This is an appeal under Order XLIII Rule 1(u) of the Code of Civil Procedure challenging the judgment and order dated 13.09.2004 passed by learned Civil Judge (Sr. Divn.) No. 2, Kamrup at Guwahati in title appeal No. 71/2003 whereby the learned first appellate court remanded the matter to the learned trial court for retrial setting aside the judgment and decree dated 22.09.2003 passed in title suit No. 211/2001 of the court of learned Civil Judge (Jr. Divn.) No. 1, Kamrup at Guwahati.

2. The appellant herein, as plaintiff, instituted title suit No. 211/2001 in the court of learned Civil Judge (Jr. Divn.) No. 1, Kamrup at Guwahati against one Haren Kalita as defendant and two others as proforma defendants stating that land measuring 3K covered by dag No. 955 of KP Patta No. 761 of Village Nahira under Mouza Rampur in the district of Kamrup was owned and possessed by Jiumala Kalita by way of exchange with the original owner Dandi Kalita. Jiumala Kalita being owner in possession of the suit land obtained mutation in her name and thereafter executed registered sale deed dated 28.12.1990 in favour of the plaintiff and handed over possession. Plaintiff also obtained mutation in his favour but son of aforesaid Jiumala Kalita, Sri Haren Kalita dispossessed the plaintiff from the suit land for which proceedings were held before the Executive Magistrate. The plaintiff did not get any relief and so by filing the present suit made a prayer for decree declaring his right, title and interest over the suit land described in schedule B to the plaint and for recovery of khas possession by evicting the defendant etc.

3. On being summoned, the defendant appeared and in paragraph 8 of the written statement admitted that his mother Jiumala Kalita was the actual owner of the plot of land measuring 4K 1L covered by the suit dag and patta. But having made admission that his mother has right, title and interest to the suit dag and patta denied execution of the sale deed in favour of the plaintiff and prayed that the suit of the plaintiff be dismissed with cost.

4. The learned trial court thereupon framed 6 issues which are quoted below :-

1. Whether there is cause of action for the suit?

2. Whether the suit is maintainable?

3. Whether the suit is barred by limitation?

4. Whether registered sale deed No. 6257 dated 28.12.90 was executed in favour of the plaintiff by Late Jiumala Kalita?

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

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

5. In course of trial, plaintiff examined 5 witnesses including himself and exhibited as many as 4 documents as Ext. 1 to 4. The defendants, on the other hand, examined 2 witnesses including the defendant No. 1 and exhibited 3 documents as Ext. Ka, Kha and Ga. Learned trial court considered the pleadings and evidence of both sides and after hearing them, held that there is cause of action for the suit and that the suit is maintainable as no argument was put forward by the defendant in regard to maintainability of the suit. The suit was held to be not barred by limitation and by deciding issues No. 4 and 5 together, learned trial court held that the plaintiff acquired right, title and interest with respect to the suit land on the basis of Ext. 1 and that possession was also handed over to him. The learned trial court held that defendant No. 1 examining himself as DW 1 did not deny sale by his mother Jiumala Kalita in favour of the plaintiff and thus, taking into consideration all these aspects of the matter decided issues No. 4 and 5 in favour of the plaintiff. Consequently, the suit of the plaintiff for recovery of khas possession was also decreed. This judgment and decree passed on 22.09.2003 was challenged by the defendant No. 1 before the learned first appellate court vide title appeal No. 71/2003 and the learned first appellate court by his judgment and decree dated 13.09.2004 allowed the appeal, setting aside the judgment and decre