Arup Kumar Goswami, J.

1. Heard Mr. A. Upadhyay, learned counsel for the appellants. None appears for the respondents though the names of the counsel are shown in the cause-list. This appeal is directed against a judgment and decree dated 28.9.2005 passed by the learned Additional District Judge (Ad hoc), Bongaigaon in Title Appeal No. 4/2004 setting aside the judgment and decree dated 21.5.2004 passed by the learned Civil Judge (Senior Division), Bongaigaon in Title Suit No. 34/2000.

2. The plaintiff filed a suit for declaration of right, title and interest and for khas possession by evicting the defendants from the suit land. Initially, when the suit was filed, there were eight defendants. Right, title and interest was sought for in respect of schedule-A land measuring 8 bigha and recovery of possession was sought for in schedule-B land measuring 3 bigha Subsequently, defendant Nos. 4 to 8 delivered vacant possession to the plaintiff and defendant Nos. 1 to 3 continued to remain in possession in respect of 1½ bigha of land. On the basis of a petition filed by the plaintiff, the prayer of the plaintiff for withdrawal of the suit against the defendant Nos. 4 to 8 was allowed. However, prayer for re-filing of the suit was rejected due to advance stage of the suit.

3. It was pleaded that schedule-A land was allotted to the plaintiff in the year 1976, he being a military personnel and an annual patta was issued to him. In the year 1994, annual patta was converted to periodic patta on payment of premium. He had kept one Suresh Mandal as caretaker of the suit property, who was living there along with his family members. On 1.4.1996, the defendants and their men encroached and occupied about 3 bigha of land and started cultivation despite objection raised by the caretaker. On request made by the plaintiff, the defendants had assured to deliver back possession. On 7.12.1999, when request was made once again, they became furious and threatened the plaintiff with dire consequences.

4. The defendant Nos. 1, 2 and 3 filed joint written statement. While denying the averments made in the plaint regarding allotment of schedule-A land, issuance of annual patta as also the periodic patta, it is stated that they were possessing 3 bigha of land, which is part of a big plot of khas land of more than 150 bighas, for 20 years by constructing dwelling houses and growing mango, coconut, bamboo trees, etc., and therefore, they had been in adverse possession of the land in question.

5. On the basis of the pleadings, the learned trial court framed the following issues:-

"1. Is there any cause of action for the suit?

2. Whether the plaintiffs suit is barred by limitation by way of adverse possession by the defendants?

3. Whether the suit land was a part of allotted land by the Govt. to the plaintiff as military personnel?

4. Whether plaintiff has right, title and interest over the suit land?

5. Whether the defendants are liable to be evicted from the suit land?

6. Whether the plaintiff is entitled to a decree of the suit as prayed for?

7. What other reliefs parties are entitled to?"

6. While the plaintiff examined two witnesses, defendants adduced no evidence. The plaintiff examined himself as PW1 and the caretaker Suresh Mandal as PW2. The plain-tiff also exhibited documents including annual patta as Ext. 3 and periodic patta as Ext. 5.

7. The learned trial court, on consideration of the evidence on record, decreed the suit of the plaintiff. It was held that the plaintiff had been able to prove right, title and interest. Plea of adverse possession was also negated. Though the learned trial court had noted that annual patta No. 12 was converted to periodic patta in the year 1994, Ext. 5 was wrongly noted to be a revenue receipt.

8. The lower appellate court affirmed the finding that the plaintiff has right, title and interest on the land measuring 8 bigha as described in schedule-A to the plaint However, on the basis of the statements made by PW 2 in his cro