RSA 81/2003 BEFORE THE HON’BLE MR. JUSTICE AC UPADHYAY JUDGMENT & ORDER (C.A.V.) This second appeal is directed against the judgment and decree dated 10. 9.02 passed by the learned Civil Judge, Sr. Division, Barpeta in T.A.No.2/01, by which the judgment and decree dated 20.12.2000 passed by the learned Civil Judg e, Jr. Division, Barpeta in T.S.No.83/97 was set aside. 2. The facts necessary for disposal of this appeal are as follows: The plaintiffs/respondents filed T.S.No.83/97 in the court of the Civil Judge, Jr. Division, Barpeta, praying for a decree for declaration of right, tit le and interest and possession of the plaintiffs over the suit land and also for recovery of ’khas’ possession of the suit land by evicting the appellants/defen dants and also for deleting the names of the appellant from the land records of by issuing precept, to the land revenue authorities. According to the plaintiffs/appellants the suit land belonged to them an d they never sold and/or alienated it to the respondents/defendants. Further the plaintiff No.1 never put his signature/thumb impression upon the ’Chitha’ to co nvert/mutation of the suit land in favour of the defendants/respondents. The pl aintiffs alleged that the defendants/respondents on 7.6.97 had forcefully dispos sessed the plaintiffs/appellants from the suit land on the strength of fraudulen t mutation over the suit land and also constructed 3 storied C.I. Sheet house on 4.6.97. After obtaining the certified copy of the ’Chitha’ on 7.6.97, the plai ntiffs came to know about the fraudulent ’Chitha’ mutation allegedly made by the defendants/respondents. The plaintiffs thereafter brought the suit for recover y of the possession over the suit land and for declaration of right, title and i nterest and for cancellation of ’Chitha’ mutation. 3. The principal defendants contested the suit by filing written st atement wherein it was contended that the suit is not maintainable and it is bar red by limitation. It is also pleaded by the defendants that originally under P atta No.226, there was 5 bigha 3 Katha 15 Lechas of land covered by Dag No.373 (which is of 4 Bigha 1 Katha 10 Lechas land) and Dag No.380, which covered land measuring 1 Bigha 1 Katha and 5 Lechas. Out of the said land, the defendant No. 1 Md. Abdul Salam got mutation over 3 katha 3 ‰ Lechas of land by right of posse ssion over Dag No.380 in place of plaintiff No.1, which was approved by the Sub- Deputy Collection, Barpeta on 8.11.77. Thereafter, the defendant shifted their homestead on the same land in the year 1977 and since then they have been posses sing the land without any interruption from anybody whatsoever. Thereafter, the defendant purchased another plot of land from Moiram Nessa and others. The de fendant No.1 further purchased 4 Katha 10 Lechas of land from the Dag No.513 and 515 vide registered sale Deed No.7730/84 and purchased 1Bigha 2 Katha 15 Lechas from Dag No.513 and 515 vide registered Deed No.43/85 from the plaintiff Bisa M ia. The Dag No.380 is adjacent to the Dag No.515. In the year 1977, the defen dants/respondents dug a fishery over the suit land and have possessed the same s ince 1977 and thus they acquired right, title and interest over the suit land by adverse possession. 4. On the basis of the pleadings of the parties the following issue s were framed by the learned trial court: Issues- 1. Whether there is cause of action for the suit? 2. Whether the suit is not maintainable in the present form? 3. Whether the suit is bad for non-joinder of necessary parties? 4. Whether the suit is under valued? 5. Whether the suit is barred by law of limitation? 6. Whether the plaintiffs have right, title and interest over the suit l and? 7. Whether the plaintiffs were dispossessed from the suit land on 7.6.97 by the defendants? 8. Whether the plaintiffs are entitled to get ’Khas’ possession as praye d for? 9. Whether the mutation order dtd. 6.1.77 and 8.11.77 in favour of the d efendants are illegal and void and liable to be cancelled? 10. Whether the plaintiffs are entitled to get the decree as prayed for? 11. To what other relief or reliefs if any the plaintiffs are entitled? 5. During the trial, the plaintiffs examined as many as 4 witnesses and the defendants’ side also examined as many as 5 witnesses, in support of th eir respective strength. The learned trial court on the basis of the evidence o n record decided issue Nos. 3,5,6 and 9 against the plaintiffs and accordingly, dismissed the suit. 6. The learned trial court while deciding the issuing Nos. 6 and 9 came to the conclusion that Bisa Mia, plaintiff No.1 vide Ext. ’Ga’ i.e. registe red Sale Deed No.7730 sold suit land measuring 2 Kathas, covered by Dag No. 513 and 2 Katha 10 Lechas of the suit land covered by Dag No. 515, KP Patta No.234. The plaintiff No.1, vide registered Sale Deed No.43. Ext.’Gha’ also sold 3 Kath a 15 Lechas of the suit land covered by Dag No.513 and 4 Kathas under Dag No.515 , KP Patta No.234. The plaintiff No.1, accordingly, in total sold 2 Bigha 2 Ka tha 5 Lechas of the suit land to the defendants covered by Dag No.513 and 515, K P Patta No.234. The names of the defendants were accordingly mutated on 18.9.91 in the land records of the suit land on the basis of the aforesaid sale deeds i .e. Ext. ’Ga’ and Ext. ’Gha’, who was the pattadar of the said plots of land. 7. It was further held by the learned trial court that as per Ext. 10, the names of the defendants were mutated on 6.1.77 and 8.11.77 in place of t he plaintiff No.2, namely Julmat Ali, in Dag No.380, which later on was converte d in to Dag No.515 as per Ext.8. The plaintiff No.2 had sold the suit land cover ed by Dag No.380 of erstwhile KP Patta No.226, to the defendant No.1 vide regist ered Sale Deed Ext.’Ka’ and the defendants continued to remain in possession by mutating there names in the plot of the suit land. The learned trial court accor dingly in deciding the issue Nos. 3 and 5, came to the finding that the suit fil ed by the plaintiffs is not maintainable as it is barred by limitation. The lear ned trial court having discussed the evidence adduced by the parties and the mat erials on record dismissed the suit of the plaintiffs. 