The main legal point established is that the plaintiff's claim for partition and possession was within the subject matter of the suit, while the defendant's claims of ownership and leasehold rights over a separate portion of the land were found to be beyond the scope of the suit.

JUDGMENT :

Devashis Baruah, J.

Heard Mr. G.N. Sahewalla, the learned senior counsel assisted by Ms. S. Todi, the learned counsel for the appellant and Mr. S. Sahu, the counsel appearing on behalf of the respondent No.1. None has appeared on behalf of the other respondents.

2. At the outset, it is relevant to take note of the submission of the learned senior counsel appearing on behalf of the appellants that the respondent No.19 who was the co-appellant in Title Appeal No. 16/1989 along with the defendant No.1, expired on 10/11/2001 during the pendency of the said Title Appeal No.16/1989 and before the completion of the hearing of the said appeal. He therefore submits that the said appeal i.e., the Title Appeal No.16/1989 in so far as the respondent No.19 herein/defendant No.30 in so far as said Appeal had abated. It is also relevant at this stage to take note of the submission of Mr. S. Sahu, the learned counsel for the respondent No. 1, that by virtue of Order XLI Rule 4 of the Code, the defendant No.1/co-appellant in Title Appeal No.16/1989 can maintain the said appeal dehors the abatement of the said appeal in so far as the other co-appellant is concerned. The learned senior counsel for the appellant also submitted that as regards the Title Appeal No.14/1989 and Title Appeal No.15/1989, the matters have been already amicably resolved and as such, the instant appeal is only restricted to the adjudication in so far as the Title Appeal No.16/1989 is concerned.

3. This Court vide an order dt. 31/8/2001 admitted the instant appeal by framing two substantial questions of law which are as herein under :

(i) Whether the impugned judgment passed without discussing the issues framed and recording its finding on the said issues is a judgment in accordance with the Order XIV Rule 2 of the CPC?

(ii) Whether in the case where the defendants claimed to permissive occupants/lease holder of the portion of the suit land under the plaintiffs are entitled to challenge the title of the plaintiffs to the same land?

4. At the outset, the learned senior counsel for the appellants submitted that the first substantial question of law so framed does not arise in the instant appeal and accordingly the same is not required to be taken into consideration while deciding the instant appeal. Taking into account the said submission made by the learned senior counsel appearing on behalf of the appellants, the first substantial question of law so formulated by this Court is considered as redundant, more so, taking into account that the said substantial question has been incorrectly framed in the facts of the instant case and consequently is not involved in the instant second appeal.

5. As regards the second substantial question of law, this Court is of the opinion that for adjudicating as to whether the second substantial question of law so framed is involved in the instant appeal, the facts of the instant case is required to be looked into.

6. For the purpose of convenience, the parties herein are referred to in the same status as they stood before the trial Court.

7. The plaintiff in the suit, Suresh Goala had averred in the plaint that the land of R.S. Patta No.1 which was included under Second R.S. Patta No.1, one Nagendra Chakraborty and Basdeo Kurmi were the joint owners and possessors of the entire land of the said patta in equal shares. Basdeo Kurmi was the owner and possessor of 4 bighas, 9 kathas 8 chataks of land which was half of the land of the said patta. Late Basdeo Kurmi had 7 sons and 2 daughters. Out of his sons, 4 sons died during the lifetime of their father. It has been alleged in the plaint that all the successors in interest of late Basdeo Kurmi became owners and possessors in respect to 4 bighas, 9 kathas 8 chataks of land pertaining to second R.S. Patta No.1 after the death of late Basdeo Kurmi. They sold the entire 4 Bighas, 9 kathas and 8 chataks of land to the plaintiff vide registered sale deed dtd. 15/9/1979 for proper consideration and de