The main legal point established in the judgment is the interpretation of the transaction between the parties and the evidence presented in relation to the partition and possession of the suit land.

1. This Second Appeal is directed against the concurrent findings of fact arrived at by two Courts below. The learned trial Court decreed Title Suit No.53/1989 declaring jote right of the plaintiff over the suit land and for recovery of khas possession by evicting the defendant No.1. This trial Court judgment and decree dated 05.12.1999 has been upheld by the learned First Appellate Court in Title Appeal No.9/2000 by judgment and decree dated 18.05.2004. These two judgments have been called in question in the present Second Appeal on behalf of the defendants.

2. The aforesaid Title Suit No.53/1989 was instituted by Ingenjao Singha, predecessor of the present respondents, in the Court of learned Civil Judge (Junior Division) No.2, Hailakandi stating that the suit land measuring 5 kathas covered by Dag No.169 of 2nd R.S. Patta No.87 along with other land was held by his father Suro Singha on assertion of jote right under the landlord Narendra Singha. After his death the immoveable property left behind by Suro Singha was amicably partitioned among his three sons, namely, Babu Singha, Indra Kumar Singha and Ingenjao Singha and three daughters relinquished their share in favour of the brothers. The defendant No.1 subsequently forcefully took over possession of the suit land on 20.12.1992 during absence of the plaintiff and refused to vacate the same even after the plaintiff had requested him to do so. Under such circumstances institution of the suit became necessary for declaration of jote right of the plaintiff over the suit land and for recovery of khas possession by evicting the defendant No.1 Indra Kumar Singha.

3. On being summoned the defendant No.1, Indra Kumar Singha, appeared and submitted written statement denying the case of the plaintiff. According to him, the eldest son of Suro Singha, viz., Babu Singha, was given a separate share of 3 poa land and the suit land was jointly held by Ingenjao Singha and Indra Kumar Singha i.e. the plaintiff and the defendant No.1. The defendant No.1 never dispossessed the plaintiff from the suit land and both of them having inherited the jote right of Suro Singha there was no question of declaration of exclusive jote right of the plaintiff or for eviction of the defendant No.1 from the suit land. He further claimed to have purchased title of the suit land from Birendra Singha, son of Narendra Singha, which he subsequently sold to his two sons, namely, defendant Nos.15 and 16, by registered deed of transfer in the year 1992 and 1993. The suit land measuring 6 kathas was thus the property of the defendant No.1 and the plaintiff did not have any right, title and interest over it. With these averments the defendant No.1 prayed that the suit of the plaintiff be dismissed.

4. The defendant Nos.15 and 16, who are none other than the sons of the defendant No.1, filed a similar written statement claiming title over the suit land on the basis of purchase from their father in the year 1992-1993.

5. The learned trial Court on the basis of the aforesaid pleadings of the parties framed following 10 issues :-

“(i) Is there any cause of action?

(ii) Is the suit maintainable in its present form?

(iii) Is the suit barred by limitation?

(iv) Is the suit barred by waiver, estoppels and acquiescence?

(v) Is the suit bad for mis-jonder and non-joinder of parties?

(vi) Is the suit land an ancestral property?

(vii) Is there any forcible dispossession of the suit land?

(viii) I the suit land owned by Sri Narendra Singha as alleged by the plaintiff ?

(ix) Whether the suit land is maintainable without proper and effective partition of the land of all pattas of predecessor of the parties?

(x) To what relief, the plaintiff is entitled?”

6. In course of trial plaintiff examined three witnesses including himself while the defendant No.1 also examined three witnesses including himself. All the witnesses were cross-examined by the respective other sides. The learned trial Court thereafter passed the impugned judgment dated 15.1