JUDGMENT :

The instant appeal has been preferred against the judgment and decree dated 17.05.2002 passed by the learned Civil Judge Senior Division No. 2, Silchar in Title Appeal No. 24/2000 whereby the appeal was dismissed and the judgment and decree dated 29.04.2000 of the Civil Judge Junior Division No. 1, Silchar in Title Suit No. 58/1996 was affirmed. The appellants are the legal heirs of the original defendant in the suit which was instituted for declaration of right and confirmation of possession over the suit land which was mentioned in Schedule-A of the plaint.

2. This appeal was admitted on 11.03.2003 on the following substantial questions of law:-

“i) Whether the suit praying for cancellation of the mutation of the appellants-defendants is barred by limitation?

ii) Whether the learned court below erred in inferring fraud in the mutation record Ext. 1 in the absence of full particulars there of as required under Order 6 Rule 4 CPC and without any proof thereof?”

3. I have heard Ms. R. Choudhury, learned counsel for the appellants whereas the respondents are represented by Shri P. K. Roy, learned Senior Counsel assisted by Shri S. K. Chakraborty, learned counsel.

4. The crux of the plaint was that the principal defendants had homestead land covered by Dag No. 650 which was contiguous to the suit land and by connivance, had made some false and incorrect entry in the mutation and was accordingly trying to dispossess the plaintiffs. The said projection was denied in the written statement.

5. Accordingly, the learned Trial Court had framed the following issues:-

“1. Is there any cause of action for the suit?

2. Is the suit barred by limitation?

3. Is the suit bad for defect of necessary parties?

4. Is the suit property valued and requisite court fee paid thereof?

5. Had the defendants and their predecessors illegally and collusively got their names mutated in the record of rights of the suit patta?

6. Have the plaintiffs acquired right, title, interest and possession over the suit land?

7. Are the plaintiffs entitled to get the decree as claimed?

8. To what relief/reliefs the parties are entitled?”

6. Both the parties had adduced evidence and the learned Civil Judge Junior Division No. 1, Silchar vide the judgment and decree dated 29.04.2000 in Title Suit No. 58/1996 had allowed the suit in favour of the plaintiff.

7. As indicated above, the present appellants were also unsuccessful in the first appeal instituted before the learned Court of the Civil Judge Senior Division No. 2, Silchar who had also dismissed the appeal vide judgment and decree dated 17.05.2002.

8. Ms. Choudhury, learned counsel for the appellants has submitted that the findings against Issue Nos. 2 and 5 are not in accordance with law and accordingly interference is called for from this Court. The Issue No. 2 is in connection with the objection taken by the appellants as defendants on the ground of limitation and the Issue No. 5 is in connection with the requirement to be followed under Order VI Rule 4 of the CPC.

9. Ms. Choudhury, the leaned counsel in dilating her submissions with regard to the first question of law framed with regard to the limitation has drawn the attention of this Court to paragraph 3 of the written statement and submits that a specific objection on the ground of limitation was raised. To substantiate the said ground, reference has also been made to the statements made in paragraph 7 of the plaint wherein it has been declared that with regard to the allegation of collusive entry in the records of right, objections were raised way back in the year 1912-1913. It is therefore submitted that the said issue could not have been raised afresh after about eight decades. It is submitted that by the concerned order of mutation, names of Sikandar Ali, Bakhtozzaman, Kamruzzaman who were sons of Gabru Miah were entered into the records of rights and such action was objected to by the plaintiffs. The learned counsel accordingly submits that the issue being grossly