The main legal point established is that mutation entries do not establish or extinguish title, and the burden of proof lies with the plaintiffs to establish their right, title, and interest in the land.

Heard Mr. A. Choudhury, learned counsel for the appellants. Also heard Mr. M.H. Ahmed, learned counsel for the respondents.

2. This appeal is preferred by the defendants against the judgment and decree dated 18.07.2005 passed by the learned Civil Judge (Sr. Divn.), Barpeta in Title Appeal No.54/2004, allowing the appeal of the plaintiffs and reversing the judgment and decree dated 21.08.2004 passed by the learned Civil Judge (Jr. Divn.) No.1, Barpeta in Title Suit No.93/1998, whereby, the suit of the plaintiffs was dismissed.

3. This second appeal was admitted to be heard by an order dated 21.02.2007 on the following substantial question of law:-

“Whether the suit of the plaintiff for right, title and interest can be decreed only on the ground that the defendant has no right, title and interest over the said land without being any discussion about the right of the plaintiff over the said land ?”

4. The learned counsel for the parties submit that in the aforesaid substantial question of law, the word “there” after the word “without” and before the word “being” is inadvertently dropped. The learned counsel for the parties are correct in making that submission.

5. The case projected in the plaint, shorn of details, is to the effect that Schedule A land measuring 16 Bigha 1 Katha 14 Lecha belonged to one Kadar Baksha Sheikh and Schedule B land measuring 12 Bigha 4 Katha 4 Lecha within Schedule A is the suit land. Kadar Baksha Sheikh had 3 sons, namely, Sakar Uddin, Nur Mohammad and Sirajul Haque and 2 daughters, namely, Kadhbanu and Darbari Nessa. Plaintiff No.1 to 9 are the heirs of Sakar Uddin and plaintiff Nos.10 to 17 are the legal heirs of Shirajul Haque. However, in paragraph 1 of the plaint, nothing was mentioned with regard to plaintiff No.10.

6. Kadar Baksha Sheikh had relinquished 4 Bigha of land forming part of Schedule A to the father of appellant Nos.1 to 8 and husband of appellant No.1, namely, Banu Sheikh. Banu Sheikh had sold 2 Katha 10 Lecha of land out of the said 4 Bigha to Sakar Uddin, which land is in Schedule B. Banu Sheikh had sold 1 Bigha of land to Habibar Rahman and therefore, he was in possession of 2 Bigha 2 Katha 10 Lecha of land in the western part of 4 Bigha land which was relinquished in his favour by Kadar Baksha Sheikh. Nur Mohammad had no share left in Schedule B land as he had sold his share to Abdul Jalil, Habibar Rahman and Insar Ali. Kadhbanu had died unmarried and her share was merged with rest of the sons and daughters of Late Kadar Baksha Sheikh. Darbari Nessa also died leaving no heirs of her own. She, during her lifetime, had taken 2 Bigha 2 Katha 5 Lecha of land and her share was purchased by the plaintiff Nos.2, 3 and 4. It was also stated that pro forma defendant sold his share to his brothers and accordingly, the plaintiffs were in possession of Schedule B land. The further case of the plaintiffs is that Banu Sheikh illegally obtained mutation in respect of Schedule A land on 28.05.1998. On 12.07.1967 also Late Banu Sheikh had got mutation in respect of Schedule A land on the ground of relinquishment in place of Late Sakar Uddin, Nur Mohammad, Late Sirajul Haque, Late Darbari Nessa and Late Kadhbanu without knowledge of the plaintiffs, though Banu Sheikh had possession over only 2 ½ Bigha of land. Accordingly, plaintiffs filed the suit, amongst others, praying for declaration of right, title and interest and confirmation in respect of Schedule B land in favour of the plaintiffs.

7. In the written statement, amongst others, plea was taken that suit was barred under Section 154 of the Assam Land and Revenue Regulation, 1886 (for short, “the 1886 Regulation”) as well as for non-joinder of necessary parties. The stand taken in the written statement was that during the settlement operation, Periodic Patta No.67 was issued in the names of Late Kadar Baksha Sheikh and Late Banu Sheikh and Banu Sheikh was in possession of 8 Bigha of land. Kadar Baksha Sheikh had relinquished 4 Bigha of la