Anima Hazarika, J.- The appellants herein are the defendants in Title SuitNo.2 of 2008 on the file of the learned Munsiff No. 1, Kokrajhar, whereby and whereunder, the learned trial Court dismissed the suit of the respondent/plaintiff by judgment and decree 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/respondent wherein the learned appellate court set aside the judgment and order dated 21.05.2010 passed by the learned trial court, thereby remanding the case vide order dated 23.12.2010 to the learned trial Court by framing an issue as to "whether the defendants/appellants have been enjoying the suit land by way of adverse possession", directing to dispose of the case afresh by properly adjudicating the issue is under challenge before this Court where the legality and validity of from selling out the suit land and change the the judgment and decree dated 23.12.2010 nature character of the suit land, passed in Title Appeal No. 8 of 2010 has The pleaded facts of the plaintiff in the been called in question. 2. Heard Mr. G. Baishya, learned counsel appearing for the appellants. Also heard Mr. P.K. Roychoudhury, learned counsel appear­ing for the respondents. 3. Though the learned counsel appearing for the appellants has formulated five substan­tial questions of law, but allowed to confine only on the following substantial questions of law which are quoted hereunder: - "a) Whether the father of the appellants and his family members and 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 pos­sessed by the appellants was sold to the plain­tiff/respondent by sale deed No. 451/312 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 10.042005? b) Whether the plaintiff/respondent by sup­pressing the fact of adverse possession by the appellant since 1948 has filed the Title Suit No. 2 of 2008 and the appellate court failed to con­sider the said fact?" 4. b) Whether the plaintiff/respondent by sup­pressing the fact of adverse possession by the appellant since 1948 has filed the Title Suit No. 2 of 2008 and the appellate court failed to con­sider the said fact?" 4. In order to adjudicate the present ap­peal property, brief facts of the case 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 plaint and for Khas possession over the schedule land (suit land) by evicting the defendants by removing their construction etc. and for per­manent injunction restraining the defendants from selling out the suit land and change the nature character 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 situated at village Balagaon (Tinali), Mouza 4th Khanda Sidli, revenue cir­cle and District Kokrajhar (BTC), Assam covering Dag No. 91 bearing Periodic Patta No.56 from the owner of the land Smti Rani Manjula Devi by deed of sale bearing regis­tration 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 dispossess him forcefully from a small area of suit land and in fact, the plaintiff was 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 filing their written statement contending inter alia that the suit is not maintainable, there is no cause of action, the suit is bad for non-joinder of nec­essary parties, the suit is barred by limitation, the suit is barred by estoppel, waiver and acquiescence, the suit is undervalued, etc., but the defendants have admitted 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 PattaNo.56 since 1948 continuously and openly and they are living there peacefully and after the death 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 deliver 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 possession 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 suit 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 mentioned in the plaint is not correct and the plaintiff has got no right, title and 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 following issues: - (1) Whether the suit is maintainable? (2) Is there any cause of action for the suit? (3) Whether the suit is bad for nonjoinder 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 possession 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) witnesses 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 all other issues i.e. issue Nos. 1,3,4, 5,6 and 7 were answered in the negative holding that the plaintiff has failed to establish his case since he did not get possession of the land purchased by him at any point of time and the suit being filed in the year 2008, it is apparent on the face of the record that the suit is barred by limitation. 9. The case was taken to the file of the appellate Court under Section 96 of the Code of Civil Procedure (hereinafter referred to as 'the Code') being Title Appeal No.8 of 2008 wherein the learned appellate court took up the issue Nos. 5 and 6 separately. 9. The case was taken to the file of the appellate Court under Section 96 of the Code of Civil Procedure (hereinafter referred to as 'the Code') being Title Appeal No.8 of 2008 wherein the learned appellate court took up the issue Nos. 5 and 6 separately. The issue No. 5 deals with the right, title and interest over the suit. The learned appellate court after taking up the matter considered the factum of purchase of the suit land by the plaintiff from Smti Rani Manjula Devi by taking permission from DC, Kokrajhar where after the deed of sale was registered. The plaintiff thereafter paid the land revenue and the name of the plaintiff 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 which 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 possession, (b) what was the nature of his possession, (c) whether factum of possession was known to the other party, (d) how long his possession continued and (e) his possession 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 possession and therefore, the learned appellate Court vide judgment dated 23.11.2010 while 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. 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 appellant 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 trial 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 defendants 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 requires interference 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 the possession of the appellant which was sold to the plaintiffon 11.05.1988 but the delivery of possession of land could not be given and the plaintiff also failed to take possession of the same and thereby waived his right, title and interest by prescription un-der Section 65 of the Limitation Act 1963, which, however, has been interfered with by the learned appellate Court for the lack of issue being framed on adverse possession and the same thus require interference, contended 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. Collector, Land Acquisition UnitII, LMD Karimnagar, AP. (2) 2008 AIR SCW 6996:Hemaji WaghajiJat Vs. Bhikhabhai Khengarbhai Harijan & Ors. 