Research › Search › Judgment

Gauhati High Court · body

2011 DIGILAW 610 (GAU)

Niyati Rani Datta v. State of Tripura

2011-07-22

C.R.SARMA

body2011
JUDGMENT C.R. Sarma, J. 1. This appeal, preferred under Section 100 of the Code of Civil Procedure (for short, 'CPC)' is directed against the judgment and order dated, 10-11-99, passed by the learned Addl. District Judge, North Tripura, Dharmanagar in Title Appeal No. 05 of 1998, whereby and where under the learned first appellate court reversed the judgment and decree, dated 23-8-97, and 4-9-97 passed by the learned Civil Judge (Sr. Division) in T.S. No. 52 of 1996. 2. I have heard Mr. A. K. Bhowmik, learned Senior counsel assisted by Mr. S. Datta, appearing for the Appellant. Also heard Mr. S.C. Das, learned Counsel appearing for the Respondents. 3. The Plaintiff's case, in brief, may be stated as follows: The predecessor-in-interest of the Appellant instituted Title Suit No. 52 of 1996 seeking declaration of his right, title, interest and recovery of khas possession and perpetual injunction in respect of the suit land. According to the Plaintiff, he got allotment in respect of a plot of land measuring.074 acre, covered by plot No. 7072/9588(p), vide allotment dated 2-11-63. This land has been fully mentioned in Schedule A to the plaint and in respect of the this land, the Plaintiff obtained a khatian and he continued to possess the same, by developing the land. During the settlement operation, though a considerable portion of the said land was recorded in the khas khatian, the Plaintiff filed an objection case, being 38 of 1966, under Section 43(1) of TLR & LR Act,1960 and on the basis of the said objection, the court of Asst. Survey & Settlement officer, Dharmanagar, vide order dated 8-1-69, correctly recorded the said land in the name of the Plaintiff, vide khatian 3276. The Public Works Department i.e. the Respondents dispossessed the Plaintiff from the suit land, on 20-6-94, by erecting a boundary fencing and accordingly, the Plaintiff, causing service of notice, under Section 80 Code of Civil Procedure, instituted T.S. 63 of 1969 in the court of Munsiff, Dharmanagar for recovery of possession. Subsequently, the Defendants-Respondents had removed the bamboo fencing and the Plaintiff also withdrew the T.S. 63 of 1969 on 3-11-71, following which the Defendants-Respondents handed over possession of the land to the Plaintiff, by removing the fencing, on 15-11-71. When the Plaintiff was possessing the said land, the Executive Engineer, PWD, Northern Division, Dharmanagar i.e. Defendant-Respondent No. 4 filed a Misc. When the Plaintiff was possessing the said land, the Executive Engineer, PWD, Northern Division, Dharmanagar i.e. Defendant-Respondent No. 4 filed a Misc. case, under Section 11(3) of TLR & LR Act, 1960 seeking correction of record of rights and the Revenue Authority, by order dated 20-4-79, declared that the record of right maintained in favour of the Plaintiff was correct. However, on 2-12-96, the Defendant-Respondent No. 4 started construction of a semi permanent hut on the south eastern part of the A schedule land. Protesting the said action, on the part of the Defendant-Respondent No. 4, the Plaintiff, on 9-12-96, filed an objection, but the Defendant-Respondent No. 4 continued with the construction of the hut and thus, dispossessed the Plaintiff from the B Schedule land which is a part of the A Schedule land. According to the Plaintiff, the Defendant-Respondent No. 4, his men and agents tried to dispossess the Plaintiff from the remaining part of the A Schedule land i.e. the land described in Schedule D to the plaint. According to the Plaintiff, the cause of action arose on 7-12-96, 9-12-96 and 13-12-96. Hence, the Plaintiff instituted Title Suit No. 5 of 1996 seeking a declaration that he has right, title, interest and possession over the D Schedule land that the Plaintiff is entitled to get vacant position of the B Schedule land. The Plaintiff has also prayed for a perpetual injunction restraining the Defendant-Respondent No. 4 and his men and agents from entering the D Schedule land. 4. The Defendants, by filing a written statement, contested the Plaintiff's claim. Their plea was that the suit land was, all along, in possession of the Defendants since 1953 and that in view of withdrawal of Plaintiff's T.S. 63 of 1969, on 3-11-71, the present one was hit by the principle of stopple. In their written statement, the contesting Defendants averred that the suit was barred by the law of Limitation, that the same was not maintainable and that the suit was bad for principle of waiver and acquiescence. Denying the allegation of dispossession, made by the Plaintiff, the answering Defendants contended that they were possessing the suit land, exercising their right of adverse possession against the interest of others for more than the statutory period, to the full knowledge of the Plaintiff and the neighbourers. 