Manojit Bhuyan, J.

Heard Mr. TJ Mahanta, learned Senior counsel assisted by Mr. D Mahanta, learned counsel for the appellants. Also heard Mr. B Banerjee, learned Senior counsel assisted by Mr. DF Ahmed, learned counsel for the respondents.

2. The dispute is with regard to possession over a parcel of land which is admittedly a grazing reserved land, which is so identified from the revenue records. The respondent/plaintiff alleging dispossession brought Title Suit No.19/1995 for a decree of eviction of the defendants from the suit land by delivering khas possession as well as for permanent injunction. The defendants having contested the suit also filed written statement denying the averments made in the plaint with a further pleading that the suit was bad for non-joinder of necessary party, in that, the land being a grazing reserved land, the Government ought to have been impleaded as a party defendant.

3. The Trial Court framed as many as six issues out of which issue Nos.2 and 3 pertaining to non-joinder of necessary party and plaintiff's right, title and interest over the suit land were given primacy. The Trial Court having considered the depositions of witnesses on either side as well as the documentary evidence produced by the respondent/plaintiff dismissed the suit in view of the discussion in issue Nos.2 and 3.

4. On appeal, i.e. Title Appeal No.3/2001, the judgment and decree of the Trial Court was set aside by allowing the appeal and Title Suit No.19/1995 was decreed for khas possession by evicting the appellants/defendants with further declaration of possession in favour of the respondent/plaintiff. The First Appellate Court held that in so far as the issue No.2 is concerned, the Government is not a necessary party and respondent/plaintiff has a comparatively better right to protect the property and to continue in possession until evicted by the Government. In so far as the findings on issue No.3 by the Trial Court is concerned, the First Appellate Court held that same had been unnecessarily framed as the respondent/plaintiff had not claimed right, title and interest over the suit land and the suit was only a case of possession and governed under Section 5 of the Specific Relief Act, 1963 (for short 'the Act'). The First Appellate Court on the basis of the depositions of PWs 1, 2 and 3 found that the respondent/plaintiff had been in possession until he was dispossessed by the appellants/defendants. The First Appellate Court proceeded to try the appeal on the premises that the case is governed by Section 5 of the Act and despite holding that no proper issue had been framed by the Trial Court with regard to plaintiff's possession over the suit land, discussed the fact of possession without framing any additional issue in that regard.

5. The second appeal filed by Bupai Urang and others (defendants in Title Suit No.19/1995) against the judgment and decree of the First Appellate Court, was admitted for hearing by order dated 16.3.2004 on the following substantial questions of law;

"(1) Whether Section 5 of the Specific Relief Act gives any substantive right to recover possession of the property by filing a suit and if not whether the impugned judgment and decree dated 23.12.2003 passed by the learned Civil Judge (Sr. Divn), Golaghat in Title Appeal No.3/2001 is maintainable?

(2) Whether on the face of the findings of the learned first appellate court, any appeal against the decree passed in a suit for recovery of possession and injunction under Section 5 of the Specific Relief Act, could have been entertained at all by the learned first appellate court in the light of the provisions of law contained in Section 6 of the Specific Relief Act?

(3) Whether the finding of the learned lower appellate court about the prior possession of the suit land delivering the possessory title over the suit land by the plaintiff on the basis of the said possession was based on valid and legal evidence?

(4) Any other substantial que