1. Heard Mr. A. Barkataki learned counsel for the appellant and Mr. A. C. Sarma, learned Senior counsel assisted by Mr. G. Bharadwaj learned counsel for the respondent.

2. The present plaintiff respondent filed Title Suit No. 6/2002 in the court of learned Civil Judge(Sr.Division), Barpeta against the main defendants appellants for declaration of right, title and interest over the land measuring 8 lechas within dag No. 202 of KP Patta No. 23 at Pathsala Town which is the suit land. Umesh Ch. Deva Choudhury, the predecessor-in interest of the defendants appellants and the present proforma respondent No.2 was settled with land measuring 2 bighas 2 kathas 9 lechas covered by dag Nos. 202,204 and 1307 of KP Patta No. 23 of Pathsala Town. The said proforma respondent No.2 sold land measuring 8 lechas from the total land measuring 2 kathas covered by dag No. 202 vide registered sale deed No. 99/99 dated 1.3.1999 and delivered possession of the same to the plaintiff respondent No. 1. A ‘chali’ was constructed upon the said 8 lechas of land which is the suit land. The defendants appellants on 7.4.2001 broke down the C. I. Sheet ‘chali’ with intimation that they wanted to carry out construction over the suit land with a further request to take away the C.I.Sheet and other building materials. Accordingly, he sought for the reliefs as hereinabove stated.

3. The defendants appellants filed their joint written statement taking the stand that Umesh Ch. Deva Choudhury had landed property as far as 17 bighas covered by several patta. Out of the said land amongst various dags, Umesh Ch. Deva Choudhury sold 16 lechas of land to one Sailen Talukdar from dag No. 202 and 14 and ½ lechas land to Basanta Kalita. Umesh Ch. Deva Choudhury died on 1.9.1978 leaving his wife and four sons i.e. the defendants appellants and proforma respondent No. 2. Each of the legal heirs are entitled to 16 4/5 lechas of land covered by dag No. 202. As late Umesh Ch.Deva Choudhury left 17 bighas of land, the proforma respondent No. 2 was entitled to 3 bighas 2 kathas of land by right of inheritance covered by various dag numbers. But the said proforma respondent No.2 sold 4 bighas 6 4/5 lechas of land in excess of his share including the one in dag No. 202 to Sashimohan Sarma by registered sale deed No. 1736/80 dated 30.5.1980 and delivered possession of the land. In the said sale deed the proforma respondent No. 2 sold 17 lechas of land covered by dag no. 202 of KP Patta No. 23 with specific boundaries although proforma defendant No.2 was entitled to 16 4/5 lechas of land only. The proforma respondent No. 2 sold his share from the western side of dag No. 202. On and the eastern part, the defendants appellants are in possession of the land covered by dag No. 202. The defendants appellants never disputed the land sold to Sashimohan Sarma and they are in exclusive possession of 4 kathas 4 lechas of land which remained after sale of land by Umesh Ch. Deva Choudhury as such there subsists no title of proforma respondent No.2 over any portion of land of dag No. 202. The plaintiff respondent No. 1 cannot acquire right, title and interest over the suit land. Thus the defendants appellants sought for dismissal of the suit.

4. The trial court framed the following issues:

“1. Whether there is cause of action for the suit?

2. Whether the suit is bad for non-joinder of necessary parties ?

3. Whether the suit is barred by Limitation?

4. Whether proforma defendant No.1 sold 4 bighas 63/5 lechas of land in excess of his share including his share in dag No. 202 to late Sashimohan Sarma by registered deed No. 1768/80 dtd. 30.5.80 and delivered possession?

5. Whether the proforma defendant has no saleable right, title and interest and possession in land of dag No. 202 after 30.5.80?

6. Whether the sale deed No. 99/99 executed by proforma defendant in favour of plaintiff is illegal, inoperative and void and plaintiff cannot acquire any right, title and interest upon the suit land by that