MIR ALFAZ ALI, J.

1. This second appeal by the defendant is filed against the judgment and decree dated 22.06.2016 passed in Title Appeal No. 5/2013, whereby the learned Civil Judge, Dhubri, dismissed the appeal filed by the defendant and upheld the judgment and decree passed by the learned Munsiff in Title Suit No. 425/2007.

2. The facts leading to the present second appeal, may briefly be stated thus. The respondent herein, as plaintiff instituted a suit for declaration of right, title and interest, cancellation of Sale Deeds No. 1281 and 1282 dated 31.08.1998, permanent injunction and recovery of possession by evicting the defendants.

3. The pleaded case of the plaintiffs was that the predecessor of the plaintiffs, Late Khoibar Ali was the owner of the suit land by right of purchase through auction sale. Later on, a plot of land measuring 1 Katha 4 Lecha was acquired by the Government. After the death of Khoibar Ali in 1997, the plaintiffs approached the revenue authority for mutation of their name. However, the Settlement Officer, Dhubri rejected the prayer of the petitioner and granted mutation in favour of the defendants. Taking advantage of the said mutation, the defendants No. 1 to 3 sold 4 bigha, 1 katha 8 lechas of land to the defendants No. 4 to 7 by registered sale deed No. 1281 and 1282 dated 31.08.1998. Thereafter the defendants also occupied the remaining portion of the suit land illegally, forcing the plaintiffs to bring the suit seeking the reliefs as indicated above.

4. The pleaded case of the defendants was that they have been possessing the suit land for long time and also got their names mutated. According to the defendants, the plaintiffs or their predecessor never possessed the suit land nor they have any right or title over the suit land.

5. On the basis of the above pleading, learned Munsiff framed the following issues:

(1) Whether the suit is maintainable in its present form?

(2) Whether the suit is barred by limitation?

(3) Whether there is a cause of action for this suit?

(4) Whether the plaintiffs were in possession of the suit land?

(5) Whether defendant no. 1 and 2 have any right to alienate the suit land by way of sale to the other defendants?

(6) Whether the plaintiffs have right, title and interest over the suit land?

(7) Whether the plaintiff is entitled to the reliefs as claimed for?

(8) To what other relief or reliefs the plaintiff is entitled to?

6. Both the parties adduced evidence oral as well as documentary and the learned Munsiff, after hearing the parties decreed the suit of the plaintiffs. Feeling aggrieved, the defendants preferred the first appeal before the learned Civil Judge. Learned Civil Judge, by the impugned judgment and decree upheld the judgment and decree of the learned Munsiff and dismissed the appeal. Learned Civil Judge while allowing the appeal modified the original decree granting the relief of cancellation of the sale deed No. 1281 and 1282.

7. Aggrieved by the judgment and decree of the first appellate court, the defendants preferred the instant appeal, which was admitted to be heard on the following substantial question of law:

“Whether the learned first appellate court modified the decree passed by the learned Trial Court granting cancellation of a sale deed in excess of the jurisdiction vested in Section 96 of the Code of Civil Procedure, 1908, in absence of any cross objection required to be filed by the respondents/plaintiffs under Order XLI Rule 22 of the Code of Civil Procedure, 1908?”

8. Learned counsel for the appellants, Ms. P. Bhattacharjee placing reliance on the decisions of the Apex Court in Hardevinder Singh vs. Paramjit Singh, (2013) 9 SCC 261 and Ravinder Kumar Sharma vs. State of Assam, AIR 1999 SC 3571 submitted that in absence of cross objection filed by the appellant/plaintiff, learned appellate court ought not to have modified the decree, granting the relief of cancellation of sale deeds. It was submitted by the learned counsel, that when the learned