Heard Mr. D. Choudhury, learned counsel for the appellants. Also heard Mr. B. Banerjee, learned Senior Counsel assisted by Mr. S.K. Mukhtar, learned counsel for the respondents.

2. This appeal is by the plaintiffs against the judgment and decree dated 20.01.2005 passed by the learned Civil Judge (Sr. Divn.), Nalbari in Title Appeal No.17/2004 allowing the appeal of the defendant and reversing the judgment and decree dated 28.06.2004 in Title Suit No.22/01 passed by the learned Civil Judge (Jr. Divn.) No.1, Nalbari, whereby suit of the plaintiffs was partly decreed without cost.

3. The case set out by the plaintiffs is that father of the plaintiffs, namely, Rajendra Deka and Gajia @ Gaji were brothers. Gaji was untraced for 30/35 years and as such the plaintiffs’ father was possessing the entire land in K.P. No.189 of Village- Narayanpur. There is 2 Bigha 9 Lecha, 1 Bigha 4 Katha and 1 Bigha 2 Katha 11 Lecha, in Dag Nos.62, 76 and 94 of K.P. No.189, respectively, totaling 5 Bigha 2 Katha. Defendant has his land near the said plots of land in a different Dag and Patta. Father of the plaintiffs died about 4 years back from the date of filing of the suit, that is to say, around 1997. After demise of the father, plaintiff No.2 was taking care of the suit land and while depositing land revenue, on 19.02.2001, he came to learn that defendant got his name mutated in place of plaintiffs’ father in Schedule ‘Kha’ measuring 1 Bigha 4 Katha land in Dag No.76 of K.P. No.189 and the name of the father was also mutated in place of Gaji by right of inheritance in Schedule ‘Kha’ land. It is averred that defendant had mutated his name in place of the father of the plaintiffs by right of purchase. The father of the plaintiffs had never sought for any mutation in respect of ‘Kha’ Schedule in place of Gaji. On being protested by the plaintiffs, defendant acknowledged that he had mutated his name and denounced the title of the plaintiffs. Accordingly, plaintiffs filed the suit.

      4. In the written statement filed, defendant pleaded that Gaji went missing about 45 to 46 years back and not 30/35 years back as stated by the plaintiffs. It was admitted that share of Gaji was enjoyed by Rajendra. It was pleaded that as Gaji was not seen for more than 7 years, father of the plaintiffs became the owner in respect of share of Gaji and he sold ‘Kha’ Schedule land on 16.10.1964 and delivered possession to him. The vendor also stated that he would have no objection if he gets his name mutated and consequently, by disclaiming the right, title and interest of Rajendra, he was in possession of the said land openly and without any interruption for more than 12 years as his own land and he had continued to remain in possession of the same. It is admitted that no sale deed was executed by Rajendra but he had signed in the chitha. Rajendra had not made any objection in his life time in respect of the mutation and such mutation was effected long time before Rajendra had died.

      5. On 16.112005, this court framed the substantial questions of law, which are as follows:-

“1. Whether the findings substituted by the appellate Court to hold the possession of the defendant for 12 years adverse to the interest of the actual owner of the land inspite of admission of the defendant in cross examination as D.W.-1 that he was in possession for 8-9 years, is perverse findings and whether the findings of him can be substituted in place of the reasoned findings of learned Civil Judge, Jr. Division, Nalbari on this point ?

2. Whether the adverse possession by dint of possession for 8 & 9 years by the defendant can have the right, title and interest by right of adverse possession under Article 64 of the Limitation Act ?

3. Whether the Chitha mutation can provide the claim of right, title and interest of the defendant over the suit land without having any proof of transfer of title under the transfer of Property Act ?

4. Whether for inheritance of the property of the pe