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. Collector, Land Acquisition UnitII, LMD Karimnagar, AP. (2) 2008 AIR SCW 6996:Hemaji WaghajiJat Vs. Bhikhabhai Khengarbhai Harijan & Ors. (3) AIR 2011 SC 1480 : Chatti Konati Rao & .Ors. Vs. Palle Venkata Subba Rao. (4) 1996 (3)GLT62: Montu Ghose & Ors. Vs. Amarchand Sarma (5) 2004 (3) GLT12: Anowar Hussain Vs. Mrs. Golapjan & Anr. (6) 2011 (4)GLT 131: Niyati Rani Datta Vs. State of Tripura & 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 absent in the pleadings of the appellant and the learned lower appellate Court has rightly remanded the case while deciding the issue Nos. 5 and 6. In support of his contention, Mr. Roychoudhury has referred the decision in Hemaji WaghajiJat Fs. Bhikhabhai Khengarbhai Harijari & Ors. reported in 2008 AIR SCW 6996. In Hemaji (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 court being erroneous and unsustainable on the ground that the trial Court had wrongly 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 Court has recommended suitable change in the law of adverse possession observing that the law ought not to benefit a person who in a clandestine manner takes possession 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 the written statement. 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 the written statement. It has also been admitted that the land in question measuring 1 Bigha was sold out to the plaintiff on 11.05.1988 by the original owner Rani Manjula Devi and the possession was delivered to the plaintiff which portion the defendant denied in the written statement contending that the plaintiff did not get the possession even after purchase of the land. But pleaded that in the last part of the year 2004 the appellants/defendants tried to dispossess the plaintiff/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 purchase, therefore, the decree for Khas possession by evicting the appellants does not arise and thereby has held that the suit is barred by limitation as he filed the suit in the year 2008, i.e. after 20 years from the date of purchase. 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 said issue in affirmative. The learned lower appellate Court while dealing with the 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 and after going through the evidence on record thought it proper to frame an issue whether the defend-ant/appellant has been enjoying the suit land by way of adverse possession thereby remanded the case for fresh trial with the issue as framed 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 learned appellate Court is justified in remanding the case for fresh trial after framing an issue relating to adverse possession. 17. Now the question to be answered by the Court is as to whether the learned appellate Court is justified in remanding the case for fresh trial after framing an issue relating to adverse possession. The question of adverse possession and 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 prove the following elements namely, hostile intention, long and uninterrupted possession and exercise of the right of exclusive ownership openly and to knowledge of the owner which is lacking in the pleadings of the appellant and therefore the appellate Court has rightly remanded the case for fresh trial on the issue framed by the learned appellate Court, relating to adverse possession which the Court do not incline to interfere with. 18. The decision referred to in K. Krishna Reddy (supra) wherein the Apex Court dealt with the matter of compensation including the power of remand by the appellate court, where the Apex Court has held that the power of remand should not 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 hence, the power exercised by the learned appellate Court cannot be held to be illegal considering the facts and circumstances of the case. 19. In Hemaji Waghaji (supra), the Apex Court recommended urgent suitable changes in law of adverse possession. Therefore, this Court after going through the judgment rendered by the Apex Court refrained from discussing the case which may, 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 possession, rejection of their claim would be proper. There is no dispute over the above proposition of law. 20. In Chatti Konati (supra), the Apex Court has held that plaintiffs having not proved necessary ingredients to establish therein title by adverse possession, 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 has held that since the defendants/appellants took the plea of adverse possession over the suit land, but have not proved necessary ingredients to establish their title by adverse possession though it is for them to clearly plead and establish of facts necessary to establish his adverse possession, which fact was not dealt 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 & Ors. (supra) which is relied on by the counsel for the appellant relates to Order 20 Rule 5 of the Code, wherein the Court has held that the trial Court has ample jurisdiction to give finding on a particular point or matter without framing a specific issue if the Court finds sufficient materials or evidence on record for deciding such point. There is no ambiguity on the above proposition of law but the judgment rendered by the learned 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 is not applicable in the case in hand. 22. The decisions cited and reported in Anowar Hussain (supra) and Niyati Dutta (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, absence 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 learned lower appellate Court has dealt with the matter, more particularly the evidence 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 would not be applicable in the instant case. 23. 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 possession requires no interference as no illegality has been committed by the learned 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.