5. Denying the allegation of dispossession, made by the Plaintiff, the answering Defendants contended that they were possessing the suit land, exercising their right of adverse possession against the interest of others for more than the statutory period, to the full knowledge of the Plaintiff and the neighbourers. 5. Upon the pleadings of both the parties, the learned trial Judge framed the following issues: (i) Is the suit maintainable in its present form ? (ii) Is there any cause of action for this suit ? (iii) Has the Plaintiff right, title, interest and possession over the D schedule land ? (iv) Is the Plaintiff entitled to recover possession of B Schedule land removing structure on it ? (v) If the record of right regarding C schedule land correct or incorrect ? (vi) Are the parties entitled to get any other relief or costs ? 6. The Plaintiff in support of his case examined himself and two witnesses as PW Nos. 1 to 3. The Defendants also examined one witness as DW 1, in support of their plea. Both the parties exhibited certain documents, including the khatian and the orders issued by the Revenue authority. The learned trial Judge, considering the evidence on record, decreed the Plaintiff's suit thereby holding that the Plaintiff had right, title and interest in respect of the suit land and that he was entitled to recover possession of the land described in Schedule B to the plaint by evicting the Defendants-Respondents there from. 7. Aggrieved by the said judgment and decree, the Defendants, as Appellants, preferred an appeal being Title Appeal No. 05 of 1998 challenging the impugned judgment and decree aforesaid. The grounds taken in the appeal amongst others, were that the learned trial Judge mis-appreciated the law as well as the evidence that the learned trial Judge traveled beyond the pleadings and the evidence adduced by the parties, while passing the impugned judgment and decree, that the issues were not correctly framed, that the decisions made in favour of the Plaintiff caused serious prejudice to the Defendants-Appellants, that the Plaintiff failed to establish his case by adducing independent evidence and that the learned trial Judge committed error by decreeing the suit in favour of the Plaintiff. It has also been contended, in the said appeal, that the learned trial Judge failed to ascertain the fact regarding possession, in respect of the suit land, and also failed to correctly appreciate the effect of withdrawal of the Title Suit No. 63 of 1969. It has also been contended that the learned trial Judge committed error by deciding the Issue Nos. 3 and 4 in favour of the Plaintiff. 8. The learned Addl. District Judge, by the impugned judgment and order, reversed the judgment and decree, passed b y the learned trial Judge, holding that the Plaintiff failed to establish his claim regarding his possession in respect of the said suit land. While observing that the Plaintiff could unequivocally prove that he was the owner of the suit land, in as much as he got the land from the government on the strength of the allotment order, the learned Addl. District Judge reversed the impugned judgment and decree, holding that the Plaintiff brought the suit after the expiry of the stipulated period of twelve years and as such the same was liable to be dismissed on the ground of Limitation. The learned first appellate court also observed that the suit was barred by law of acquiescence. 9. Dissatisfied with the said judgment and decree, the Plaintiff, as Appellant, has come up with this second appeal, contending, inter alia, that the learned first appellate court committed gross illegality and error, in the eye of law, by holding that the Plaintiff's suit for recovery of possession on the basis of title was barred by the law of Limitation. It has also been contended that the learned first appellate court erroneously held that the suit was brought under the Article 64 of the Limitation Act and that the learned trial Judge failed to appreciate that in view of handing over of the possession of the suit land the Title Suit No. 63 of 1969 was withdrawn and that the subsequent dispossession compelled the Plaintiff to bring this suit. It has also been contended that due to failure of the Defendants-Respondents to establish the ingredients of adverse possession and the claim being made on the basis of title, the learned first appellate court should not have interfered with the impugned judgment and order, passed by the learned trial Judge. 10. It has also been contended that due to failure of the Defendants-Respondents to establish the ingredients of adverse possession and the claim being made on the basis of title, the learned first appellate court should not have interfered with the impugned judgment and order, passed by the learned trial Judge. 