This second appeal, has been filed by the plaintiff. The plaintiff brought a suit being Title Suit No. 130 of 1979 before the learned Munsiff No. 1 at Dibrugarh for declaration of title and recovery of khas possession by demolishing the house of defendant No. 1. That suit was decreed by the trial Court. There was an appeal being Title Appeal No.5 of 1987 before the learned Additional District Judge, Dibrugarh and the learned Additional District Judge allowed the appeal and reversed the judgment of the trial Court. The appellate Court held inter alia as follows:

(i) That the defendant No. 1 is protected under section 53A of the Transfer of Property Act.

(ii) That the defendant No. 1 has constructed a permanent house on the basis of which he is protected under section 5 of the Assam Non Agricultural Urban Areas Tenancy Act, 1955 as amended from time to time. Hence this second appeal .

2.1 have heard Shri AK Goswami, learned Advocate for the appellant and Shri A. Roy, learned Advocate for the principal respondent. None appears for the proforma respondent. Shri Goswami raises three questions :

(i) That the finding of the learned Additional District Judge that without filing a cross-objection a respondent cannot challenge a finding, is an erroneous one.

(ii) That the defendant No. 1 is protected under section 53A of the Transfer of Property Act is not a correct finding inasmuch as according to the contract between the plaintiff and defendant No. 1 the essentials of section 53A are not present.

(iii) That the defendant having denied the title of the landlord is not entitled to get the protection under the Act as such the finding that he is protected under section 5 of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955 is an erroneous finding.

3. Before we go to the detail let us have a look at the fact of the case. The plaintiff herein purchased the suit land along with other land vide Ext 1, the Deed of Sale dated 29.3.71 from proforma-defendant. As the defendant No. 1 was in possession of a part of the land of the Deed of Sale and did not vacate the same, so this case was filed. Before this suit was filed another suit was filed that is, Title Suit No. 169 of 1971 and in that suit the defendant No. 1 appeared and filed a written statement claiming that a part of the suit land was taken on lease on 3.5.53 from Pabitra Jiban Das and thereafter on 18.6.65 Pabitra Jiban Das by executing the Ext X took an amount of Rs.5,000 from him as loan and there was a clause that if this amount of Rs.5,000 with interest is not paid within 31.12.70, the land which was the subject matter of that document shall be deemed to be sold in favour of defendant No. 1 and Pabitra failed to pay the money as promised and as such by virtue of this document the defendant No. 1 became the owner of the land, and as he also claim the protection under section 53A of the Transfer of Property Act. That earlier suit was withdrawn by the plaintiff and thereafter this suit, the present Title Suit No. 130 of 1979 was filed. In the aforesaid suit the defendant No. 1 filed the written statement and he took the same plea as taken in the earlier suit meaning thereby that he is protected under section 53A of the Transfer of Property Act and he is also entitled to be protected under section 5 of the Assam Act as he has constructed the houses thereon of permanent in nature within 5 years of lease. It is the concurrent findings of fact of both the Courts below that the defendant No. 1 constructed permanent houses within 5 years from the date of lease and he was in continuous possession. But the trial Court held that the defendant No. 1 is not entitled to protection under section 53 A of the Transfer of Property Act and it was further held by the trial Court that as the title of the plaintiff was denied so he will also not be entitled to protection under section 5 of the Assam Non Agricultural Urban Areas Tenancy Act, 1955. These two findings of the trial Court were reversed by the

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