JUDGMENT :

Sanjay Kumar Medhi, J.

Heard Sri R. Sarma, learned counsel for the applicant as well as Sri S. Dey, learned counsel for the legal representative representing the legal heirs of respondent No. 1 who have been duly substituted vide order dated 11.01.2019, passed in I.A. (C)/1695/2018 by this Court. Also heard Sri G. Bordoloi, learned Government Advocate for the proforma respondents.

2. The instant appeal has been preferred against the judgment and decree dated 07.09.2007 passed by the learned Civil Judge, Karimganj in Title Appeal No. 38/2006, affirming the judgment and decree dated 31.03.2006 passed by the learned Civil Judge (Junior Division) No. 1, Karimganj in Title Suit No. 75/2005.

3. The brief facts of the case may be narrated as follows.

a. The applicant was the defendant in the suit filed for declaration of rights, title, interest, affirmation of possession and permanent injunction. It is the case of the plaintiff that suit land was originally owned by one Sri Kalika Prasad Das Purkayastha and vide the registered sale deed No. 1203 of 1929 dated 08.04.1929, Sri Jogendra Das had purchased the suit land. On the death of Sri Jogendra Das, the suit land (Ext. No. 1) was inherited by his legal heirs Jyotish Chandra Das, who is the father of the plaintiff. The said land came under the ownership of his wife and three sons including the plaintiff vide a Deed of Will (Ext. 2). In the amicable partition, the suit land fell within the share of the plaintiff. The K.V.S was trying to encroach on the part of the suit land on the North-Western part and accordingly, the said suit was instituted. The same was contested by the present appellant as defendant by filing a written statement wherein it was claimed that the suit land was a part of the land settled with the organization for purpose of constructing of permanent building of K.V. at Karimganj. The settlement order was dated 03.08.2003.

b. The learned Court of the Civil Judge (Jr. Division) vide the judgment and decree dated 31.03.2006 had decreed the suit in favour of the plaintiff. It may be mention that both the plaintiff and the defendant had adduced evidence through one PW each. Amongst the various issues framed, issue No. 3 would be relevant in this case. The said issue was with regard to plaintiff's land holder right and possession in respect of suit land. The learned trail Court had held that the pleadings made in the plaint were not seen to have been denied by the defendant and from the exhibits, it was evident that the suit land in question was owned by the plaintiff whose title has been traced back to Kalika Prasad Das Purkayastha, the original owner of the land who had sold the land to the predecessor in interest of the plaintiff vide the Exhibit 1 Sale Deed.

c. Against the aforesaid judgment and decree, the present appellant had preferred the first appeal before the learned Court of Civil Judge, Karimganj in Title Appeal No. 38/2006. It may be mentioned that State of Assam had also preferred Title Appeal No. 43/2006 and both the appeal were heard together.

d. The learned First Appellate Court after discussing the pleadings and the materials exhibits had formulated certain points for determination including point No. 3 which reads as follows;

"3. Whether the suit land attract the land described in the sale deed bide Ext. or plaintiff encroached it?"

e. The learned First Appellate Court had taken into consideration the deposition of the DW-1 which was made on his cross examination that the K.V.S do not have any claim over the land beyond the boundary wall and pillars of the school and admittedly the suit land was out of the said boundary wall and pillars of the K.V.S. Based upon the aforesaid discussion, the appeal was dismissed vide the judgment and decree dated 05.09.2007, affirming the judgment and decree of the trial Court.

f. Aggrieved, the present appeal has been preferred.

4. This Court while admitting the appeal had formulated the following substantial question of