Prasanta Kumar Deka, J.

Heard Mr. B. Banerjee, learned Senior Counsel assisted by Mr. K. Bhattacharyya, learned counsel for the appellant. Also heard Mr. D. Mozumdar, learned Senior Counsel assisted by Mr. K.K. Parasar, learned counsel for the respondent.

2. Originally Title Suit No. 392/2004 (old), 1049/2006 (new) was filed by one Rumi Hazarika, the wife of the present plaintiff/ appellant who was substituted on the death of the said Rumi Hazarika against the present defendant/ respondent. Late Ratneswar Hazarika, the father of the original plaintiff and the defendant/ respondent occupied the suit land measuring about 2K 10L covered by Dag No. 119, 131 of KP Patta No. 92 of village Sahar Guwahati since 1940 as an occupancy tenant and upon abolition of the tenancy, Ratneswar Hazarika became the owner. Ratneswar Hazarika constructed a residential house over the suit land which was repaired and renovated later on. On the death of Ratneswar Hazarika, the original plaintiff Rumi Hazarika, the defendant/ respondent Babul Hazarika and another sister Smti. Debika Rani Hazarika inherited the suit property. Dispute arose with the defendant/ respondent and as a consequence, the said property was divided into two equal shares. One of the shares was being occupied by the defendant/ respondent and the other one by the original plaintiff, Rumi Hazarika and her mother (Bhubaneswari Hazarika). The mother died prior to the institution of the suit and as such one of the shares was under the occupation of the said Rumi Hazarika. After the death of the mother, defendant/ respondent started obstructing Rumi Hazarika in possessing the suit land. But she continued her possession after her marriage with Dipu Kumar Das (the substituted plaintiff/ appellant). Owing to continuous obstruction and disturbance by her brother, the original plaintiff had to institute a suit being Title Suit No. 222/2002 for permanent injunction against the defendant/respondent. The said suit though dismissed, but it was held that the suit land left behind by Ratneswar Hazarika was not partitioned between his legal heirs and further held that the original plaintiff i.e. Rumi Hazarika was one of the co-sharers of the suit land. As such, the original plaintiff instituted the suit for partition of the suit land.

3. The defendant/respondent appeared and contested the suit by filing written statement and counter claim raising the defence that the suit is barred by res judicata in view of earlier Title Suit No. 222/2002. It is admitted that the original plaintiff is her sister and the suit land belonged to their father Ratneswar Hazarika. Denying the claim of the original plaintiff, the defendant/ respondent pleaded that he is the exclusive owner of the suit land and the plaintiff is trying to make forged document and as such, by preferring the counter claim he prayed for declaration of his title and the eviction of the plaintiff from the suit land.

4. Original plaintiff filed written statement against the counter claim raising the plea of maintainability of the same and also denied the exclusive ownership of the defendant/ respondent over the suit land.

5. During the trial before the court of learned Munsiff No. 1, Rumi Hazarika, the original plaintiff, the sister of the defendant/ respondent died following which her husband, the present plaintiff/appellant was substituted and continued the proceeding.

6. On the basis of the pleadings, the learned trial court framed the following issues :-

1. Whether the suit is maintainable in law?

2. Whether the suit is barred by the principle of res-judicata?

3. Whether the plaintiff is entitled to get the decree for partition?

7. The said suit was once dismissed vide judgment and decree dated 10.02.2009 and plaintiff/appellant having preferred an appeal being Title Appeal No. 27/2009, the said judgment was set aside and the suit was remanded with a direction to frame an additional issue which was later on framed by the learned trial cour