The Commissioner's report was admissible as evidence, and the court found the suit maintainable, established cause of action, and ruled that it was not barred by limitation. The court also held that the suit was not bad for non-joinder of necessary parties. The court found that the respondents had right, title, and interest over a portion of the land and that the appellants were not entitled to a decree for confirmation of possession. The counter-claim was held to be not maintainable due to the lack of evidence and non-payment of court fees.

1. Heard Mr. N. Alam, learned counsel for the appellant. Also heard Mr. N. Dutta, learned senior counsel, assisted by Mr. M.H. Mazarbhuiyan, learned counsel for the respondents.

2. This appeal under Section 96 CPC is directed against the judgment and decree dated 18.09.2007 passed by the Civil Judge (Senior Division) No. 3, Kamrup, Guwahati in T.S. No. 324/2003, thereby decreeing the suit with cost and dismissing the counter claim.

3. It would pertinent to mention that one Md. Sharif Ali, son of Late Fulsha Sk. was arrayed as defendant No. 3 in the suit. However, the said defendant No. 3 has not been arrayed as a party in this appeal. Therefore, reference to the appellants in reference to the suit would deem to include the defendant No. 3, but reference to the appellants in this appeal would only include the appellants and not the defendant No. 3.

4. As per the plaint, the case of the respondents as plaintiffs, in brief, is that their mother Late Gulijan Musalmani (name is found to be spelt differently at various places in pleadings, evidence and judgment) was the original owner of a plot of land measuring 1 katha-16 lechas (land measurement of “Bigha, Katha and lechas” are hereinafter abbreviated as “B-K-L” for short), covered by Dag No. 240 of K.P. Patta No. 5 of Village Garpandu, which is more fully described in the schedule of the plaint. After her death, the respondents inherited the said land. It was projected that the total land in Dag No. 214 of K.P. Patta No. 5 was 3K-16L. Out of that land, the respondents had sold 1K-6L land to one Sri Bowarilal Jain in the year 1985 by registered sale-deed and his name was mutated vide Mutation Case No. 1202/85-86. By unregistered sale-deed, the respondents also sold land measuring 14L of the said Dag and Patta to Sri Champat Lal Khater and Novaratan Khater, which was also mutated in their names. It was projected that a small portion of the land was acquired by PWD for widening of road and the balance land remained in possession of the respondents. In the year 1986, on an application made the defendant No. 3 in the suit, namely, Md. Sharif Ali, a proceeding under section 145 Cr.P.C. being Case No. 206M/1986, was drawn-up by order dated 13.03.1986, passed by the Executive Magistrate, thereby both parties were prohibited from entering the disputed land. Thereafter, the appellants No. 1 and 2 had instituted T.S. No. 30/2002 and claimed their right, title, interest over a plot of land measuring 2K-3L of Dag No. 238, of Patta No. 16 of village Garpandu under Mouza Jalukbari. It was projected that after the respondents had prayed for local inspection of the disputed land, the appellants remained absent in the proceeding and the said T.S. 30/2002 was dismissed for non-prosecution by the learned Civil Judge (Junior Division) No. 2, Guwahati. However, by virtue of an interim status quo order passed by the said learned Court in the connected injunction petition, the appellants had illegally had made some construction on the suit land without any permission from the Guwahati Municipal Corporation or Guwahati Metropolitan Development Authority. It was projected that against the illegal construction, the respondents had complained before the Chief Executive Officer, GMDA, who called for a report from the Settlement Officer, Guwahati. In the report dated 22.07.2002, the Settlement Officer reported that the appellants had constructed house in the suit land but no action was taken. Hence, the present T.S. No. 324/2003 was filed, containing the following prayers:-

(a) For a decree declaring right, title, interest of the respondents over the land describe in the schedule of the plaint.

(b) For eviction of the appellants and all others living under them by demolishing the sheds and houses constructed by them over the suit land and for delivery of vacant and khas possession of the suit land to the respondents through the process of the Court.

(c) For survey and demarcation of the suit lan