JUDGMENT AND ORDER :

1. Heard Mr. GN Sahewalla, learned Senior counsel assisted by Ms. S Todi, learned counsel for the appellant. None appears for the respondent though name of the learned counsels is shown.

2. The present appeal is directed against the judgment and decree dated 28.02.2007 passed by the learned Civil Judge, Dibrugarh in TA No. 06/2003 whereby the judgment and decree dated 22.01.2003 passed in TS No. 61/1989 dismissing the suit, was reversed.

3. The present second appeal was admitted on the following substantial questions of law:

“1. Whether the fraudulent mutation obtained in collusion with revenue authority in the record of right maintained by revenue authority can give right, title and interest in favour of such person without there being transfer by way of title deed?

2. Whether judgment of the court below is perverse in not considering the earlier record of rights where the name of predecessor-in-interest of the appellant finds place and in considering the subsequent Jamabandi only where the collusive mutation was there?”.

4. For determination, whether any substantial question of law as has been framed are involved in the present appeal, let this court summarize the background fact leading to filing of the present second appeal, which are as follows:

I. The respondent as plaintiff filed a suit for declaration and for confirmation of absolute possession over the scheduled land.

II. The basic case pleaded by the plaintiff was that the plaintiff along with one Tankeswar Gohain, son of Late Tileswar Gohain are joint pattadars and absolute owner of a plot of land measuring 7 Bighas 2 Kathas and 5 Lechas covered by Dag No. 111 of periodic patta No. 11 situated at Chakalia Gaon under Mouza Khowang in the district of Dibrugarh.

III. It was the further case that co-pattadar Tankeswar Gohai died intestate a few years ago and after his death by right of in-heritance and possession, the plaintiff became the absolute owner of the aforesaid plot of land.

IV. It is the further case that for a period of two years the defendant was allowed to cultivate over the aforesaid suit land, however, subsequently, the plaintiff refused to continue the cultivation and therefor, the defendant attempted to encroach the land twice and was unsuccessful.

V. The defendant filed written statement denying that the plaintiff is the absolute owner of the scheduled land after death of Tankeswar Gohain. The defendant also denied being a cultivator on Adhia basis under the plaintiff.

VI. Thus, the defendants claim that the originally the land belongs to one Rasiram Gohain and Horumoni Gohain. Rasiram Gohain is the father of the defendants and Horumoni Gohain had two sons, namely, Bhola Gohain and Tileswar Gohain. After death of Bhola Gohain and Tileswar Gohain, the half portion of the land was inherited by plaintiff and Late Tankeswar Gohain.

VII. Thus, after death of Tankeswar Gohain entire land was mutated in the name of the plaintiff in exclusion of Horumoni Gohain and it is the further claim of the defendants that on the basis of such falsification the plaintiff was trying to dispossess the defendants from their suit land.

VIII. It is the further case of the defendant that when the defendant came to learn that the plaintiff is claiming absolute ownership over the scheduled land, they took immediate steps to obtain copy of the Jamabandi of the land in question and after obtaining Jamabandi, the defendant could learn that in the Jamabandi prepared in the year 1973-74 though rightly reflects the name of the father of the defendants, the original pattadar, however, when the Jamabandi for the year 1993-94 was prepared, the name of the father of the defendant, Horumoni Gohain had been omitted therefrom and the entire land measuring 7 Bighas 2 Kathas 5 Lechas had been mutated in the name of the plaintiff. The defendant also preferred a counter claim in view of the claim by the plaintiff. The said counter claim was not entertained by the learned trial Court.

5. Th