RSA 66/2011 BEFORE HON’BLE MRS. JUSTICE ANIMA HAZARIKA The appellants herein are the defendants in Title Suit No.2 of 2008 on t he file of the learned Munsiff No.1, Kokrajhar, whereby and whereunder, the lear ned trial court dismissed the suit of the respondent/plaintiff by judgment and d ecree dated 21.05.2010, whereof an appeal was taken on the file of the learned Civil Judge, Kokrajhar being Title Appeal No.8 of 2010 by the plaintiff/responde nt, wherein the learned appellate court set aside the judgment and decree dated 21.05.2010 passed by the learned trial court, thereby remanding the case vide or der dated 23.12.2010 to the learned trial Court by framing an issue as to wheth er the defendants/appellants have been enjoying the suit land by way of adverse possession , directing to dispose of the case afresh by properly adjudicating th e issue is under challenge before this Court where the legality and validity of the judgment and decree dated 23.12.2010 passed in Title Appeal No. 8 of 2010 has been called in question. 2. Heard Mr. G Baishya, learned counsel appearing for the appellants. Also heard Mr. PK Roychoudhury, learned counsel appearing for the respondents. 3. Though the learned counsel appearing for the appellants has formulated f ive substantial questions of law, but allowed to confine only on the following s ubstantial questions of law which are quoted hereunder: - a) Whether the father of the appellants and his family members an d tenants were in peaceful possession of two Bighas of land of village Balajan covered by Dag No. 91 Patta No. 56 since 1948 and 1 Bigha of the said land pos sessed by the appellants was sold to the plaintiff/respondent by sale deed No. 4 51/312 dated 11.05.1988 but the delivery of possession of the land could not be given and the plaintiff also failed to take possession of the same and as such whether there is any cause of action on 10.04.2005? b) Whether the plaintiff/respondent by suppressing the fact of adve rse possession by the appellant since 1948 has filed the Title Suit No. 2 of 200 8 and the appellate court failed to consider the said fact? 4. In order to adjudicate the present appeal properly, brief facts of the c ase is summarized hereinbelow: - The respondent herein as plaintiff brought a suit being Title Suit No.2 of 2008 in the court of the learned Munsiff, Kokrajhar against the defendants ( appellants herein) and one pro forma defendant seeking a decree for declaration of his right and title over the land as described in the schedule of the plain t and for Khas possession over the schedule land (suit land) by evicting the def endants by removing their construction etc. and for permanent injunction restrai ning the defendants from selling out the suit land and change the nature char acter of the suit land. The pleaded facts of the plaintiff in the plaint seeking the reliefs as indicated above is that he has purchased the suit land measuring 1 (one) Bigha s ituated at village Balagaon (Tinali), Mouza 4th Khanda Sidli, revenue circle and District Kokrajhar (BTC), Assam covering Dag No. 91 bearing Periodic Patta No.5 6 from the owner of the land Smti Rani Manjula Devi by deed of sale bearing regi stration No. 451/312 dated 11.05.1998 whereof delivery of possession was handed over to him. But the defendants, in the last part of 2004, were trying to dispos sess him forcefully from a small area of suit land and in fact, the plaintiff wa s dispossessed on 10.04.2005 and hence, the suit seeking the reliefs. 5. The defendants on receipt of the summons have contested the suit by fil ing their written statement contending inter alia that the suit is not maintai nable, there is no cause of action, the suit is bad for non-joinder of necessa ry parties, the suit is barred by limitation, the suit is barred by estoppel, w aiver and acquiescence, the suit is undervalued, etc., but the defendants have a dmitted the land originally belonged to Rani Manjula Devi whereof it is pleaded that the father of the defendant No.1 Debendra Roy adversely occupied the land measuring 2 (two) Bighas covered by Dag No. 91, Miadi Patta No.56 since 1948 continuously and openly and they are living there peacefully and after the deat h of their father the defendant No.1 alongwith his mother were possessing the said land. Though the original owner of the land Rani Manjula Devi sold 1 (one) Bigha of land to the plaintiff out of the abovementioned land, but could not del iver the possession of the land to the plaintiff. As a consequence thereof the plaintiff approached the President of Sree Sree Bishnu Debottar Unnayan Samity, Balagaon on 02.02.2004 with a request to recover the suit land from the possessi on of the appellants (defendants), which, however, was failed though a meeting was called on 03.02.2004 and the plaintiff did not get the possession of the su it land and the same is under the possession of the defendant, hence, prayed for dismissal of the suit, more so, when the boundary of the suit land as menti oned in the plaint is not correct and the plaintiff has got no right, title an d interest over the schedule land as he never got delivery of possession. 