JUDGMENT :

1. Heard Mr. S. K. Ghosh, the learned counsel appearing on behalf of the appellants and Mr. R. Sarma, the learned counsel appearing on behalf of the respondents.

2. The instant appeal was admitted vide an order dated 11.05.2009 by formulating a substantial question of law which is reproduced hereinunder:

“Whether the learned Court below is right in holding that the suit of the plaintiff is barred by Article 65 of the Limitation Act, in view of the averments made by the defendants in the written statement that they are not possessing any land covered by Schedule-C to the plaint.?”

3. For ascertaining as to whether the said substantial question of law arises in the instant appeal, this Court deems it proper to deal with the facts in brief which led to the filing of the instant appeal. For the purpose of convenience, the parties herein are referred to in the same status as they stood before the Trial Court.

4. The appellants herein as plaintiffs had instituted the suit being Title Suit No.27/1991 before the Court of the Munsiff No.1, Kokrajhar. The case of the plaintiffs in the said suit was that one Late Kripesh Ranjan Purkayastha (since deceased) was the owner of two plots of land. One plot being 3 Kathas under Dag No.672/841 covered by Khatian No.1062 and the other plot of land being 1 Katha 4 Lechas under Dag No.672 covered by Khatian No.207. Both the lands fall within Kokrajhar Town, Chitt. It is the further case of the plaintiffs that out of the 3 Kathas of land of Dag No.672/841 covered by Khatian No.1062, Late Kripesh Ranjan Purkayastha had sold 1 Katha 8 ¼ Lechas to one Shri Rathindra Das on the Western side and there remained 1 Katha 11 ¼ Lechas in the said Dag. The said land has been most specifically described in Schedule-A. It is the further case of the plaintiffs that Late Kripesh Ranjan Purkayastha on 11.05.1971 vide various deeds had sold the land measuring 1 Katha 4 Lechas under Dag No.672 covered by Khatian No.207 which have been most specifically described in Schedule-B to the plaint. It is the case of the plaintiffs that the defendant No.1 has encroached upon 17 Lechas of land which is a part of the Schedule-A land for which the suit was filed. The said 17 Lechas of land has been most specifically described in Schedule-C to the plaint. In the said suit, the plaintiffs prayed for declaration of their right, title and interest over the Schedule-C land; for a declaration that the Schedule-C land is a part of the Schedule-A land; for a declaration that an area measuring 10 Lechas expunged from Khatian No.1062 and its inclusion in Dag No.672 in Khatian No.207 in Misc. Case No.1425 is not binding upon the plaintiffs and that the defendant No.1 had not acquired any title by the said wrong entry; for recovery of khas possession of Schedule-C land by evicting the defendant No.1 therefrom and by removing the house i.e. standing thereupon; cost of the suit etc.

5. All the defendants have filed their written statements. In the written statement filed by the defendant No.1, he had taken various grounds of preliminary objections. It was the specific case of the defendant No.1 in his written statement that the entire land of Khatian No.207, Dag No.672 measuring 1 Katha 4 Lechas as in records were given physical possession to the defendants against some advance payments made on good faith in the year 1964 and the sale deeds were executed in 1971 (on 11.05.1971) and the boundary demarcation between the lands of Khatian No.1062 and the Khatian No.207 consist of 1 Katha 4 Lechas was given by the transferee in 1964 by erecting some wooden posts and planting trees and betel nut plants in the year 1964 itself. In paragraph No.20 of the said written statement, it was the specific stand taken by the defendant No.1 that he had not encroached the plaintiffs’ land as described in Schedule-C to the plaint.

6. It further appears that there was an additional written statement which was filed by the defendants pursuant to an amend