10. The appeal has been admitted for hearing on the following substantial questions of law: Whether the first appellate court committed any error of law in reversing the finding of the learned trial court below on the question of limitation for the relief of recovery of possession under the law. 11. Mr. A. K. Bhowmik, learned Senior counsel appearing for the Appellant, has submitted that, the Appellant/Plaintiff having established her title over the suit land, by way of allotment, and in view of the findings given by the learned first appellate court that the Plaintiff got the suit land from the Government of Tripura, on the strength of allotment and the suit being brought for recovery of possession on the basis of title, the learned trial Judge committed gross error by holding that the suit was barred by law of Limitation, in as much as there is evidence, on record, to show that the Defendants/Respondents had handed over possession on 15-11-1971 and that the Plaintiff was dispossessed on 13-12-96.. The learned Senior counsel submitted that Plaintiff's suit, being a suit under Article 65 of the Limitation Act, it was the burden of the Defendants to establish that they acquired the right by way of adverse possession and that in view of their failure to establish the plea of adverse possession, against the Plaintiff, the learned Addl. District Judge ought not to have interfered with the judgment and decree, passed by the learned trial Judge. Mr. Bhowmik, learned Senior counsel has also submitted that the learned Judge of the first appellate court committed error by heavily relying on the Ext No. B i.e. the application written by the Respondent to the Hon'ble Prime Minister and arriving at the finding on the basis of Ext.B, that the Plaintiff was not possessing the suit land at any point of time. In support of his submission, the learned Senior counsel has relied on the following decisions: (1) P.T. Munichikkanna Reddy and Ors. v. Revamma and Ors. reported in (2007) 6 SCC 59 ; (2) Bhavnagar University v. Palitana Sugar Mill (P) Ltd. and Ors. In support of his submission, the learned Senior counsel has relied on the following decisions: (1) P.T. Munichikkanna Reddy and Ors. v. Revamma and Ors. reported in (2007) 6 SCC 59 ; (2) Bhavnagar University v. Palitana Sugar Mill (P) Ltd. and Ors. reported in (2003) 2 SCC 111 ; (3) Elias Ali Qidwai and Ors. v. Special Manager, Court of Wards, Balrampur Estate and Ors. reported in AIR 1935 PC 53; (4) Bondar Singh and Ors. v. Nihal Singh and Ors. reported in (2003) 4 SCC 161 ; (5) M. Durai v. Mithu and Ors. reported in (2007) 3 SCC 114 ; (6) Smt. Sapam Ongbi Loidang Devi and Anr. v. Smt. Takhelkumbam Ongbi Rajkumari Monosana Devi and Ors. reported in AIR 2005 Gau. 101 . 12. Mr. S. C. Das, the learned Counsel appearing for the Respondent controverting the argument, advanced by the learned Senior counsel, appearing for the Appellant has submitted that, though the land was allotted in favour of the Plaintiff, the Respondent was, all along, possessing the said land claiming the same to be their property and by raising construction thereon. The learned Counsel, denying the Plaintiff's claim that the possession was given to the Plaintiff on 15-11-71 has contended that as the Plaintiff had withdrawn Title Suit No. 63 of 69 filed for recovery of possession, without any leave to re-file, the second suit i.e. Title Suit No. 52 of 1996 was not maintainable. The learned Counsel further submitted that the Plaintiff's claim that the possession was given on 15-11-71 is belied by the Ext.B, wherein the Plaintiff, on 2-11-1974 (i.e. the date of the application) stated that the Respondent i.e. the P.W. Department forcefully occupied the land from 1965. The learned Counsel further submitted that the suit land, being Government land, and occupied by the PWD, the claim regarding delivery of possession by the PWD to a private person is not believable. The learned Counsel, appearing on behalf of the Respondent, supporting the impugned judgment and order has submitted that the learned first appellate court rightly reversed the judgment and decree, passed by the learned trial Judge and therefore, the impugned judgment and order does not warrant any interference for want of any substantial question of law. In support of his contention, the learned Counsel has relied on the following decisions: (1) L.J. Leach and Co. Ltd. and Anr. v. Messrs. In support of his contention, the learned Counsel has relied on the following decisions: (1) L.J. Leach and Co. Ltd. and Anr. v. Messrs. Jardine Skinner and Co. reported in AIR 1957 SC 357 ; (2) Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil and Ors. reported in AIR 1957 SC 363 ; (3) Nedumuri Kameswaramma v. Sampati Subba Rao reported in AIR 1963 SC 884 ; (4) Swamy Atmananda and Ors. v. Sri Ramakrishna Tapovanam and Ors. reported in (2005) 10 SCC 51 ; (5) Noharlal Verma v. District Cooperative Central Bank Limited, Jagdalpur reported in (2008) 14 SCC 445 ; (6) R.K. Tombi alias Tombisana Singh v. R.K. Maipaksana Singh and Ors. reported in (2002) 3 GLR 9. 