6. On the pleadings of the parties the learned trial court framed the follo wing issues: - 1. Whether the suit is maintainable? 2. Is there any cause of action for the suit? 3. Whether the suit is bad for non-joinder of necessary parties? 4. Whether the suit is undervalued? 5. Whether the plaintiff has got right, title and interest over the suit land? 6. Whether the plaintiff is entitled to get a decree of Khas posses sion by evicting the defendants? 7. To what other relief the plaintiff is entitled? 7. During the course of trial, the plaintiff has examined 3 (three) witness es and exhibited some documents, whereas, the defendants have examined 4 (four) witnesses and exhibited 1 (one) document. 8. The learned trial court decided the issue No. 2 in the affirmative but a ll other issues i.e. issue Nos. 1, 3, 4, 5, 6 and 7 were answered in the negativ e holding that the plaintiff has failed to establish his case since he did not g et possession of the land purchased by him at any point of time and the suit bei ng filed in the year 2008, it is apparent on the face of the record that the sui t is barred by limitation. 9. The case was taken to the file of the appellate court under Section 96 o f the Code of Civil Procedure (hereinafter referred to as ’the Code’) being Titl e Appeal No.8 of 2008 wherein the learned appellate court took up the issue N os. 5 and 6 separately. The issue No. 5 deals with the right, title and interes t over the suit. The learned appellate court after taking up the matter consider ed the factum of purchase of the suit land by the plaintiff from Smti Rani Manju la Devi by taking permission from DC, Kokrajhar whereafter the deed of sale was registered. The plaintiff thereafter paid the land revenue and the name of the p laintiff was mutated and these documents were proved and exhibited and hence the issue is answered in the affirmative. But while dealing with the issue No.6 wh ich related to recovery of Khas possession the learned appellate court has held that since the defendant took the plea of adverse possession over the suit land the ingredients of adverse possession i.e. (a) on what date he came into possess ion, b) what was the nature of his possession, c) whether factum of possession w as known to the other party, d) how long his possession continued and e) his pos session was open and undisturbed. The appellate court, therefore, has held since the defendant is trying to defeat the right of the true owner, it is for him to clearly plead and establish of facts necessary to establish his adverse possess ion and therefore, the learned appellate court vide judgment dated 23.11.2010 wh ile allowing the appeal by setting aside the judgment and decree dated 21.5.2010 passed by the learned trial Court remanded the case after framing the following issue, Whether the defendant/respondent has been enjoying the suit land by way of adverse possession . While framing the said issue, the learned appellant court referred Ext-K and directed the trial Court to dispose of the case afresh. The judgment dated 23.11.2010 is under challenge before this Court in the instant appeal. 10. Challenging the legality and validity of the judgment and decree passed by the learned lower appellate court, Mr. Baishya, learned counsel for the appe llant would contend that the pleadings of the contesting parties would reveal that parties entered into trial fully knowing each other’s case and understood what the issues were and in absence of the issue framed by the appellate court did not lead to mistrial sufficient to vitiate the decision when the learned tr ial court after going through the evidence in issue Nos. 5 and 6 has held that the plaintiff has failed to prove his right, title and interest over the suit land thereby did not get Khas possession in the year 1988 and/or thereafter and hence, he is not entitled to get a decree of Khas possession by evicting the d efendants from the suit land and the suit being filed in the year 2008 the suit is barred by limitation; thus the impugned judgment and order require interferen ce being violative of the provisions of Order 6 Rule 2 as well as Order 14 Rule 1 of the Code. 11. The facts pleaded and established