JUDGMENT :

The instant appeal has been filed under Section 100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’) challenging the judgment and decree dated 17.06.2009 passed in Title Appeal No.21/2007 by the learned District Judge, Jorhat (for short, ‘the First Appellate Court’) whereby the judgment and decree dated 26.06.2007 passed in Title Suit No.42/2005 by the learned Civil Judge, Jorhat (for short, ‘the Trial Court’) was affirmed.

2. The instant appeal was admitted by this Court by formulating five substantial questions of law which reads as under:-

1. Whether the learned first appellate court committed an error of law in deciding the Title Appeal No.21/2007 without following the procedure laid down in Order 41 Rule 31 of the Code of Civil Procedure, 1908 and whether failure to formulate points for decision in the appeal resulted in miscarriage of justice?

2. Whether the findings of the courts below that the plaintiff/appellant was in permissive possession of the suit land is based on no evidence?

3. Whether both the courts below misconstrued the law and evidence relating to claim of the plaintiff/appellant over the suit land by prescriptive right of adverse possession without taking relevant facts and materials record?

4. Whether both the courts below committed an error of law declaring title of the suit land in favour of the defendants/respondents in the counter claim arising out of Title Suit No.42/05 in absence of positive evidence in support of their title?

5. Whether both the courts below committed an error in ignoring the provision of section 27 of the Limitation Act 1963 in absence of delivery of possession by the auction purchaser to the defendants/respondents?

3. The question whether the five substantial questions of law so formulated by this Court are involved in the instant appeal, this Court finds it relevant to take note of the brief facts leading to the filing of the instant appeal.

4. The appellant herein as plaintiff had filed the suit being Title Suit No.42/2005 before the Court of the Civil Judge (Senior Division), Jorhat seeking declaration and for permanent injunction. The brief facts for filing the suit are that a plot of land measuring 1 bigha 2 kathas 11 lechas covered by Periodic Patta No.298 admittedly belonged to Late Ramakanta Sarma Sabhapandit, Late Harikanta Sarma Sabhapandit, Late Gauri Kanta Sarma Sabhapandit and Harendra Nath Sabhapandit. This periodic patta was partitioned by the Deputy commissioner vide an order in the year 1970 whereby a part of the land falling in periodic patta No.298 fell into the share of Ramakanta Sarma Sabhapandit. The separate patta being patta No.391 fell into the share of Harikanta Sarma Sabhapandit, the patta No.392 fell into the share of Gauri Kanta Sarma Sabhapandit and patta No.393 fell into the share of Harendra Nath Sabhapandit. Each patta has 1 katha 17 ¼ lechas. The plaintiff claimed to be in possession of the share of Harikanta Sarma Sabhapandit which is the separate patta No.391. On account of non-payment of revenue, the said land in patta No.391 was put to auction sale in the year 1976 in relation to Case No.1750 of 1975-76 and one Santa Kumar Bhupal purchased the said land from the Government. Subsequent thereto, the said Santa Kumar Bhupal sold the land to one Nani Kumar Charkavorty (the predecessor of the defendants) some time in the year 1989 and his name was duly mutated in the revenue records. The said Nani Kumar Chakravorty as claimed by the plaintiff was her brother and due to some family dispute, he shifted to another house and lived separately and never remained in possession of the ancestral land or the suit land at any point of time. Pursuant to the death of Nani Kumar Chakravorty, the defendant No.1, i.e. Smti. Aruna Chakravorty got her name recorded in the record of rights in the year 1992. It was alleged in the plaint that the said mutation was carried out by the defendant No.1 mischievously and concealing material facts. It was als