An appeal under Section 100 of the Code of Civil Procedure requires substantial questions of law; if the counterclaim's dismissal has attained finality, the appeal may lack merit.

JUDGMENT :

DEVASHIS BARUAH, J.

Heard Mr. S. P. Roy, the learned counsel appearing on behalf of the appellant and Mr. T. R. Gogoi, the learned counsel appearing on behalf of the respondents.

2. The instant Appeal is filed under Section 100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’) challenging the judgment and decree dated 18.10.2012 passed in Title Appeal No.5/2011 by the Court of the learned Civil Judge, Lakhimpur, North Lakhimpur whereby the Appeal was allowed thereby setting aside the judgment and decree passed by the Court of the learned Munsiff No.2, Lakhimpur, North Lakhimpur (hereinafter referred to as ‘the learned Trial Court’) dated 02.06.2011 in Title Suit No.6/2009 and further the suit of the plaintiffs was decreed.

3. It is seen that the Coordinate Bench of this Court vide the order dated 15.03.2013 had admitted the instant Appeal by formulating two substantial questions of law which reads as under:-

(1) Whether the counter claim presented by the defendants has been dismissed on the basis of findings not on materials on record but on the determination of title of the plaintiffs, who were defendants in the counter claim?

(2) Whether the learned lower Appellate Court misconstrued the evidence adduced by the parties on the basis of adverse possession claimed by the counter claimant, which was even supported by plaintiffs own witnesses, in favour of the counter claim?

4. The question which arises in the instant Appeal is as to whether the two substantial questions of law so formulated by the Coordinate Bench of this Court vide the order dated 15.03.2013 are involved in the instant Appeal. For the purpose of adjudication of the said aspect, this Court finds it relevant to take note of the facts leading to the filing of the instant Appeal.

5. The plaintiffs had filed a suit being Title Suit No.6/2009 before the Court of the learned Munsiff No.2, North Lakhimpur seeking declaration of right, title and interest over the suit land; to deliver khas possession of the suit land by evicting the defendants therefrom; to recover the arrear rent from the defendant No.3 after his ejectment and also to issue a permanent injunction against the defendants restraining them and their agents from interfering with the possession of the plaintiffs after delivery of khas possession of the suit land to them.

6. It was pleaded in the plaint that the entire suit land covered by Periodic Patta No.228 was a joint Patta land. It was settled with the father-in-law of the plaintiff No.1 and his two other brothers. There was an amicable partition of the family properties and the two brothers, namely, Bhola Chutia and Pandu Chutia shifted to other place, thereby leaving the entire land of KP Patta No.228 in favour of the father-in-law of the plaintiff No.1, namely, Kamalchan Chutia (since deceased). In the said suit, the legal heirs of Late Bhola Chutia and Late Pandu Chutia were also made parties as proforma defendants. It is the further case of the plaintiffs that the suit land was mutated in the name of the husband of the plaintiff No.1 and the father of the plaintiff No.2 after the death of Late Kamalchan Chutia as well as the other two sharers. It was further mentioned that although the Pattadars used to write “Chutia” as their title, their sons wrote “Gogoi” instead of “Chutia”. In the suit, it was stated that the defendant No.1 was allowed to take care of the land for some time in the year 2002 by rearing fish in two ponds and also stay in the farmhouse constructed. In the year 2004, the defendant No.1 handed over the possession of the suit land to the plaintiffs. Thereupon, the plaintiffs rented out the said farmhouse standing over the suit land to the defendant No.3 who was a primary school teacher of Dhokuakhana at a monthly rent of Rs.200/-. The defendant used to pay the rent initially but defaulted from the month of September, 2007. It is under such circumstances, the plaintiff No.1 served a legal notice on 03.10.2008.

7. It is th