This is a defendant's second appeal against the judgment and decree dated 4.3.96 passed by the learned District Judge, Tinsukia in Title Appeal No. 5 of 1994.

2. The brief facts of the case may be noticed as hereunder:

3. The respondent in the present appeal as plaintiff instituted a suit being Title Suit No. 46 of 1996 in the Court of the learned Assistant District Judge (now Civil Judge, Senior Division) Tinsukia praying for a decree for recovery of possession of the suit land and for permanent injunction restraining the defendants from entering into the land. The case as pleaded by the plaintiff is that he was the lawful occupier of a plot of land measuring 30' x 40' as described in the schedule to the plaint in front of the printing press owned by him at Station Road, Margherita. Such possession of the suit land was obtained by the plaintiff on the basis of permission given by the authorities of N.F. Railways on 23.11.79. According to the plaintiff, his father had constructed a Siva Temple on the land adjacent to the suit land in the year 1979. After the death of his father, the plaintiff took possession of the temple for the purpose of managing it. The plaintiff had alleged in the plaint that on 12.8.85 the defendants encroached upon the suit land, assaulted him and dispossessed him for which after filing a criminal complaint before the police, he instituted the suit for the reliefs earlier stated. The suit in question, it may be noticed, was filed on 4.6.86.

4. The defendants (appellants in the present appeal) contested the suit by filing a joint written statement refuting the averments made in the plaint. According to the defendants, the plaintiffs suit was not maintainable as the owner of the land namely, N.F. Railways was not made a party to the proceeding. According to the defendants, the Siva Temple in question was established by the members of the public and the entire land including the suit land has all along been in possession of the temple authorities.

5. On the pleadings of the parties as many as eight issues were framed by the learned Trial Court. The learned Trial Court by the judgment and decree dated 29th January, 1990 after holding all the issues in favour of the plaintiff including the issue relating to the entitlement of the plaintiff to evict the defendants dismissed the suit on the ground that the same was not maintainable. A perusal of the judgment and decree of the learned Trial Court would seem to suggest that the point of maintainability was decided against the plaintiff on the ground that the suit ought to have been filed under Section 6|Of the Specific Relief Act in asmuch as the only relief prayed for .was recovery of possession and as the same was not done the learned Trial Court thought it fit to hold the suit to be not maintainable.

6. On appeal the learned lower Appellate Court by taking into account the Valuation of the suit in the light of the reliefs sought construed the suit to be a suit for declaration with consequential reliefs of possession and permanent injunction and on that basis came to the finding that the suit was maintainable. Further according to the learned lower appellate Court both the NF Railways and the Mandir Committee were necessary parties to the suit and as the aforesaid necessary parties were not before the Court, the learned lower appellate Court thought it fit to remand the matter back to the learned Trial Court after setting aside the judgment and decree of the learned trial Court.

7. A perusal of the order dated 29.5.96 passed by this Court while admitting this second appeal and on consideration of the arguments advanced by Mr H.N. Sarma, learned senior counsel for the appellant seem to suggest that the following two substantial questions of law arise for determination in the instant second appeal:

1. Whether a suit for recovery of possession is maintainable only under the provisions of Section 6 of the ~ Specific Relief Act and, whether the plaintiff