N.CHAUDHURY, J. - (1.) Defendants of Title Suit No. 159/1983 of the court of learned Civil Judge (Sr. Divn.) No. 1, Barpeta have preferred this second appeal challenging the concurrent findings of the learned courts below. The suit of the respondents/ plaintiffs was decreed by the learned trial court and the learned first appellate court by judgment and decree dated 20.09.2003 in Title Appeal No. 2/1999 confirmed the same. This court while admitting the second appeal on 11.08.2006 framed the following substantial question of law: - "Whether the oral evidence of the plaintiffs/respondents is sufficient to establish the title of an immovable property as held by the learned courts below to the exclusion of documentary evidence -
(2.) The basic minimum facts necessary for adjudicating the present second appeal are required to be stated at the threshold. Surjyatan Nessa, a daughter of Abed Ali instituted the aforesaid title suit in the Court of learned Civil Judge (Jr. Divn.) No. 1 at Barpeta stating that the suit land originally belonged to her father Abed Ali. As legal heir of Abed Ali she obtained mutation with respect to the suit land on 27.11.1978 and has been enjoying the same since then. While she was enjoying the land, the defendants No. 1, 2, 3 and 4 and the proforma defendants instituted Title Suit No. 115/1981 praying for cancellation of her mutation with respect to the land but the said suit was dismissed. Aggrieved at such dismissal of that suit, the defendants trespassed into the suit land in the month of Asharh and took away the paddy standing on the land. They dispossessed the plaintiff although they did not have right, title and interest with respect thereto. Under such circumstances, plaintiff instituted the suit for declaration of her right, title and interest over the suit land and also for recovery of khas possession by evicting the defendants.
(3.) On being summoned, the defendants appeared and submitted written statement denying the case of the plaintiff. The defendants raised objection as to maintainability of suit on the ground of res judicata under Section 11 of the Code of Civil Procedure, defect of parties for non -joinder of all defendants and also under Order 9, Rule 4 of the Code of Civil Procedure. According to the defendants, the plaintiff was never in possession of the land and they have been enjoying the same for last 40 years on assertion of their own right and so title of the plaintiff, if there be any, has been extinguished by way of adverse possession. The dispossession by the defendants on 12.12.1982 has been specifically denied by the defendants in their written statement. Defendants have prayed that suit be dismissed on compensatory cost.;