Point of Law: There can be appointment of Amin Commission even at appellate stage.

JUDGMENT :

Heard Ms. R. Choudhury, learned counsel for the appellant. Also heard Mr. F. H. Laskar, learned counsel for the respondents.

2. The present second appeal, under Section 100 of the Code of Civil Procedure, is preferred against the judgment and decree dated 02.06.2011, passed by the learned Civil Judge, Barpeta, in Title Appeal No. 26/2010, dismissing the appeal and upholding the judgment and decree, dated 21.04.2010, passed by the learned Munsiff No. 1, Barpeta, in Title Suit No. 244/2008.

3. The brief facts of the case is that the present appellant, as plaintiff, instituted a suit, being Title Suit No. 244/2008, before the Court of learned Munsiff No. 1, Barpeta, for declaration of right, title, interest and khas possession along with partition. The plaintiff’s case was that the Schedule ‘A’ land of the plaint originally stands in the name of plaintiff, defendant No. 2 and pro-forma defendants. Out of the said Schedule ‘A’ land, the plaintiff purchased 2K 10L of land, which is specifically described in Schelue ‘C’ of the plaint from the pattadar- Ramjan Ali by a registered sale deed, dated 20.05.2006, and took the possession by demarcating the boundaries through the revenue officials. However, on 19.03.2008, the defendants, who were having their lands in eastern and southern boundaries of the Schedule ‘C’ land, forcibly trespassed into the Schedule ‘C’ land of the plaintiff and occupied the same by constructing permanent boundary wall without having their right, title and interest over the suit land.

4. The defendant Nos. 1 to 4 contested the suit by filing written statements. The defendant Nos. 2, 3 & 4 also filed counter claim stating that there is no cause of action and the suit is barred by limitation and the same is not maintainable and liable to be rejected. It was further stated that out of the land in Schedule ‘B’ of the plaint, one Yakub Ali mutated his name over 2 Bighas of land on 06.06.1969 on the strength of purchase from the original pattadars, namely, Kalu Muchi, Ram Raj Muchi and Afjal Muchi. In the year 1982 and 1984, defendant No. 2 purchased 3K 15L of land from Yakub Ali by executing 2 (two) registered sale deeds, vide registered sale deed Nos. 1021/81 and 921/84, respectively, which is specifically described in Schedule ‘X’ of the counter-claim. Accordingly, it is contended that the defendant No. 2 is the earlier purchaser than the plaintiff and also from his transferor Ramjan Ali. There is no existence of land measuring 2K 10L as per the boundaries mentioned in Schedule ‘C’ of the plaint and one Matiur Rahman Bhuyan and others are the northern boundary persons of the land of defendant No. 2, as described in Schedule ‘X’ of the counter-claim. Moreover, the plaintiff or his vendor- Ramjan Ali never took over possession of any part of the Schedule ‘C’ land of the plaint and the plaintiff might have purchased the alleged land in papers only. And, accordingly, the defendants denied the allegation of forcible dispossession and hence, by filing the counter-claim, the defendants prayed for declaration of right, title and interest, confirmation of possession and partition.

5. The defendant No. 1, in his written statement, had also reiterated the same facts as narrated by defendant Nos. 2, 3 & 4 in their written statement cum counter-claim and denied the allegation of dispossession or construction of pucca wall.

6. The plaintiff, thereafter, submitted written statement against the counter-claim of the defendants and pleaded that there is no cause of action for the counter-claim and the same is not maintainable at all. The plaintiff further denied the allegation of the defendants and reiterated the facts narrated in the plaint and accordingly, prayed for dismissal of the counter-claim of the defendants with cost.

7. On the pleadings of both the parties, following issues were framed by the learned Munsiff No. 1, Barpeta:

1. Whether there is cause of action for the suit as well as for the counter-claim?

2. Whether t