by the contesting parties would go to show that the defendant/appellant are in possession of 2 (two) bighas of land since the time of his father from 1948 and 1(one) bigha land had been under t he possession of the appellant which was sold to the plaintiff on 11.05.1988 but the delivery of possession of land could not be given and the plaintiff also f ailed to take possession of the same and thereby waived his right, title and in terest by prescription under Section 65 of the Limitation Act 1963, which, howev er, has been interfered with by the learned appellate court for the lack of issu e being framed on adverse possession and the same thus require interference, con tended by Mr. Baishya, learned counsel appearing for the appellant. 12. The following decisions are referred to by Mr. Baishya in support of his contention: - 1. AIR 1988 SC 2123 (K. Krishna Reddy & Ors. -vs- The Special Dy. C ollector, Land Acquisition Unit II, LMD Karimnagar, AP) 2. 2008 AIR SCW 6996 (Hemaji Waghaji Jat -vs- Bhikhabhai Khengarbha i Harijan & Ors.) 3. AIR 2011 SC 1480, (Chatti Konati Rao and others -vs- Palle Venkata Subba Rao) 4. 1996 (3) GLT 62 (Montu Ghose & Ors. -vs- Amarchand Sarma) 5. 2004 (3) GLT 12 (Anowar Hussain -vs- Mrs. Golapjan & Anr.) 6. 2011 (4) GLT 131, (Niyati Rani Datta -vs- State of Tripura and Ors.) 13. Mr. Roychoudhury, learned counsel appearing for the respondent/plaintiff would contend that the judgment delivered by the learned lower appellate court do not require to be interfered with since the ingredients of Section 65 is abse nt in the pleadings of the appellant and the learned lower appellate court has r ightly remanded the case while deciding the issue Nos. 5 and 6. In support of hi s contention, Mr. Roychoudhury has referred the decision in Hemaji Waghaji Jat - vs- Bhikhabhai Khengarbhai Harijan & Ors. reported in 2008 AIR SCW 6996. In Hema ji (supra), the Apex Court, while endorsing the findings of the first appellate court upheld by the High Court setting aside the judgment of first appellate cou rt being erroneous and unsustainable on the ground that the trial Court had wron gly decreed the suit on the ground of adverse possession, though the appellants at no stage had set up the case of adverse possession, there was no pleading to that effect and no issues were framed. However, while holding thus, the Apex Cou rt has recommended suitable change in the law of adverse possession observing th at the law ought not to benefit a person who in a clandestine manner takes posse ssion of the property of the owner in contravention of law. 14. Considered the argument advanced by the contesting parties. Perused the evidence on record including the pleadings of the parties. Admittedly there was no issue framed relating to adverse possession as pleaded by the appellant in th e written statement. It has also been admitted that the land in question measuri ng 1 Bigha was sold out to the plaintiff on 11.05.1988 by the original owner Ran i Manjula Devi and the possession was delivered to the plaintiff which portion t he defendant denied in the written statement contending that the plaintiff did n ot get the possession even after purchase of the land. But pleaded that in the l ast part of the year 2004 the appellants/defendants tried to dispossess the plai ntiff/respondent and ultimately he was dispossessed from the land on 10.04.2005 and hence the cause of action arose for the suit. 15. The learned trial court while deciding the issue Nos. 5 and 6 has held that the plaintiff has failed to prove his right, title and interest over the suit land as he was not put on possession of the suit land since the date of p urchase, therefore, the decree for Khas possession by evicting the appellants do es not arise and thereby has held that the suit is barred by limitation as h e filed the suit in the year 2008, i.e. after 20 years from the date of purch ase. 16. However, the appellate court took up the issue Nos. 5 and 6 separately. In deciding the issue No.5 after going through the evidence has answered the sai d issue in affirmative. The learned lower appellate court while dealing with t he issue No. 6 which relates to Khas possession over the suit land by evicting the appellants, has held, since the appellants have clearly pleaded that they have been possessing the suit land adversely with his predecessor-in-interest an d after going through the evidence on record thought it proper to frame an issu e whether the defendant/appellant has been enjoying the suit land by way of adv erse possession thereby remanded the case for fresh trial with the issue as fra med by the appellate court and accordingly remanded the case deciding the issue No. 1 in negative. 