1. Heard Mr. B.R. Dey, learned Senior counsel appearing for the appellant.

2. This second appeal has been filed challenging the judgment and decree dated 26-09-2014 passed by the learned District Judge, Nagaon in Title Appeal No. 09/2012 affirming the judgment and decree dated 10-09-2012 passed by the learned Trial Court in Title Suit No. 44/2009 decreeing the suit filed by the respondent/plaintiff.

3. The brief factual background of this case is that the plaintiff is the exclusive owner of a plot of land measuring 3K-12L covered by Dag Nos. 318, 320 and 458 of Periodic Patta No. 103 of Puronigudam town kissam, Chalchali Mouza in the district of Nagaon together with houses and other structures standing thereupon, which has been described in the schedule to the plaint. It is the case of the plaintiff isthat the defendant is a distant relative of his and on being approached by the defendant with a request to allow him to stay in the suit land, the plaintiff had accepted such request on humanitarian ground having regard to the helpless condition of the defendant as well as in view of the fact that the defendant had to stay away from the suit property in connection with his service. The defendant, however, assured the plaintiff that he would vacate the suit land as and when required by the plaintiff. On such condition the defendant started living there by constructing houses over it as a permissive occupier under the plaintiff. In the early part of 2008, the plaintiff had returned back to his hometown and asked the defendant to vacate the suit land. Initially the defendant had agreed to vacate the same on or before 31-12-2008 but subsequently, he did not comply with the said assurance given to the plaintiff. The plaintiff had again approached the defendant asking him to vacate the suit land and at that point of time the defendant had denied his title over the suit land and refused to vacate the same which has prompted the plaintiff to institute the aforementioned title suit seeking declaration of right, title and interest and also for recovery of possession of the suit land by evicting the defendant.

4. Upon receipt of the summons the defendant had appeared and contested the suit by filing written statement, inter alia, raising question as regards maintainability of the suit on the ground of want of cause of action, non-joinder of necessary parties, suit being barred by limitation as well as on the principles of waiver, estoppels and acquiescence. The defendant No. 1 had further taken a plea that he had acquired title by prescription over the suit land by way of adverse possession. It was also the pleaded case of the defendant that his mother had constructed houses over the suit land and thereafter his mother and brother were living in the suit property and not the defendant himself. The defendant’s further plea was that suit land being adjacent to his paternal land, about 45 years ago plaintiff’s father Toslim Ali had made a proposal to sell the suit land to the mother of the defendant. She had also agreed to purchase the same and thereafter the price was also settled and paid to Toslim Ali pursuant whereto the possession of the suit land was delivered in favour of the mother of the defendant. However, Toslim Ali died before execution of the sale deed as a result of which the mother of the defendant had continued in possession in respect of the suit land continuously by constructing houses thereupon. On such basis the defendant had prayed for dismissal of the suit of the plaintiff with cost.

5. Based on the pleadings of the parties the learned Trial Court had framed as many as 7 issues which are as follows:

1. Whether there is any cause of action for the suit?

2. Whether the suit is maintainable in its present form?

3. Whether the plaintiff has right, title and interest over the suit land?

4. Whether the plaintiff has transferred the suit land to the defendant?

5. Whether the defendant is entitled to any right over the suit