JUDGMENT :

Heard Mr. P. P. Baruah, the learned counsel for the appellants and Mr. D. Choudhury, the learned counsel appearing on behalf of the respondents.

2. This is an application under Section 100 of the Code of Civil Procedure, 1908 (for short, the Code) against the judgment and decree dated 03.10.2002 passed in Title Appeal No.3/2002 by the Court of the Civil Judge, (Senior Division), Barpeta whereby the judgment and decree dated 21.12.2001, passed in Title Suit No.2/2000 by the Court of the Civil Judge, (Junior Division), Bajali at Pathsala was reversed thereby allowing the appeal.

3. This appeal was admitted on 25.04.2003 by formulating two substantial questions of law which are quoted herein under :-

1. Whether the lower appellate court erred in law in decreeing the suit of the respondents-plaintiffs by declaring their right, title and interest in the suit land on the basis of Ext.4, a document of transfer of possession thereof?

2. Whether the learned lower court erred in law in declaring the suit of the respondents-plaintiffs in absence of the owner of the suit land in view of the Order-1, Rule 9 of CPC?

4. For the purpose of deciding as to whether the said substantial questions of law as formulated by this Court arises/involves in the instant appeal, it would be relevant to take note of the facts of the instant case. For the sake of convenience, the parties herein are referred to in the same status as they stood before the trial court.

5. The plaintiffs, who were the successor-in-interest of one Late Mukunda Ram Deka, had instituted the suit being Title Suit No.2/2000. In the said suit, the plaintiffs have alleged that Late Mukunda Ram Deka and Late Girish Chandra Deka were the brothers and they used to reside at Pathsala Town within Mouza-Uttar Bajali in the district of Barpeta. Late Mukunda Ram Deka and Late Girish Chandra Deka were the rayats under the settlement holder in respect to a plot of land measuring 1 katha covered by Dag No.488 under rayati khatian No.50 under K.P. Patta No.344. The said land has been specifically described in Schedule-A to the plaint. There was a division amongst Late Mukunda Ram Deka and Late Girish Chandra Deka during their lifetime and the share of Late Mukunda Ram Deka was 10 lechas of the Schedule-A land. The said land falling in the share of Late Mukunda Ram Deka was specifically described in Schedule-B to the plaint. It has been further averred in the plaint that Late Mukunda Ram Deka, during his lifetime, had rented out his house standing over the Schedule-B to different tenants. Thereafter, when Late Mukunda Ram Deka had to shift his business to Udalguri, he thought it better to rent out his house standing over the Schedule-B land to some tenants and accordingly, Late Mukunda Ram Deka rented out one room of the house to the defendant and the other room to another tenant. The room rented out to the defendant has been specifically described in Schedule-C to the plaint. It has been alleged in the plaint that the rent of the room initially was Rs.70/-but since 01.01.1998, the rent had increased to Rs.700/-per month. It was mentioned that the tenancy was oral and although there was no fixed date for payment of the rent by the defendant but the defendant used to clear the rent within the following English Calendar month. With the passage of time, the suit house had become dilapidated. Further to that, upon the death of Mukunda Ram Deka, the plaintiffs required the suit premises for construction of a new house upon the Schedule-B land by demolishing the old house and to start some shops for the plaintiffs. Out of the two tenants, one tenant left vacating the suit premises whereas the other tenant, i.e. the defendant, though initially agreed to vacate the suit premises, did not do so. Situated thus, the plaintiffs sent a notice to the defendant on 10.07.2000 demanding him to vacate the suit house. The defendant, upon receipt of the said notice, sent a reply dated 17.07.2000 through a lawyer