The court ruled that framing additional issues after arguments is lawful if it aids in resolving the matter, and failure to substantiate claims regarding tenancy rights led to dismissal of the appeal.

JUDGMENT :

DEVASHIS BARUAH, J.

1. Heard Mr. S.K. Ghosh, the learned counsel appearing on behalf of the appellant and Mr. B.K. Sen, the learned counsel appearing on behalf of the respondents.

2. This is an Appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’) challenging the judgment and decree dated 31.03.2008 passed by the Court of the learned Civil Judge, Dhubri (hereinafter referred to as ‘the First Appellate Court’) in Title Appeal No.11/2005 whereby the said Appeal was dismissed and the judgment and decree passed by the learned Trial Court, i.e. the Court of the learned Civil Judge (Junior Division) No.1, Dhubri on 28.03.2005 in Title Suit No.167/1997 was affirmed.

3. It is seen from the materials on record, more particularly the order dated 17.11.2008 that two substantial questions of law were formulated which are reproduced herein under:-

A. Whether framing of two vital additional issues by the learned Trial Court after conclusion of argument behind the back of the parties and without affording a chance to the plaintiff to lead evidence on such issues has vitiated the impugned judgment for infraction of Order XIV Rule 4 of the Code of Civil Procedure?

B. Whether non-consideration of the provisions of the Assam (temporarily Settled Arrears) Tenancy Act, 1971 for deciding the suit has vitiated the impugned judgment?

4. The question arises in the instant Appeal as to whether the two substantial questions of law which were formulated by this Court under Section 100 (4) of the Code are involved in the instant Appeal.

5. The brief facts which led to the filing of the instant Appeal are as under:-

6. It is the case of the plaintiff who is the appellant herein that Late Purna Ch. Saha and Late Satish Ch. Saha jointly owned a plot of land admeasuring 18 bighas 2 kathas 14 lechas covered by Khatian No.58 at village Monipur Part-I under Bagribari Circle which was specifically described in Schedule-A to the plaint. It was stated that after the death of both the original landowners of Schedule-A land, their legal heirs amicably partitioned amongst themselves and they possessed the Schedule-A land.

7. The defendant No.3 is one of the sons of Late Satish Ch. Saha and got his share in Dag. No.13 in Schedule-A which has been more specifically described in Schedule-B to the plaint. Out of the said land which has been described in Schedule-B to the plaint, it is the further case of the plaintiff that on 17.02.1976 BS, a plot of land admeasuring 3 kathas 11 Lechas was handed over to the plaintiff and he was given a pattan by the defendant No.3. It is the case of the plaintiff that the plaintiff continued to remain in possession of the said land which was delivered and more specifically described in Schedule-C to the plaint for a period of 18 years thereby constructing a dwelling house.

8. It was further stated in the plaint that on the western boundary of Schedule-C land, Late Mokbul Hussain and Lake Abed Ali Khalifa had a plot of land. When the plaintiff got pattan over the Schedule-C land from the defendant No.3, Mokbul’s share (eastern part) sold to one Jasimuddin Mondal, Azizul Hoque, Abdul Motin and the western part still possessed by the legal heirs of Late Abed Ali Khalifa. Jasimuddin had constructed a shop house and Azizul had been possessing the part of his purchased land which is the northern part adjacent to the western boundary of the plaintiff’s Schedule-C land.

9. It was further mentioned that the defendant Nos.1 & 2 instituted a suit being Title Suit No.35/1980 against the plai