JUDGMENT :

Mir Alfaz Ali, J.

This regular second appeal is by the defendant against the judgment and decree passed by learned Civil Judge, Barpeta in Title Appeal No.11/2008, whereby the learned first appellate court dismissed the appeal and decreed the suit of the plaintiffs concurring with the findings of the learned trial court.

2. The plaintiffs filed a suit (T.S. No. 65/1989) for declaration of right, title, and interest over the suit land and recovery of possession. The case of the plaintiffs was that the suit land measuring 16 Bighas 1 Katha 15 Lechas originally belonged to Mofizuddin @ Mofiz Sk., who died in the year 1981 leaving the plaintiffs and the proforma defendants as his legal heirs. Since Mofizuddin had no issue and his wife also died, the property left by Mofizuddin devolved upon the plaintiffs and the proforma defendants, who are son and daughter of the younger brother of late Mofizuddin. As Mofizuddin had no issue, he kept the defendant No. 1 in his house as servant to cultivate his land. Mofizuddin also gifted 5 Bighas of land to said defendant No. 1 and allowed him to stay in his house with his wife. Defendant No. 2 was also not the daughter of late Mofizuddin. Due to poor financial condition of the parents of the defendant No. 2, Mofizuddin brought her to his house as domestic help. Mofizuddin also performed the marriage of the defendant No. 2 and gifted her 2 Bighas of land. After death of Mofizuddin, plaintiffs took over possession of the suit property and allowed the defendant No. 1 to cultivate the suit land on remuneration basis and accordingly the defendant No. 1 cultivated the land and continued to gave the crops to plaintiffs till 1988. However, in the year 1989 the defendant No. 1 denied to give the corps to the plaintiffs and he also collusively recorded his name in the revenue records in respect of 7 Bighas 2 Kathas 13 Lechas of land. As the defendant No. 1 refused to vacate the suit land, the plaintiffs filed the suit for declaration of right, title and interest and recovery of possession.

3. The pleaded case of the defendants was that the defendants were the son and daughter of late Mofizuddin and after death of Mofizuddin they inherited the suit land and that the plaintiffs had no right, title and interest over the suit land. On the basis of the above pleadings the learned trial court conducted the trial and decreed the suit of the plaintiffs. Aggrieved by the said judgment and decree, the defendants preferred an appeal and the learned first appellate court having set aside the judgment and decree of the learned trial court, remanded the suit for fresh trial. Upon remand, learned trial court framed the following issues :-

1. Is there any cause of action for the suit ?

2. Is the suit is maintainable in its present form and manner ?

3. Whether the plaintiff has right, title and interest over the suit land ?

4. Whether the defendants are the legal heirs of late Mofiz Uddin Sheikh, the original owner of the suit land ?

5. Whether the mutation of the schedule II land in the name of the defendant no. 1 is illegal and void in law ?

6. Whether the plaintiff is entitled to remove the name of the defendants from the revenue records ?

7. To what relief’s the parties are entitled?

4. Both the parties adduced evidence and after hearing the parties, learned trial court again decreed the suit of the plaintiffs. Aggrieved by and dissatisfied with the judgment of the learned first appellate court, the defendant/appellant preferred the instant second appeal, which was admitted to be heard on the following substantial questions of law :

"1. Whether the "burden of proof" which lies upon the plaintiffs can be shifted to the defendants without discharging their burden by the plaintiffs and whether the findings of the learned courts below shifting the burden upon the defendants is substantial in the eye of law ?

2. Whether once an issue is framed for determination by the trial court, can the same be deleted without affording