(1.) This Second Appeal is so preferred u/s 100 of the CPC by the appellant/defendant being aggrieved and dissatisfied with the Judgment followed by a decree so passed in Title Appeal No. 17/87 dated 30.3.90 which is a judgment of reversal and while allowing the appeal so preferred by the present Respondent/plaintiff, the first appellate court had set aside the Judgment & Decree so passed by the court of the first instance in Title Suit.No. 13/82 dated 31.7.84 by virtue of which, the court of the first instance had dismissed the suit.
(2.) It further transpires that the present Respondemt/plaintiff had filed the said Title Suit No. 13/82 for the ejectment of the present appellant/defendant from 12 Lecha of land out of Dag No.. 344 of KP patta No. 18 situated at village Moiangaon, District; Sibsagar. Such ejectment was so sought for on two grounds, firstly, for recovery, of the arrear of rent and mesne profit and also on bonafide requirement. It was also the case of the plaintiff that initially 13 notice of such ejectment was so sent to the defendant on 3.5.79 specifying a particular time as to vacate the premises but since the same was not done, the plaintiff had no alternative but to take the shelter of the court by filing Title Suit No. 13/82. The defendant's case so put before the court of the first instance in short, was that as a matter of fact the tenancy was for 1 katha 12 lechas which was so given by plaintiffs father and because of his retaining said pie'ce of land for more than three years he had accured occupancy right u/s 5 of the Assam Temporarily(Settled Area) Tenancy Act. 1971 and if any ejectment was to be done, that was only to be done under the provisions of Section 51(1) of the said Act and not because of in any way becoming defaulter in paying the rent. In course of trial of the said proceeding T. S. No. 13/82 it further transpires that on behalf of the plaintiffs two witnesses and on behalf of the defendants four witnesses were so examined in chief and cross-examined and the court of the first instance though dismissed the suit but when the appeal was so preferred by the Respondent/plaintiff the suit was; so decreed in favour of the plaintiff holding that as regards the 12 lechas of land, its nature being homestead (having-dwelling houses thereupon) the provisions of the said Act would not apply and taking that view the first appellate court had decreed the suit in favour of the Respondent/plaintiff, hence the other side i.e. appellant/defendant has preferred this Second Appeal being aggrieved by the Judgment of reversal so passed by the first appellate court in Title Appeal No. 17/87.
(3.) At the time of admission of this SA, it further transpires that two substantial questions of law were so formulated and they are-as to whether the impugned Judgment of reversal is in accordance with law and also as to whether the learned court belcow erred in law in not taking into consideration the provisions of Section 51(1) of the Assam Temporarily (Settled Area) Tenancy Act, 1971?