JUDGMENT AND ORDER (ORAL)

Heard Ms. F. Ahmed, the learned counsel appearing on behalf of the appellants. Mr. J. Deka, the learned counsel appears 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 26.11.2008 passed by the Court of the Civil Judge, Dhubri (hereinafter referred to as ‘the First Appellate Court’) in Title Appeal No.2/2002 whereby the Appeal filed was allowed thereby setting aside the judgment and decree dated 21.06.2004 passed by the learned Civil Judge (Junior Division) No.2, Dhubri (hereinafter referred to as ‘the learned Trial Court’)

in Title Suit No.315/1993.

3. It is seen from the records that vide an order dated

21.06.2010, the Coordinate Bench of this Court had admitted the instant Appeal by formulating the three substantial questions of law which are reproduced therein under:

1. Whether the suit of the plaintiffs is barred under Section 154 (1) (m) read with Section 23 (2) of the Assam land & Revenue Regulation, 1886?

2. Whether the learned lower Appellate Court erred in law in reversing the Trial Court judgment without dealing with the issue of limitation more particularly when the learned Trial Court held the suit to be barred by limitation?

3. Whether the suit of the plaintiffs is liable to be dismissed for non-compliance of the provisions of Order VII Rule 3 of the Code of Civil Procedure?

4. The question arises in the instant proceedings as to whether the three substantial questions of law which were formulated by this Court vide an order dated 21.04.2010 are involved in the instant Appeal. To appreciate and adjudicate the said aspect of the matter, this Court finds it relevant to take note of the brief facts which led to the filing of the instant Appeal.

5. From the records, it reveals that a suit being Title Suit No.315/1995 was filed by the plaintiffs claiming a declaration of right, title and interest of the plaintiffs over the plot of land described in the Schedule to the plaint; for demarcation of the boundaries of the plaintiffs’ land in Dag No.41 of Patta No.694 thereby demarcating the said land from Dag No.35 of Patta No.695 and making division of the land as per the Dag Numbers; for delivery of khas possession of the boundary measuring about 6 ½ lechas to have been given to the defendant Nos.2, 3 & 4 by the defendant No.1 on the eastern boundary of Dag No.41 by executing the Sale Deed; for declaration that the Sale Deed so executed in favour of the defendant No.2, 3 & 4 are inoperative; for a decree to send to the Collector for making division of the boundaries according to the share of the land where the plaintiffs will get 1 katha 11 lechas of the land in Dag No.41 in Patta No.694 and the defendants would get land measuring 3 kathas 2 lechas covered by Dag No.35 of Patta No.695 etc.

6. The case of the plaintiffs in brief was that the predecessors of the plaintiffs one Sukumar Muzundar as well as the defendant No.1 were brothers and had inherited certain property from their father one Late Rajani Kanta Mazumdar. It is the case of the plaintiffs that the predecessors of the plaintiffs and subsequently the plaintiffs were in possession of Dag No.41 of Patta No.694 which is the Schedule land. The land of the defendant No.1 was on the adjacent east of the plaintiffs’ land which is covered by Dag No.35 in Patta No.695 measuring 3 kathas 2 lechas. It was alleged that the defendant No.1 tried to obstruct the demarcation of the boundary in the year 1985 when the predecessors of the plaintiffs tried to demarcate the boundary of Dag No.41 and it resulted in filing of a suit by the defendant No.1 being Title Suit No.342/1985. The said suit, however, was dismissed for default vide an order dated 08.08.1991. It is the further case of the plaintiffs that the defendant No.1 sold some land from the western portion of the Dag No.35 which was adjacent to the land of the plaintiffs to the d