JUDGMENT :

Kalyan Rai Surana, J.

1. Heard Mr. S.D. Purkayastha, learned counsel for the appellant at the stage of hearing under Order XLI Rule 11 CPC.

2. This appeal under section 100 CPC is directed against the first appellate judgment and decree dated 11.02.2020, passed by the learned Civil Judge No. 1, Cachar, Silchar in Title Appeal No. 7/2016, thereby dismissing the appeal and affirming the judgment and decree dated 19.12.2015, passed by the learned Munsiff No. 2, Cachar, Silchar in T.S. No. 57/2008 with modification.

3. The appellants herein were arrayed as the defendant nos. 1(i), 1(ii), 1(iii) and 2 in the suit, which was instituted by the respondent no. 1 herein. The proforma respondent no. 2 was arrayed as proforma defendant no. 2 in the suit The suit was for declaration of right, title, interest, recovery of khas possession and for consequential relief in respect of 1/4th share over land described morefully in the schedule of the plaint. The respondent no. 1 had also prayed for appointment of Commissioner for preparation of allotment of his share under the preliminary decree and for final decree. In the plaint, it was claimed that the suit land was jointly purchased by the respondent no. 1 and is other three brothers, all sons of Late Jatindra Chandra Paul. The appellants had contested the said suit by filing written statement and additional written statement, inter alia, claiming that the land was purchased by their predecessor-in-interest, late Jatindra Chandra Paul in the names of his four sons, and it was projected that on amicable settlement, the land fell in the share of appellant nos. 1(1) and 2 and that they had carried out the reconstruction of houses standing on the suit land after the old house was devastated by fire.

4. The learned trial Court had framed the following issues for trial:-

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

2. Whether the suit is barred by law of limitation?

3. Whether the plaintiff has right, title & interest over 1/4th portion of the suit land?

4. Whether the plaintiff is entitled to a preliminary decree for partition of the suit land?

5. Whether the plaintiff is entitled to recover khas possession of 1/4th portion of the suit land?

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

7. To what relief(s), if any are parties entitled?

8. Whether the suit is maintainable?

5. The respondent no. 1 had examined himself as PW-1 and had exhibited the registered sale deed no. 1085 dated 23.03.1985 (Ext. 1) and the signatures contained therein were marked as Ext. 1(1) to Ext. 1(32). The appellant no. 4 had examined himself as DW-1 and he did not exhibit any document.

6. In connection with issue nos. 3 and 5, the learned trial Court had arrived at the conclusion that the appellants had admitted execution of Ext. 1 sale deed in favour of (1) Raseswar Paul, (2) Jadab Chandra Paul, (3) Keshab Chandra Paul, and (4) Sujit Chandra Paul and, as such, bring one of the vendee, the respondent no. 1 had title over the suit land. It was also held that the respondent no. 1 was denied his share after 24.02.2008, when fire broke out in their house and the appellants had reconstructed the house at their own expenses. Accordingly, it was held that the respondent no. 1 had right, title and interest over 1/4th share in the suit land and was entitled to recovery of possession to the extent of his 1/4th share. In respect of issue no. 4, which has wrongly been mentioned as issue no. 3 in the judgment of the learned trial Court, it was held that in this case, the Civil Court had jurisdiction to try the instant partition suit. However, the issue no. 4 was decided in the negative and against the respondent no. I by holding that after amendment, the respondent no. 1 did not pay the ad valorem Court fees for partition. In respect of issue no. 8, it was held that the suit was partly maintainable for declaration of right, title and interest of respondent no. 1 over 1/4th share but the suit was held to be not ma