Heard Ms P. Bhattacharjee, learned counsel for the appellant. Also heard Mr. A. Sattar, learned counsel appearing for the respondent.

2. This appeal by the plaintiff is directed against the judgment and decree dated 30.7.2005 passed by the learned Civil Judge (Senior Division), Barpeta in Title Appeal No. 30/2004 allowing the appeal of the defendants and setting aside the judgment and decree dated 8.6.2004 passed by the learned Civil Judge (Junior Division) No. 1, Barpeta in Title Suit No. 40/2003 whereby the suit of the plaintiff was decreed and counter-claim of the defendants was dismissed.

3. The second appeal was admitted to be heard by an order dated 12.12.2005 on the following two substantial questions of law:

“1. Whether the findings of the learned lower appellate court that the defendant and late Asrab Ali, father of the plaintiff were the ‘co-owners’ of the suit land is perverse?

2. Whether the learned lower appellate court misconstrued the provision of law relating to acquisition of title over immovable property absolutely based on mutation without the right of inheritance, transfer or exchange and merely on the basis of long possession and unauthorized mutation?”

4. It appears that originally three plaintiffs had filed the suit. However, the present appeal is only by the plaintiff No. 1. Other plaintiffs are not arrayed as proforma respondents.

5. The case of the plaintiffs as projected in the plaint is that Asrab Ali had right, title and interest over a plot of land measuring 2 bigha 5 lecha covered by Dag No. 121 of KP Patta No. 38, which is described in Schedule A to the plaint, and the land was settled with him during the Settlement Operation of 1958-65. Asrab Ali died about 15 years back leaving behind the plaintiff Nos. 1 and 2 and another son, namely, Sayed Ali, who died about four years ago leaving behind his wife and a minor daughter, who are arrayed as plaintiff Nos. 3(a) and 3(b).

6. On the death of Asrab Ali, names of plaintiff Nos. 1, 2 and 3 were recorded by way of mutation on 21.3.1989 in respect of the entire Schedule A land. On 5.11.2002, the defendant, accompanied by labourers, who were armed with deadly weapons, such as dao, sword and lathi, forcibly occupied southern part of Schedule A land measuring 1 bigha 3 lecha, more fully described in Schedule B to the plaint, and constructed a dwelling house. On being asked, a plea was taken by the defendant that he had entered his name in the Revenue Record as a co-sharer of Schedule A land and was owner to the extent of 1 bigha 3 lecha. Enquiries made by the plaintiffs revealed that in the Revenue Record, the name of the defendant was recorded along with the original pattadar by an order of the Sub-Deputy Collector dated 19.11.1973. It is pleaded that when the plaintiffs obtained mutation on 21.3.1989 or on 19.10.2002, when the plaintiffs obtained certified copies of the Jamabandi, the same did not show mutation of the name of the defendant and therefore, it is clear that fraudulent entries were made. Accordingly, the plaintiffs prayed for declaration of right, title and interest over the suit land, which is Schedule B land, and also a declaration that the defendant had no title over the suit land; declaration that mutation obtained on 19.11.1973 is fraudulent and inoperative; issue of precept to the Revenue Authority to delete the name of the defendant from the Revenue Record; delivery of khas possession to the plaintiffs by evicting the defendant; etc.

7. In the written statement and the counter-claim, the defendant had pleaded that Asrab Ali and the defendant were in possession of 2 bigha 5 lecha land when the land was government land and patta in respect of Schedule A was issued in the name of the father of the plaintiffs and defendant continued to remain on the suit land and subsequently, at the instance of Asrab Ali, the name of the defendant was also recorded as pattadar in respect of 1 bigha 3 lecha of land as he was in possession of the same.