Prasanta Kumar Deka, J.

1. Heard Ms. B. Devi, learned counsel appearing for the appellants/defendants and Mr. SK Ghosh, learned counsel, appearing for the respondents/plaintiffs. The present appellants are the defendants in T.S. No. 9/2003 in the court of the learned Civil Judge (Junior Division), No. 1, Hailakandi, which was filed by the present plaintiffs/respondents. The case of the plaintiffs/respondents is that the plaintiffs and the proforma defendant No. 111 in T.S. No. 9/03 instituted T.S. No. 97/1970 in the court of the learned Munsiff, Hailakandi against the present defendants/appellants with a prayer for declaration of the right, title and interest and khas possession in respect of the suit land in dispute in T.S. No. 9/2003. During the pendency of the suit the proforma defendant No. 111 sold out his share of interest to the plaintiff/respondent Nos. 1 and 2. The said T.S. No. 97/1970 was decreed by the learned trial court and on appeal the said decree was confirmed by the first appellate court. Second Appeal No. 110/78 was preferred before this court wherein the judgment and decree passed by the trial court in T.S. No. 97/70 and affirmed by the first appellate court was upheld by this court with a modification declaring the right, title and interest over the suit land in favour of the present plaintiffs/respondents with a further direction that the possession of the plaintiffs/respondents are ejmali (joint) alongwith other co-pattadars (co-owners) including the defendants/appellants in the said T.S. No. 97/70.

2. The plaintiffs/appellants got the said decree executed vide execution case No. 13/99. Later on the plaintiffs/respondents applied for partition of the decretal land before the Collector, Hailakandi vide Misc. case No. 5/2002 which was rejected. Thereafter the present T.S. No. 9/03 was filed by the present plaintiffs/respondents for partition of the suit land.

3. Amongst the various defendants in TS No. 9/03, the defendant Nos. 1 to 44 contested the suit by filing a joint written statement. In the said written statement, it was pleaded that the suit was barred under the principles of res-judicata and further pleading that the predecessor-in- interests of the present defendants/appellants purchased an area of 4 Bigha 13 Kathas 15 Chataks 10 Gandas of land in the suit Patta and Dag including the suit land on 12.6.1970 from one Siratun Bibi, a relative of the plaintiffs/respondents and they have been possessing the same for the last 33 years with the knowledge of the plaintiffs/respondents. The defendants/appellants admitted that the plaintiffs/respondents obtained the decree in respect of the suit land in TS No. 97/70 and the second appeal No. 110/1978 without admitting possession of the plaintiffs/respondents over the suit land. In fact, in the said Second Appeal No. 110/78 the High Court held that instead of relief of recovery of khas possession by the plaintiffs/respondents, their joint possession was declared alongwith the defendants/appellants. There being no possession of the plaintiffs/respondents over the suit land for the prescribed period of 12 years and that too after passing of the judgment and decree by the High Court on 2.3.1989, the suit was barred by limitation and as such the defendants/appellants sought for dismissal of the suit On the basis of the pleadings, following issues were framed.

(1) Is there any cause of action for this suit?

(2) Whether the suit is barred by the Principles of res-judicata?

(3) Whether the suit is barred by law of limitation?

(4) Whether the plaintiffs have any title over the suit land?

(5) Whether the plaintiffs are entitled to a decree/relief(s) as prayed for?

4. The plaintiff/respondent No. 1 examined himself as the sole witness as PW 1 and also exhibited various exhibits in support of the case. On the other hand, the defendants/appellants did not adduce any evidence. The trial court decreed the suit in favour of the plaintiffs/respondents vide judgment and dec