8. The judgment of the trial court was carried on appeal to the app ellate court and the appellate court vide judgment and decree dated 10.9.02 pas sed in T.A.No.2/01 reversed the finding of the trial court in issue Nos. 3,5,6 a nd 9 and accordingly, allowed the appeal filed by the plaintiffs/respondents. 9. This second appeal has been admitted for hearing on the followin g substantial questions of law: (A) Whether the suit filed by the respondents/plaintiffs is maintainable and i s not bared under Articles 65 and 58 of the Limitation Act and whether findings arrived therein by the learned lower Appellate Court in deciding issue No.5 is s ustainable in law? (B) Whether the findings of the learned lower appellate court that the plaintif f No.2 has 1 Bigha 15 lechas under dag No.513 covered by patta No.234 without pr operly appreciating exhibit Ga and Exhibit- Gha is sustainable in law? 10. The learned counsel for the appellants submits that the lower ap pellate court in deciding the issue No.3 ignored the names of the other pattadar s of the suit land in terms of the land records and thus failed to assess that t he suit was not maintainable for non-joinder of necessary parties. The learned counsel for the appellant further pointed out that the lower appellate court in deciding issue No.5 ignored the statutory mandate as provided under Section 65 a nd 58 of the Limitation Act and did not at all decide the issue in question in t he appeal. Referring to the Ext.’Ka’ and Ext.8 in the case record, the learned counsel for the appellants contended that while deciding the issue Nos. 6 & 9, t he learned appellate court ignored the Sale Deed i.e Ext.’Ka’ and thereby came t o a perverse finding in holding that there are no records or materials to show t hat Abdul Jalil (defendant No.2) and Zulmat Ali (Plaintiff No.1) are ever connec ted or involved in the said transaction. 11. Learned counsel for the appellant pointed out that it would be p ertinent to mention herein that Zulmat Ali (i.e. Plaintif No.2), did not sell th e suit land covered by Dag No.513 , but sold a portion of the suit land covered by Dag No.515 (erstwhile Dag No.380) vide sale deed i.e. Ext.’Ka’ vis-à-vis Ext. 8. Further the finding of the lower appellate court in deciding the issue Nos. 6 & 9 that an area of 1 Bigha 15 Lechas of land in Dag No.513 has still remained with Bisa Mia i.e. Plaintiff No.1 , is nobody’s case and apparently it is a perv erse finding of fact and unsustainable in law. It is further pointed out that t he issues decided by the trial court on adverse possession of the suit land in t erms of the Section 65 and 58 of the Limitation Act was not at all discussed by the lower appellate court. 12. On the other hand, the learned counsel for the plaintiffs/respondents ref erring to the sale deed allegedly executed by the plaintiffs submitted that on t he face of denial of execution of sale deed by the plaintiffs as alleged by the defendants, burden was cast on the defendants to prove the sale deed, but such b urden was not discharged by the defendants by adducing cogent and reliable evide nce to establish that the plaintiffs executed the sale deed and sold the plot of land as claimed by the defendants. 13. Upon careful scrutiny of the evidence on record and the judgment s of the trial and also of the appellate court, it clearly transpires that the t rial court as well as first appellate court ignored and left out to effectively make decisions on the issues relating to adverse possession and limitation witho ut by discussing the essence of the law governing the field. A bare perusal of t he two judgments, it transpires that the trial court as well as appellate court disposed of the suit in a casual manner without either framing or discussing the decisive issues, consequently, came to a perverse findings. 14. Considering the materials on record in its entirety, this Cou rt is of the considered view that the issues in question are required to be deci ded afresh by the appellate court by discussing the available materials on recor d. Therefore, this appeal is liable to be remanded back to the appellate court, for a fresh decision in accordance with law. I refrain from giving any opinion on merits, since I propose to remand the matter to the appellate court to decid e the issues accordingly. 15. Accordingly, the appellate judgment under challenge is hereby s et-aside. The second appeal is allowed. The case is remanded back to the learned District Judge, Barpeta, for re-hearing the parties and for giving its findings afresh, as discussed above. Since the case is an old one, it is desirable that the learned District Judge, Barpeta, shall try to dispose of the case within a p eriod of 6 months from the date fixed for hearing of the case. The parties, thro ugh their counsel, are directed to appear before the court of the learned Distri ct Judge, Barpeta, on 30.8.2011 and the learned District Judge, Barpeta, shall t ry to dispose of the case within the time given. However, till the pendency of t he appeal before the learned First Appellate Court, the parties shall maintain s tatus quo in respect of the suit land, except by due process of law. The Registr y is directed to send forthwith all the relevant records of the case to the lear ned District Judge, Barpeta, along with a copy of this judgment, so as to reach the said Court well before the date fixed. However, the parties are left to bear their own costs.