The determination of the cause of action and the opportunity for both parties to present evidence are crucial for ensuring a fair trial.

JUDGMENT :

Heard Mr. Johny L. Tochhawng, learned counsel for the appellant along with Ms. Lalawmpuii Fanai, learned counsel for respondent No.1.

2. Mrs. Mary L. Khiangte, learned Govt. Advocate for the State respondent Nos. 2 to 5 submits that they have nothing to submit in this matter since the dispute is mainly between the appellant and the respondent No.1.

3. This is an appeal filed under against the Order dated 07.12.2021 passed by the Senior Civil Judge-I, Aizawl District in Civil Suit No.56 of 2020.

4. The learned Trial Court had passed the impugned order directing the defendant No.1/appellant not to encroach the landed property belonging to the Plaintiff/respondent No.1 covered by LSC No.AZL-54 of 1981 located at Ramhlun Veng, Aizawl, Mizoram.

5. Mr. Johny L. Tochhawng, the learned counsel for the appellant submits that the trial court had passed the impugned order without giving the opportunity to neither of the parties to adduce the evidence in the court, but had passed its order based on the plaint and the written statement submitted and at the stage of hearing of the maintainability of the Civil Suit. The learned trial court had wrongly observed that the plaintiff submitted that the cause of action first arose, when the LSC No.AZL-54 of 1981 was issued in favour of the Plaintiff/appellant on 16.02.1981 by slicing out the land from the Defendant No.1’s/respondent No.1 LSC No.704 of 1980.

6. The learned counsel for the appellant submits that the learned trial court had then observed that the counsel for the Defendant No.1/respondent had submitted that the suit was barred by limitation since the LSC was slice out in the year 1981 and therefore the suit was filed after 39 years. The learned trial court also held that the Defendant No.1/respondent did not encroach the plaintiffs/appellant land as per the spot verification reports conducted by the Surveyor, Land Revenue & Settlement Department. The learned trial court observed that the report was not challenged by the appellant and that the challenging the demarcation of boundary of the plaintiffs LSC now is barred by limitation.

7. Mr. Johny L. Tochhawng, learned counsel for the appellant submits that the learned trial court had erred in making the above observation since the appellant in the plaint filed before the learned trial court had clearly mentioned at para 6 that:

“On April 2019, the plaintiff had decided to sell her landed property thereby visiting the spot with the prospective buyer for verification of its genuineness. However, to the uttermost surprise, the plaintiff came to learn that the defendant No. 1 shifted a boundary pillars inside her landed property by encroaching about 15 feet of her land. Upon the actions of the defendant No. 1, the plaintiff served a notice under Section 80 of Code of Civil Procedure to the defendant Nos. 1 to 5 to solve the matter and re-issued LSC No. AZL-54/1981 (Vide No. 1783 dt. 01-05-2019).”

The learned counsel therefore, he submits that the cause of action arose not in 1981 but in the year 2019. He further submits that the appellant was not aware of the verification report submitted by the Surveyor which was attached to written statement filed by the Defendant/respondent and therefore he could not have challenged the said verification report. He further submits that on perusal of the verification report shows that it is not clear whether or not the respondent had encroached upon the land owner.

8. The learned counsel thus submits that the impugned order dated 07.12.2021 may be set aside and the matter may be referred back to the learned trial court by giving the parties the opportunity to adduce evidence.

9. Ms. Lalawmpuii Fanai, learned counsel for the respondent No.1 on the other hand submits that there were no grounds to interfere or remand the matter back to the learned trial court. She submits that the cause of action arose way back in 1981 when the LSC No. 704 was slice out in 2 LSCs i.e. 704/1980 and 54/1981. She submits that t