Heard Mr. M. Singh, learned counsel for the appellant. Also heard Mr. S.R. Bhattacharjee, learned Senior counsel appearing for the respondent. Hearing having not been concluded on 09.06.2015, it was resumed to-day.

2. This appeal is directed against the judgment and decree dated 04.06.2004 passed by the learned Civil Judge (Sr. Divn.) No.1, Cachar, Silchar, dismissing the appeal, and upholding the judgment of the learned Civil Judge (Jr. Divn.) No.2, Cachar, Silchar, in Title Suit No.195/ 1984.

3. The learned trial court dismissed the suit of the appellant holding that the suit was bad for non-joinder of necessary parties. The learned lower Appellate Court, while affirming the said judgment and decree of the learned Trial Court, also held that there was no cause of action for filing a suit.

4. On 29.11.2004, the second appeal was admitted to the heard on the following substantial question of law:-

Whether the suit can be dismissed on the line of non joinder of necessary parties under Order 1 Rule 9 CPC ?

5. Subsequently, when the matter was taken up for final hearing, after hearing the learned counsel for the parties, on 09.06.2015, one more substantial question of law was framed, which is to the following effect:-

Whether the learned lower Appellate Court is justified in holding that there was no cause of action for filing of the suit ?

6. The predecessor of the plaintiff and defendant was one Paranmoni Nath. Apart from the plaintiff Samar Krishna Nath and the defendant Amarendera Nath, Paranmoni Nath had one more son, namely, Ramkrishna Nath and 2 daughters, namely, Chanchala and Chapala. Wife of Paranmoni Nath is Charubala. Paranmoni Nath executed a Will on 03.10.1962 and the plaintiff was appointed the executor. Paranmoni died on 16.06.1968. Plaintiff instituted a Title Suit No.7/1970 for getting probate of the Will, which was disposed of on 24.02.1973.

7. In the plaint, it is stated that by virtue of the Will, the plaintiff is entitled to half of 5 Bigha 8 Katha 5 Chatak of land, which is homestead land, apart from other landed properties. The case set out in the plaint was that the defendant was collecting materials for construction of the house in the Schedule-2 land measuring 25 cubits x 14 cubits and the cause of action arose on 24.10.1984 when such an attempt was made by the defendant to construct the house. Schedule-1 is an area containing 5 Bigha 8 Katha 5 Chatak in Dag No.347 of second R.S. Patta No.121 of Mouza- Dudhpatil Part-V. The plaintiff filed the suit for right, title and interest in respect of half of the Schedule 1 land and delivery of khas possession of Schedule 2 land and permanent injunction.

8. In the written statement filed, apart from usual legal pleas, such as the suit is barred by limitation, waiver and acquiescence, it was pleaded that there is no cause of action against the defendant and that the suit was also not maintainable for not impleading the co-sharers of the patta, as also the mother and the other brother of the plaintiff. The allegation that the defendant is trying to construct the house as stated in the plaint was denied. It was pleaded that Paranmoni Nath’s father was Binoy Nath, who had 2 brothers, namely, Sibaprasad Nath and Kinoy Nath and they were also residing in the suit land by constructing houses. It was asserted that there were co-sharers in the suit patta and without partition, the plaintiff was not entitled to any relief. It was also highlighted that the Will did not mention about any Dag or area. It is stated that the father of the plaintiff had gifted an area of 13 Katha by a registered Deed of Gift dated 12.04.1960 in favour of the Government for digging a pond for drinking water purpose of the villagers.

9. The substituted defendant Nos.1 (Ka) to 1 (Gha) also filed a written statement contending, amongst others, that due to non-substitution of the legal representatives of the deceased defendant within the prescribed period of time, the suit had abated. While