B.P. Katakey, J.

1. This appeal by the defendants, is directed against the judgment and decree dated 23.03.2001 passed by the learned Civil Judge (Sr. Division), Morigaon in Title Appeal No. 1/2000, dismissing the appeal preferred by them by upholding the judgment and decree dated 13.12.1999 (decree drawn on 20.12.1999) passed in Title Suit No. 29/1994 by the learned Civil Judge (Jr. Division) (now Munsiff), Morigaon, whereby and whereunder the suit of the plaintiffs/respondents is decreed. The respondent Nos. 1 to 5 as plaintiffs instituted the suit for declaration of right, title and interest over the land measuring 3 kathas 5 lechas in Dag No. 1111 of periodic patta No. 461 of village Barangabari under Mouza-Dandua in the district of Morigaon, more fully described in Schedule-A to the plaint; for confirmation of possession in respect of 1 katha of land, more fully described in Schedule-B to the plaint, which is part of the Schedule-A land and for recovery of khas possession in respect of 1 katha 13 lechas of land, more fully described in Schedule-C to the plaint, which is also the part of the Schedule-A land. The plaintiffs also prayed for issuance of precept to the revenue authority for cancellation of the mutation dated 10.02.1994 granted in favour of the defendant No. 1. The case of the plaintiffs as projected in the plaint is that the Schedule-A originally belonging to Gura Kalita alias Bora and Lessa Kalita. After the death of Gura Kalita his share in the property devolved on his three sons, namely, Teen Bora, Gunaram Bora and Deben Bora and on the death of Lessa Kalita, his share in the property devolved on his only son, namely, Dharani Kalita alias Bora and accordingly all of them have been jointly enjoying the land. According to the plaintiffs, while they were in joint possession, the proforma defendants, namely, the successor-in-interest of Teen Bora and Deben Bora, who are the brothers of plaintiffs' father Gunaram Bora and Dharani Kalita, the successor-in-interest of Lessa Kalita. given up their rights in respect of their shares, which land was under possession of the plaintiffs from before, by virtue of amicable partition amongst the members of the joint family, for which a document dated 14.09.1990 was subsequently executed, which however, was not registered. It is also the case of the plaintiffs that they also given up their rights and possession in respect of 12/13 lechas of land in favour of Dharani Kalita alias Bora, who is staying on the said land by constructing dwelling house. It is also the case of the plaintiff that on or about 02.03.1992 the principal defendants/appellants encroached about 1 katha 13 lechas of land out of the land measuring 3 kathas 5 lechas in the suit Dag and in the year 1993 the principal defendant No. 1 constructed a small room and used as "Monikut" (temple), thereby encroached into the suit land and dispossessed the plaintiffs from the said land. The further pleaded case of the plaintiffs is that on 10.02.1994 the Circle Officer, Morigaon mutated the name of the defendant No. 1 in the revenue record. The plaintiffs, who are the successor-in-interest of Gunaram Bora, therefore, instituted the suit as aforesaid.

2. The principal defendants/appellants contested the suit by filing the joint written statement contending inter alia that the plaintiffs have no right, title and interest over the suit land and also denying execution of any sale deed by the successor-in-interest of Teen Bora, Deben Bora as well as Dharani Kalita apart from denial of the execution of the deed dated 14.09.1990. According to the defendants, the land originally belonged to one Mila, who had three sons through two wives i.e. Lessa Kalita, Gura Kalita through the first wife and Bogiram Kalita through the second wife, who amicably partitioned the land and consequently the land measuring 1 bigha 1 katha 16 lechas in Dag No. 1052 fell in the share of Lessa Kalita and Gura Kalita jointly and the land measuring