JUDGMENT :

ARUN DEV CHOUDHURY, J.

1. Heard Mr. A. Dasgupta, learned Senior counsel assisted by Ms. B. Das, learned counsel for the appellant. Also heard Md. M.H. Rajbarbhuiyan, learned counsel for the respondents.

2. The present second appeal is directed against the judgment and order dated 14.10.2004 passed by the learned Civil Judge, Senior Division, Karimganj in TA No. 103/2002 whereby the judgment and decree dated 22.07.2002 dismissing the TS No. 207/2000 was affirmed.

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

“1. Whether the first appellate court erred in dismissing the appeal by making out a new case not pleaded by the parties?

2. Whether the suit of the plaintiff/appellant could be dismissed for not inserting any relief of recovery for khas possession in the prayer portion although the plaintiff claimed the same in the alternative manner?”

4. The appellant as plaintiff instituted a Title Suit being TS No. 207/2000 before the learned Civil Judge, Junior Division No. 2, Karimganj for declaration and consequential relief. The plaintiff sought for declaration of right, title and interest over the suit property on the basis of purchase and a prayer was made that the defendants be directed to hand over the possession of the suit land and alternatively the plaintiff is entitled to get the possession of the suit property through court of law. The other prayer was for declaration that the plaintiff is entitled to use one homestead path of the defendants to come and go elsewhere and to use the water of the pond in pursuance of term of condition of document No. 245 dated 06.02.1987 and document No. 3146 dated 30.10.1986.

5. It was the plaintiff’s case that the suit land was purchased originally by one Chitta Ranjan Das (vendor of the plaintiff) from the original owner by a registered sale deed No. 3146 dated 30.10.1986. The defendant No. 1 was one of the executors of the aforesaid sale deed being legal heirs of one of the original land owner. Subsequently, the plaintiff purchased the suit land from his vendor vide registered sale deed No. 245 dated 06.02.1987 and obtained possession of the said land with the right to use homestead path of the defendants for egress and ingress like his vendor.

6. It was also pleaded that there was a title suit being TS No. 171/1991 between the plaintiff and defendant No. 1 and the said suit was disposed of on compromise by a judgment and decree dated 14.09.1993, wherein the defendants had admitted the purchase and possession of the plaintiff over the suit land.

7. It was also pleaded that the defendants are threatening to dispossess the plaintiff and finally with a motive to grab the suit land removed the bamboo fencing of the plaintiff from the suit land. It was also pleaded that the defendants are threatening that they would forcibly construct house over the suit land. Accordingly, permanent injunction was sought for along with declaration.

8. The defendants contested the suit by filing written statement and denied the allegation as pleaded in the plaint. They specifically denied the execution of the two sale deeds and pleaded that the heirs of Ambika Charan Das or Aswini Kumar Das never sold the suit land to the vendor of the plaintiff.

9. The plaintiff adduced four witnesses and exhibited two documents. However, the defendants did not lead any evidence in support of their pleading. Subsequently, the learned trial court did not believe the registered sale deeds on the ground that the attesting witness (PW-2) deposed that the deed was not written in his presence and the executants also did not put signature in his presence.

10. Being aggrieved, the plaintiff preferred an appeal under Section 96 of the Code of Civil Procedure, 1908 which was registered as TA No. 103/2002. The learned Appellate Court also dismissed the appeal on the ground that the plaintiff has not specifically pleaded any date of dispossession though they have stated in their eviden