The central legal point established in the judgment is the requirement to substitute the legal heirs of a deceased party to avoid nullity of the judgment and decree.

Heard Mr. T.J. Mahanta, learned senior counsel, assisted by Ms. P. Bhattacharyya, learned counsel, appearing for the appellants/defendants and Mr. R.K. Jain, learned counsel, appearing for the respondents/plaintiffs.

2. One Gendhala Bora was the owner of land covered by two periodic pattas i.e. Periodic Patta No. 22 covering land measuring more or less 20 Bighas and other one, Periodic Patta No. 12 covering land more or less 9 Bighas 3 kathas. Gendhala Bora died leaving behind his three sons, Kanakeswar Bora, Akon Bora and Soneswar Bora. Soneswar Bora died leaving behind his son, the original defendant No. 4, Ramani Ranjan Bora and his wife, Biroja Bora. On the other hand, Kanakeswar Bora died leaving behind the defendant No. 2 Haren Bora, defendant No. 3, Dineswar Bora and defendant No. 5 Sri Deben Bora. Akon Bora died leaving behind his daughters Smti Bogi Bora, the plaintiff No. 1, Smti Junu Bora, the plaintiff No. 2 and rest of the plaintiff Nos. 3 to 8, are the sons and daughters of Junu Bora including grandchildren of Akon Bora.

3. The plaintiffs/respondents’ case is that on the death of Akon Bora, they are entitled to one-third share of the properties per stripe, as the legal heirs of late Akon Bora out of the total land left by Gendhala. On the basis of the said claim, they preferred a revenue partition case, being Revenue Partition Case No. 64/1985, which was accordingly granted by the learned Additional District Magistrate, Jorhat. Accordingly, a separate partition patta was curved out from the original Patta No. 22 covering land measuring 15 (fifteen) Bighas, 3 (three) kathas 3 (three) lechas from the said patta. The said partition patta was issued under the Periodic Patta No. 570 of Village- Dohotia Barua Gaon, Mouza– Khangia in the District of Jorhat, Assam. The present defendants/appellants refused to accept the said partition and even on issuance of legal notices they refused to vacate the land upon which they are possessing, purportedly being the share of the plaintiffs/respondents. Hence, the suit was filed for the reliefs for declaration of the right, title and interest, recovery of khash possession and injunction.

4. The defendants/appellants filed their joint written statement thereby taking the plea that during the life time of Kanakeswar Bora, Akon Bora and Soneswar Bora, an amicable settlement took place amongst them, and on the basis of the said settlement, Akon Bora was settled with the land covered by the Periodic Patta No. 12 and both Kanakeswar Bora and Soneswar Bora were settled with the total land covered by Periodic Patta No. 22 so that both Kanakeswar Bora and Soneswar Bora could divide their shares between them. It is also pleaded that the original periodic Patta No. 22 consists of 22 Bighas of land and subsequently, Kanakeswar Bora and Soneswar Bora by way of purchase and exchange got the land extended to 48 Bighas. Accordingly, as there was a family settlement during the life time of the respective predecessors-in-interest of the parties to the suit, as such the plaintiffs/respondents, being the legal heirs of Akon Bora are not entitled to any share of the land covered by the Periodic Patta No. 22. Hence, the defendants prayed for dismissal of the suit.

5. On the basis of the pleadings of the parties, the trial court framed the following issues.

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

2. Whether plaintiffs have acquired any valid right and title to the suit land?

3. Whether there was any valid partition and the suit property falls to the share of the plaintiffs?

4. To what reliefs parties are entitled?

6. During the course of evidence, the plaintiffs examined 3 (three) witnesses and exhibited Ext. Nos. 1 and 2, the certified copies of the Jamabandi showing various entries including their names, being mutated. The defendants examined 3 (three) witnesses. However, no exhibits were put on record by the said defendants. The trial court after hearing the parti