The main legal point established in the judgment is that the nature of tenancy created by a sale deed and the right of survivorship cannot be examined as substantial questions of law in the absence of relevant pleadings.

JUDGMENT

Kalyan Rai Surana, J. - Heard Mr. P.K. Roy, learned counsel for the appellant, who has made his submissions for admission of the appeal under Order XLI, Rule 11 CPC.

2. By this appeal under section 100 CPC, the appellant has assailed the first appellate judgment and decree dated 10.09.2018, passed by the learned District Judge, Karimganj in Title Appeal No. 5/2012, by which the appeal was allowed by decreeing the suit and thereby reversing the judgment and decree dated 23.08.2004, passed by the Court of learned Civil Judge (Junior Division) No.1, Karimganj (as it was then), in T.S. No. 103/1983. The appellant herein was arrayed as the defendant in the suit.

3. The predecessor- in- interest of the respondents had filed a suit for confirmation of possession upon partition of the 'saham' land on the basis of title acquired through land holding right. In the plaint, it was projected that vide registered sale deed dated 08.04.1981, the predecessor- in- interest of the respondents and the appellant had purchased the suit land from S.K. Hasoi @ Hasoi Ali, who was holding jote right and accordingly, he because owner of 50% (eight anna) of that land. It was further projected that the appellant did not partition the suit land and did not give the predecessor- in- interest of the respondents his share, as such, the suit was instituted.

4. The appellant- defendant had contested the suit by filing written statement, wherein apart from taking usual defence, it was denied that the predecessor- in- interest of the respondents had received possession of the suit land or that he had been enjoying the suit land jointly with the appellant or that he was entitled to 50% share in the land. The appellant claimed that he had purchased the suit land and paid the sale consideration of Rs.3,000/- through one Kamini Kumar Debnath, who had appeared before the SubRegistrar's office and had the sale deed executed and registered in favour of the appellant. It was projected that the appellant was a government employee and could not appear before the Sub- Registrar's Office for execution and registration of the sale deed and did not obtain copy from the said office. On receipt of the summons of the suit, he had made enquiry and came to know that the predecessor- in- interest of the respondents in collusion with Dhirendra Kumar Das, a deed writer and without letting him know anything, had the sale deed registered in his name in collusion with the vendor. It is claimed that the possession of the suit land was handed over to the appellant through Kamini Kumar Debnath. It was pleaded that as the predecessor- in- interest of the respondents did not have possession, prayer for injunction had been refused by the learned trial Court. It was claimed that the appellant had come to know about the insertion of the name of the predecessor- in- interest of the respondents on 25.03.1983, as such, his name was required to be struck- off from the sale deed and to amend the deed. Accordingly, the appellant had preferred a counter-claim for declaration of sole jote right and possessor of the suit land, for striking out the name of the predecessor- in- interest of the respondents from registered deed no. 3900 dated 09.04.1981, with further prayed that if the predecessor- in- interest of the respondents failed to amend the sale deed within the period stipulated by the Court, the appellant be allowed to do so through Court and the appellant had also prayed for cost.

5. It would be relevant to mention herein that from the appellate judgment it appears that the suit was decreed in favour of the predecessor- in- interest of the respondents on 04.2.1999 and the aggrieved appellant had preferred T.A. 6/1999, and learned Civil Judge, Karimganj had remanded the matter back to the learned trial Court by framing additional issues, viz., issue nos. 7 and 8. Thereafter, the suit was decided afresh.

6. After remand, the learned trial Court had framed the following issues for trial, viz., (i