This first appeal on behalf of the defendants of Title Suit No. 36 of 1998 is directed against the judgment and order dated 26.4.2005 whereby the suit of the plaintiff was decreed for declaration of right, title, interest and recovery of khas possession by evicting the defendants No. 1, 2, 3 and 4. The impugned judgment was passed against the appellants/defendants as they failed to cross-examine the witnesses of the plaintiff and to lead evidence of their own after filing written statement.

2. One Md. Anisul Haque as plaintiff instituted aforesaid Title Suit in the court of learned Civil Judge at Jorhat stating that land measuring 13 and 2/3 lechas covered under Dag No.3789 (3669) of P.P. No.341 of Block No. 1 in Jorhat town originally belonged to one Helina Khatoon, the mother of the plaintiff and the profoma defendants No.5, 6 and 7. According to the plaintiff, the original owner while enjoying the suit land died inteste and thereupon plaintiff and the proforma defendants No. 5, 6 and 7 became the owners of the land jointly. Their names were duly mutated in the records of rights on 21.9.1978 vide Mutation Case 355 /75-76. Defendants No. 1, 2, 3 and 4 did not have any right, title and interest over the land but encroached into the same on 21.10.1997. They constructed two bamboo houses on the suit land and dis-possessed the plaintiff for which the plaintiff initiated one proceeding under Section 145 of the Code of Criminal Procedure on 22.10.1997 before the learned Executive Magistrate at Jorhat and the same was registered as Misc. Case No.258 of 1997. The learned Magistrate passed order for attachment of land on 24.10.1997. But since question on title arose in the case, the plaintiff became compelled to file the suit for declaration of right, title and interest and recovery of possession by evicting the defendants.

3. Even after service of notice, defendants did not appear and so the learned trial court by order dated 25.2.1999 decreed the suit ex-parte against defendants No. 1, 2, 3 and 4. Defendants thereafter approached this court vide RFA No. 13 of 1999 and this court by judgment and decree dated 7.4.1999 allowed the appeal and set aside the ex-parte decree. The defendants were given liberty to file written statement and to contest the suit. The suit was thereafter transferred to the court of learned Additional District Judge and thereupon the same was re-numbered as Title Suit No. 3 of 1999. The defendants appeared. Defendants No. 1, 2, 3 and 4 submitted a joint written statement while defendants No. 5, 6 and 7 submitted another joint written statement. In the written statement submitted by defendants No. 1, 2, 3 and 4, it was pleaded that the said defendants had been in possession of the land for more than 12 years and acquired adverse possession. In para- 7 of the written statement, defendants No. 1, 2, 3 and 4 denied the averments of the plaintiff made in para-3 of the plaint. In para-8 of the written statement, it was stated that the defendants did not encroach on the suit land on 21.10.1997 and that they had been continuing possession of the suit land by raising their dwelling house for more than the statutory period. Of course, they did not specify as to when they had entered into the suit land and how. They also did not make any specific averment as to whether their possession was adverse since beginning and if not since when.

4. Defendants No. 5, 6 and 7 on the other hand, by filing a joint written statement supported the case of the plaintiff and claimed that they along with the plaintiff have right, title and interest to the suit land being legal heirs of Helina Khatoon and that defendants No. 1, 2, 3 and 4 are trespassers. Defendants No. 5, 6 and 7, therefore, prayed that suit of the plaintiff be decreed.

5. Upon such rival contention of the parties, the learned trial court has framed as many as 7 issues which are quoted below:

(1)Whether there is cause of action for this suit?

(2)Whether the suit is b