JUDGMENT :

Mir Alfaz Ali, J.

1. This regular second appeal is by the defendant against the judgment and decree passed by learned Civil Judge, Barpeta in Title Appeal No. 1/2005 arising out of T.S. No. 92/1999.

2. The respondent, as plaintiff filed T.S. No. 92/2009 for declaration of right, title, and interest and recovery of possession of the suit land. The case of the plaintiff was that he purchased the suit land measuring 1 Bigha 2 Kathas 5 Lechas covered by Dag No. 91 and Patta No. 158 from the owner Pran Krishna Das by registered sale deed No. 795/516 dated 26.03.1987 and took possession thereof. The name of the plaintiff was also mutated in respect of the suit land. The defendant dispossessed the plaintiff from the suit land on 15.12.1998 and therefore, the plaintiff filed the suit for the relief as indicated above.

3. The defendant contested the suit by filing written statement and also raised a counter claim. The pleaded case of the defendant was that the suit land was originally covered by annual patta in the name of Pran Krishna Das, who sold the suit land along with his other lands to the defendant in the year 1967 by registered deed No. 8278/67 dated 14.12.1967 and since then he has been possessing the suit land. The annual patta of the suit land was converted to periodic patta in the year 1987. After receipt of the summon of the suit, the defendant came to know about the sale deed in favour of the plaintiff. It was stated by the defendant that the suit land having been sold by Pran Krishna Das to the defendant in the year 1967, he did not have saleable right over the suit land and therefore, the alleged sale deed executed in favour of the plaintiff in the year 1987 did not convey any title. Therefore, the defendant also made a counter claim seeking declaration of his title and the cancellation of the sale deed in favour of the plaintiff and confirmation of possession. In the written statement against the counter claim the plaintiff denied the sale deed No. 8278/67 in favour of the defendant. It was further stated that the defendants filed a suit against Pran Krishna Das, which was dismissed and therefore, the counter claim was barred by res judicata. On the basis of the above pleadings, learned trial court framed the following issues:-

"1. Whether the suit is barred by limitation?

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

3. Whether the plaintiff has right, title and interest over the suit land and the plaintiff was dispossessed by the defendant on 15.12.98 from the suit land?

4. Whether the defendant purchased the suit land from Prankrishna Das alongwith other land vide registered sale deed No. 8278/67?

5. If so, the defendant has right, title and interest over the land described in the counter claim?

6. Whether the registered sale deed No. 795/516 dated 26.03.87 is illegal and inoperative in the eye of law?

7. Whether the plaintiff is entitled to decree as prayed for?

8. Whether the defendant is entitled to get decree as claimed in the counter claim?

9. What other relief or reliefs the parties are entitled to?"

4. Both the parties adduced evidence and after hearing the parties, learned trial court dismissed the suit of the plaintiff and decreed the counter claim of the defendant Aggrieved by and dissatisfied with the judgment of the learned trial court, the plaintiff preferred an appeal and the learned first appellate court having allowed the appeal reversed the judgment and decree passed by the learned trial court and decreed the suit of the plaintiff.

5. Aggrieved, the defendant preferred the instant second appeal, which was admitted to be heard on the following substantial question of law:

"Whether the learned first appellate court erred in law in reversing the judgment passed by the learned trial court on the ground of non-production of the original of Ext.-A, which was admitted without any objection."

6. I have heard Mr. J. Ahmed, learned counsel for the appellant and Mr. A.C. Sarma,