JUDGMENT AND ORDER (Oral)

Heard Mr. M.H. Rajbarbhuiyan, learned counsel for the appellants as well as Mr. P.K. Deka, learned counsel for the respondents.

2. The present second appeal has been preferred by the defendants challenging concurrent findings of the learned courts below that the appellants failed to prove tenancy under the plaintiffs.

3. As many as 9 plaintiffs instituted Title Suit No. 26 of 2002 in the Court of learned Civil Judge, Hailakandi, praying for a decree for declaration of right, title and interest of the plaintiffs and recovery of Khas possession by evicting the defendants. Initially, the suit was filed praying for declaration of right, title and interest and confirmation of possession over the suit land. However, during pendency of the trial the plaint was amended incorporating a statement that the plaintiffs were dispossessed during the pendency of the suit and consequently, the suit for confirmation of possession was converted into a one for recovery of possession. The plaintiffs pleaded that Kamini Kar Purkayastha, their grandfather was the original owner of the land in R.S. Patta No. 30 which was issued showing names of all the patta holders in the said land. On the death of Kamini Kar Purkayastha his sons Kamala Kanta Kar Purkasthya, Karuna Sindhu Kar Purkasthya & Nolini Kanta Kar Purkasthya were incorporated in the records of rights. The three brothers purchased 12K 2 Chs of land in R.S. Patta No. 30 from one Anjar Ali by a registered Sale Deed. They purchased land measuring 10B. 6K 6Chs from Yakub Ali and land measuring 3B 12K 13 Chs from one Muslim Ali and thus they became owner and possessors in respect of land measuring 26 B 1K 11Ch of land. Each of the sons was owner of 1/3 of the aforesaid land. While the plaintiffs were enjoying the whole land without any let or hindrance from any quarter, the principal defendants tried to dispossess them from the suit land by preventing the labourers from fencing the land for which plaintiff No.4 lodged a complaint before the District Magistrate, Hailakandi, on 16.11.2001. It led to drawal up of a proceeding under Section 145 CPC. The proceeding was dropped by the learned Magistrate whereupon a revision petition was preferred before the learned court of Sessions on 28.11.2001. According to the plaintiffs, the principal defendants took away the paddy grown on the suit land forcefully and in that connection C.R. case No. 1136 of 2001 was lodged. During pendency of the criminal proceeding, threat for dispossession mounted high for which the plaintiffs were compelled to file the suit for declaration and injunction. Appearing in the case, defendant No. 1 to 10 filed a join written statement and contested the claim of the plaintiffs in Paragraph-9 of the written statement the defendants pleaded “that the plaintiffs are not agriculturists and they have no title or possession over the suit land.” Having denied the title of the plaintiffs the tenant claimed in the subsequent paragraph that they had been in the possession of the suit land for last 35 years by cultivating the land and that they were tenants under Kamini Kumar Kar Purkayastha. After death of Kamini Kumar Kar Purkayastha, his sons became the landlords. In Paragraph 14 of the written statement the defendants claimed acquisition of tenancy right in respect of the land under provisions of Assam (Temporary Settled Areas) Tenancy Act, 1971. In fine, the defendants prayed for dismissal of the suit of the plaintiffs on assertion of tenancy right.

4. On the basis of the aforesaid rival contentions of the parties, learned Trial Court framed as many as 4 issued as follows:

“1) Is the suit maintainable in its present form and manner?

2) Whether answering defendants are tenants (Bhagidar) under Karuna Sindhu Kar Pursasthya in respect of suit schedule land?

3) Whether plaintiffs were dispossessed on 03.02.2003 and entitled to get recovery of khas possession over the suit land?

4) Whether plaintiffs are entitled to get a

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