Schedule "C" land. Schedule "A" land includes the land described in Schedules "B" and "C".

3. The plaintiff's case, in brief, may be stated as follows:-

A plot of land measuring 1 (one) Bigha and 2 (two) Khatas, as described in Schedule "A" is his ancestral property and after the death of his father, he alongwith his brother namely, Biren Hazarika (since deceased) and their mother Smti. Gunamai Hazarika inherited, owned and possessed the entire suit land. The appellant i.e. the Principal Defendant, in 1995 trespassed into a plot of land, measuring 1 (one) Bigha 1 (one) Khata i.e. the "B" Schedule land and illegally occupied the same. The remaining 1 (one) Khata i.e. the "C" schedule land having a family Namghar (i.e. temple) therein, is in the possession of the plaintiff. Despite repeated requests, made by the plaintiffs, the said defendant refused to vacate the land and denied the right, title and interest of the plaintiff. Hence, the plaintiff instituted the said suit, seeking relief as indicated above.

4. The plaintiff, besides making some of the co-pattadars, as proforma defendants, added the son of his brother late Biren Hazarika, as proforma defendant No. 8 and the legal heir of his mother, Gunamai Hazarika, as proforma defendant No. 9. However, he did not seek any relief against the said proforma defendants. None except the Principal defendants contested the suit, therefore, it proceeded ex-parte against all the proforma defendants.

5. The principal defendants contested the plaintiff's claim by filing written statement. Their plea was that the suit land, measuring 1(one) Bigha 1 (one) Khata 15 1/2 (fifteen half) lechas, out of "A" Schedule land, though inherited by the plaintiff and his brother Biren Hazarika, they, by executing an unregistered sale deed (Kachha deed), on 15.5.1996, transferred the suit land in favour of the defendant No. 1 and his brother Shri Hiren Hazarika (since deceased) and accordingly, after taking possession of the same, the defendant No. 1 and his said brother have been enjoying the suit land from the said date of purchase. The defendants also stated, in the written statement, that, despite giving assurance, the said vendors i.e. the plaintiff and his brother failed to execute registered sale deed. The contesting defendants also averred that there was no cause of action for the suit, that the suit was barred by law of limitation, that the suit was bad for non-joinder and mis joinder of necessary parties and concealment of material facts. The contesting defendants further contended that their possession was adverse to the interest of the plaintiffs.

6. Upon the pleading of both the parties, the learned trail Judge framed the following issues:

(1) Whether the plaintiff has any cause of action?

(2) Whether the suit is maintainable in its present form?

(3) Whether the suit is bad for non-joinder and mis-joinder of necessary parties?

(4) Is the suit barred by the principle of waiver, estoppel and acquiescence?

(5) Is the suit liable to fail for want of jurisdiction?

(6) Has the plaintiff any title