An appellate court must not reverse a judgment based on a misreading of pleadings or findings that are contrary to established facts. A decree for possession is maintainable when title is admitted and the prayer for recovery is explicitly present in the plaint.

JUDGMENT :

ROBIN PHUKAN, J.

Heard Mr. P.A. Rongmei, learned counsel for the appellant. Also heard Ms. B.M. Chhetri, learned counsel for the respondent.

2. This second appeal, under Section 100 CPC, is directed against the judgment dated 18.01.2023 and decree dated 30.01.2023, passed by the learned Civil Judge, Karbi Anglong, Diphu, passed in Title Appeal No. 7/2022.

3. It is to be noted that vide impugned judgment dated 18.01.2023 and decree dated 30.01.2023, the learned Civil Judge, Karbi Anglong, Diphu (‘first appellate Court’, for short) had allowed the appeal and reversed the judgment dated 23.12.2021 and decree dated 04.01.2022, passed by the learned Munsiff No. 1, Karbi Anglong, Diphu (‘trial Court’, for short), in Title Suit No. 6/2004 (old) and Title Suit No. 52/2017 (new).

4. For the sake of convenience and also for avoiding any confusion, the designation of the parties before the learned trial Court is adopted in this appeal.

5. The background facts, leading to filing of the present appeal, are briefly stated as under:

“The plaintiff, in the year 1993, purchased a portion of land from the defendant measuring 2 kathas out of 1 bigha 3 kathas, bearing Dag No. 454 and 54, Survey P.P. No. 6, Mouza Borjan. The defendant herein had given boundary in the year 1993 and the plaintiff had not constructed any kaccha/pucca boundary structure of the said portion of the land. Thereafter, sometime in month of November 2003, the plaintiff, along with her husband went to Kiphire, Nagaland, where her husband was serving in police department, and after returning from Kiphire, she found illegal activities and development work undertaken by the defendant. The plaintiff then approached and requested the defendant to remove the new kaccha structure from the land of the plaintiff, but the defendant had paid no heed to the said request. Thereafter, on 27.02.2004, the plaintiff had submitted an application before the Settlement Officer, Karbi Anglong, Diphu for demarcation of her land and in that regard, the plaintiff had received a copy of jamabandi and sketch map dated 25.06.2004 pertaining to her land, wherein the copy of jamabandi bears the note checked and measurement as 2 kathas, covered by Periodic Patta No. 9, Dag No. 99 of village Nirmal Tea Estate, Mouza Borjan, Diphu Circle.

Thereafter, the plaintiff had filed a suit, being Title Suit No. 6/2004 (old) and Title Suit No. 52/2017 (new) before the learned trial Court for right and part possession of the land measuring an area of 1252 sq. ft. (13.6 ft. width to East and West and 92 ft. in North and South) against the defendant who had illegally encroached southern portion of the plaintiff’s land.

The defendant had entered appearance and contested the suit by filing written statement, wherein he had denied the allegation of encroachment of any plot of land of the plaintiff. The defendant had admitted that the plaintiff had purchased 2 kathas of land, and it is also stated that the defendant has no objection if a decree is passed by the Court in respect of 2 kathas of land.

Upon the pleadings of the parties the learned trial Court had framed following issues :-

1. Whether there is cause of action for filing the suit?

2. Whether the suit is maintainable in its present form and manner?

3. Whether the transfer of the land by defendant to the plaintiff is valid as per provisions of law?

4. Whether the plaintiff has right, title and interest over the suit land mentioned in the schedule of the plaint?

5. Whether the defend