A.K. Goswami, J.

This appeal is preferred against the judgment and decree dated 21.11.2005 passed by the learned Civil Judge (Senior Division), Barpeta in Title Appeal No. 35/2004 whereby the appeal was dismissed by upholding the judgment and decree dated 19.5.2004 passed by the learned Civil Judge (Junior Division) No. 2, Barpeta in Title Suit No. 5/2002.

2. Mr. A.M. Buzarbaruah, learned senior counsel, at the outset, has submitted that inadvertently some mistakes had been committed while translating the plaint and the written statement and he submits that he will address the Court, also referring to the vernacular version.

3. The case of the plaintiff, as stated in the plaint, is that the land described in the Schedule to the plaint measuring 5 bighas 17 lechas covered by Dag No. 52 of Patta No. (old) 56 and (new) 62 situated at village-Bar Amrikhowa, Mouza-Sarukhetri in the district of Barpeta, was an annual patta land of his father Bengaram Barman and after his death, the name of the plaintiff was mutated in respect of the suit land. The plaintiff was in occupation of the suit land after the death of his father. In the said plot of land there is a fishery excavated by the father of the plaintiff covering almost 1/2 of the schedule land. That apart, there is a bamboo groove and residence of the plaintiff. The father of the plaintiff cultivated the land and earned his livelihood. The plaintiff fell sick in the year 1991 and the defendant had started cultivation over the portion of the land as Adhiar in the year 1407 (Bangla). Ahu and sali cultivation was carried out in the suit land and for the years 1407 and 1408 (Bangla) the defendant No, 1 gave a share of "Adhi" to the plaintiff. However, subsequently, defendant No. 1 did not give paddy and when the plaintiffs went to take "Adhi" paddy on 19.11.2001, he was sent back and the defendant erected a thatched shed, on the suit land.

4. The plaintiffs had prayed for the following reliefs:

(i) For declaration of right, title and interest over the schedule land described, in favour of the plaintiffs;

(ii) For delivery of Khas possession by evicting the defendants;

(iii) For granting injunction in favour of the plaintiffs and restraining the defendants from causing damage to the properties, fishes, trees and from causing any damage to the land in question;

(iv) For decree of the land in question in favour of the plaintiff and and/or any other relief in favour of the plaintiff.

5. The aforesaid suit was registered as Title Suit No. 5/2002 in the Court of the Civil Judge, No. 2, Barpeta.

6. The defendant Nos. 2 and 3 are sons of defendant No. 1. The defendants had filed a written statement contending that the suit is not maintainable in view of the fact that the defendants had questioned the declaration of the plaintiff's patta as illegal in Sarthebari N.R. case No. 1/2001-2002 pending before the Barpeta Revenue Circle. While denying the averments made in the plaint, it is stated that the suit land was covered with jungle and the defendant No. 1 being a landless cultivator, he cleared the jungle and made it fit for cultivation some 30 years before. He dug up a tank over one portion of the suit land and erected a house wherein he is living. He is in continuous possession of the said land. It is further stated that fishes come from outside to the pond and the defendants are doing fishing in the pond. The bamboo groove and the trees were also planted by the defendants in the homestead land and the plaintiff, at no point of time, planted any trees and he was never in possession of the suit land and had never enjoyed the harvest. Towards the end of 2000, the plaintiffs demanded the defendant No. 1 to vacate the suit premises on the ground that he was having the patta of the land. The defendant No. 1 examined the documents and found that the plaintiff had illegally obtained patta of the land in question and for cancellation of the patta, he instituted Sarthebari N.R. case No. 1/2001-2002 w