Heard Mr. N. Dhar, learned counsel for the appellants/defendants assisted by Mr. B. Hussain and Mr. A. Choudhury, learned counsel appearing for the respondents/plaintiffs.

2. This appeal is preferred against the judgment and decree dated 01.10.2003 passed by the learned Civil Judge (Sr. Divn.), Barpeta, in Title Appeal No.7/2000 allowing the appeal and setting aside the judgment and decree dated 21.02.2000 passed by the learned Civil Judge (Jr. Divn.), Barpeta, in Title Suit No.34/1990, whereby the suit of the plaintiffs was dismissed.

3. Initially, by a judgment and order dated 14.08.1992, suit of the plaintiffs was dismissed on the ground of pecuniary jurisdiction. However, in Title Appeal No.4/1993, by an order passed on 12.05.1994, the judgment of the learned Trial Court was set aside and the case was sent back for re-trial. Challenge made to the said order dated 18.05.1994 was negated by an order passed by this Court on 18.05.1994 in Civil Revision Petition No.322/1994.

4. The second appeal was admitted to be heard by an order dated 16.03.2004 on the following substantial questions of law:-

“(1) Whether the Chitta (Ext-1) is admissible in evidence in support of the claim of title and possession of the plaintiffs over the suit land ?

(2) Whether the suit filed by the plaintiffs for confirmation of their possession over the suit land is maintainable in view of the findings of the learned lower appellate Court that the defendants are in possession of the suit land as per evidence of DW 2 in the case record ?

(3) Whether the findings of the learned lower appellate Court that the plaintiffs are in possession of the suit land without taking consideration of the evidence of PW 3 regarding possession and identity of the suit land are sustainable in law ?”

5. At the outset, it will be necessary to state the essential facts as emerging from the pleadings of the parties.

6. The case of the plaintiffs is that suit land measuring 6 Bigha 1 Katha 12 Lecha covered by Dag No.266 under Periodic Patta No.216 of Village- Rampur originally belonged to Lalmahmud Dewani, who died in the year 1976, leaving behind his wife- Pinjira Begum, son- Hajarat Ali and two daughters- Ayesha Khatun and Amena Khatun and on his death, his heirs took possession of the land with the homestead therein. Pinjira Khatun died in the year 1977. In the later part of 1977, Hajarat Ali also died leaving behind his wife Amiran Nessa and four sons, namely, Gumar Ali, Omar Ali, Abdul Hamid and Sahjahan Ali and two daughters, namely, Mariyam Nessa and Mayful Nessa. When Hajarat Ali died, Ayesha and Amena were already married and the sons and daughters of Hajarat were all minors. On 27.11.1989, the defendant Nos.2 to 6 who are sons of defendant No.1, demanded the plaintiffs to vacate their possession failing which it was threatened that they would be forcefully dispossessed as they have a patta in respect of the suit land. Immediately, plaintiffs made enquiries in the office of the Sub-Deputy Collector and applied for the relevant documents and on 19.03.1990, on receipt of the certified copy of the chitha, they came to learn that the defendant No.1 had his name mutated on 23.05.1978 on the basis of right of inheritance and that subsequently, the land was converted into periodic patta land on 06.06.1981. It is pleaded that defendant No.1 is not a legal heir of Lalmahmud Dewani and no notice was served upon the plaintiffs, either at the time of grant of mutation or at the time of conversion of the land into periodic patta land. Accordingly, suit was filed for declaration of right, title, interest and for confirmation of possession, injunction and also for a declaration that the defendant No.1 did not acquire any right, title and interest on the strength of mutation order dated 23.05.1978 and the conversion order dated 06.06.1981; to issue precept to the Revenue Authority to remove the name of defendant No.1 from the patta and to include the name of the plaintiffs in the pat