T.N.K. Singh, J.

1. The present second appeal filed by the appellant-plaintiff against the judgment and decree 2.3.2000 passed by the learned Civil Judge (Senior Division), Darrang, Mangaldoi in Title Appeal No. 8 of 1998 dismissing the appeal and affirming the judgment and decree dated 31.3.1998 passed by the learned Civil Judge (Junior Division) No. 2, Mangaldoi in Title Suit No. 11 of 1987 had been admitted for hearing on the substantial questions of law:

(i) Whether the learned courts below were justified in holding that Ext. 4 the sale deed was not proved, merely because the executant of the deed was not examined?

(ii) Whether the learned courts below failed to consider some relevant materials such as Ext.2, Ext.-5 and whether non-consideration of such material has vitiated the judgments?

(iii) Whether the learned trial court was justified to brush aside the examination commissioner's report by observing that it was incomplete and biased?

2. Heard Mr. B.K. Goswami, learned senior counsel assisted by Mr. T. Islam, learned Counsel appearing for the appellant-plaintiff and also Mr. C.K. Sarma Baruah, learned senior counsel assisted by Miss B. Mahanta, learned Counsel appearing for the respondents-defendants.

3. The appellant filed the Title Suit No. 11 of 1987 against the respondent-defendant No. 1 in the Court of the Civil Judge (Junior Division) No. 2 for declaration of title in respect of 1 Katha 16 lechas of land covered by Dag No. 52/575 of P.P. No. 960 situated in village Mangaldoi gaon (described in Schedule-1 to the plaint) and also for recovery of khas possession of the suit land (i.e., land in described in Schedule-2 which is a part of the land in Schedule-1) by demolishing the house of the respondents-defendant No. 1 and also permanent injunction restraining the respondent-defendants, their workmen & agent from raising new constructions and the sanitary latrine on the suit land.

4. The short pleaded case of the plaintiff in the plaint is that the appellant-plaintiff purchased 1 Bigha of land (scheduled-1) from one Mukta Ram Saikia under registered sale deed dated 12.7.1977 (Exhibit-4) and the possession also was delivered to him by said Mukta Ram Saikia. Mukta Ram Saikia purchased the said land (land described in Schedule-1) from one Naginarayan Konwar under registered sale deed dated 17.3.1964. But Mukta Ram Saikia did not mutate his name in the revenue record of the said land (Schedule-1) as he did not take steps for mutation. Naginarayan Konwar purchased 2 Bighas 3 Kathas 1 Lechas of land which include the said land i.e., 1 Bigha of land (Schedule-1) from one Bati Ram who as owner possessed the land measuring 7 Bighal Katha 11 Lechas of land covered by Dag No. 314 of P.P. No. 85, Mangaldoi gaon Mouza Chapai. The appellant-plaintiff, after purchasing the said land (Schedule-1) from said Mukta Ram Saikia under Registered sale deed dated 12.7.1977, mutated his name in the revenue record. In the last re-settlement, a patta (exhibit-5) of the said land (i.e., Schedule-1) was also prepatred in the name of the appellant-plaintiff and in the revenue records of the said land name of the appellant-plaintiff had been recorded as pattadar. In the last survey/resettlement, the area of the land purchased by the appellant/plaintiff had been reduced to 4 Kathas 14 Lechas and as such the area of the land described in the Schedule-I is only 4 Kathas 14 Lechas.

5. The respondent-defendant No. 1, Smti. Saraswati Devi also purchased 1 Bigha of land from the said owner Shri Bati Ram to the adjacent northern portion of the appellant-plaintiff land (Schedule-1) and she was in possession of the said land. The appellant-plaintiff was employed as a mechanic in the Irrigation Department and as such he was to reside at Mangaldoi town at Ward No. 1. It was not possible for him to look after the said land (Schedule-1) for some period. In November, 1978, the respondent-defendant No. 1 constructed a thatched house measuring by 20 x 10 ft. with