17. Now the question to be answered by the court is as to whether the learne d appellate court is justified in remanding the case for fresh trial after frami ng an issue relating to adverse possession. The question of adverse possession a nd the elements to be proved commensurate with the starting point of limitation which does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendant’s possession become adverse. Therefore, the defendant/appellant who has claimed adverse possession is to pro ve the following elements namely, hostile intention, long and uninterrupted po ssession and exercise of the right of exclusive ownership openly and to the know ledge of the owner which is lacking in the pleadings of the appellant and ther efore the appellate court has rightly remanded the case for fresh trial on th e issue framed by the learned appellate court, relating to adverse possession wh ich the court do not incline to interfere with. 18. The decision referred to in K. Krishna Reddy (Supra) wherein the Apex Co urt dealt with the matter of compensation including the power of remand by the a ppellate court, where the Apex Court has held that the power of remand should no t be exercised lightly unless evidence is totally lacking. In the case in hand, the ingredients of adverse possession and the evidence thereon is lacking and he nce, the power exercised by the learned appellate court cannot be held to be il legal considering the facts and circumstances of the case. 19. In Hemaji Waghaji (Supra), the Apex Court recommended urgent suitable ch anges in law of adverse possession. Therefore, this Court after going through th e judgment rendered by the Apex Court refrained from discussing the case which m ay, however, influence the decision of the learned trial court after remand. 20. In Chatti Konati (supra), the Apex Court has held that plaintiffs having not proved necessary ingredients to establish therein title by adverse possessi on, rejection of their claim would be proper. There is no dispute over the above proposition of law. In the instant case, in hand, the learned appellate court h as held that since the defendants/appellants took the plea of adverse possession over the suit land, but have not proved necessary ingredients to establish thei r title by adverse possession though it is for them to clearly plead and establi sh of facts necessary to establish his adverse possession, which fact was not de alt with by the learned trial court, hence, remanded the case after framing the issue. The decision is thus squarely applicable in the case in hand. 21. The decision in Mantu Ghosh and others (Supra) which is relied on by the counsel for the appellant relates to Order 20 Rule 5 of the Code, wherein the c ourt has held that the trial court has ample jurisdiction to give finding on a p articular point or matter without framing a specific issue if the court finds su fficient materials or evidence on record for deciding such point. There is no am biguity on the above proposition of law but the judgment rendered by the learn ed trial court has not dealt with the matter of adverse possession as required under Article 65 of the Limitation Act 1963 and therefore, the case referred i s not applicable in the case in hand. 22. The decisions cited and reported in Anowar Hussain (Supra) and Niyati Du tta (supra), wherein the court has held that when the parties enter into trial fully knowing each other’s case and lead evidence in support of their respective claims regarding right, title and interest with regard to the suit property, a bsence of an issue is not fatal unless prejudice is shown, which is no more res integra and there is no dispute over the above proposition of law. But the lear ned lower appellate court has dealt with the matter, more particularly the evide nce on record and deem it fit to remand the case since there is lack of evidence relating to Animus possidendi i.e. intention to possess and exclude others is necessary for acquisition of title by adverse possession and hence the case wou ld not be applicable in the instant case. 23. Taking into consideration the factual matrix in its entirety, this Court holds that the judgment and decree passed by the learned lower appellate court, remanding the case for fresh trial after framing an issue relating to adverse p ossession requires no interference as no illegality has been committed by the le arned lower appellate court in arriving at such findings. 24. In the result, this Court is not inclined to interfere with the judgment rendered by the learned lower appellate court and the appeal being found devoid of any merit, the same is dismissed.