13. The Appellant-Plaintiff's claim that the suit land was allotted in his father's name by the Government is an undisputed fact. The first appellate court also held that the Plaintiff could establish the allotment and, therefore, admittedly the title of the suit land stood in the name of the Plaintiff. Hence, the suit being brought on the basis of the title, the same was covered by Article65 of the Limitation Act. The only defence available to the Defendant, to defeat the Plaintiff's claim, was to establish that they acquired right by way of adverse possession. Therefore, this Court is required to examine if the plea of adverse possession raised by the Defendant, ripened in favour of the Defendants. 14. The principles regarding acquiring right by way of adverse possession, has been well settled in a catena of decisions. 15. In the case of P.T. Munichikkanna Reddy (supra), the Supreme Court held that, mere possession for howsoever length of time does not amount to adverse possession, unless it is shown that the possession is adverse to the right of the true owner for the stipulated period. Therefore, as held in the case of Karnataka Board of Wakf v. Govt. of India reported in (2004) 10 SCC 779 , the plea of adverse possession is not a pure question of law, but a blended one of fact and law. Therefore, as held in the case of Karnataka Board of Wakf v. Govt. of India reported in (2004) 10 SCC 779 , the plea of adverse possession is not a pure question of law, but a blended one of fact and law. A person claiming adverse possession is required to establish (i) the date on which he came into possession, (ii) the nature of his possession, (iii) whether the factum of possession was known to the other party, (iv) how long the possession continued and lastly (v) that his possession, which was adverse to the interest of the true owner was open and undisturbed. 16. In the above referred case, it has been observed that, a person pleading adverse possession has no equities in his favour, since he wants to defeat the rights of the true owner. Therefore, the burden lies on the Defendant, who claims adverse possession to clearly plead and establish all necessary facts to show that he acquired right by way of adverse possession. The right of property, apart from being a constitutional or statutory right, is also a human right. This right can be defeated only by due process of law. Therefore, to claim right by way of adverse possession, it must be proved by the other party that his possession was open, continuous for the statutory period and hostile to the interest of the true owner. 17. In the case of Bhavnagar University (supra), it has been held that, a owner of a property, subject to reasonable restrictions, which may be imposed by the legislature, is entitled to enjoy the property in any manner he likes. A right to use a property in a particular manner or in other words a restriction imposed on user thereof except in the mode and manner laid down under the statute would not be presumed. 18. Therefore, in the case at hand, as the suit land was allotted by the Government, in favour of the Plaintiff, the Plaintiff had the lawful right to enjoy the same unless his right was taken away by due process of law. The allotment aforesaid itself indicates that the land was given to the Plaintiff by the appropriate authority by due process of law, conferring title. There is nothing on record to show that, his allotment was either cancelled or that the land was acquired by the Government as per law. The allotment aforesaid itself indicates that the land was given to the Plaintiff by the appropriate authority by due process of law, conferring title. There is nothing on record to show that, his allotment was either cancelled or that the land was acquired by the Government as per law. Therefore, the plea of the Defendants that the land was not given to the Plaintiff can't be accepted. 19. In the case of Elias Ali Qidwai (supra), the Supreme Court observed: The principle of law is firmly established that a person, who bases his title on adverse possession, must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to a denial of his title to the property claimed. 20. In the case of Bondar Singh (supra), the Supreme Court observed that, in order to establish the plea of adverse possession, there must be clear and clinching evidence on record to show that the person claiming adverse possession, was in continuous and uninterrupted possession of the suit land and that he had been setting up a hostile title against the true owner. 21. In the case of M. Durai (supra), the Supreme Court observed that, once the Plaintiff proves his title, the burden shifts to the Defendant to establish that he has perfected his title by way of adverse possession. 22. In the case of Smt. Sapam Ongbi Loidang Devi (supra), a learned Single Judge of this Court, observed that, law is well settled that, adverse possession is to be claimed from a definite point of time (starting point) and is to be shown to have run out the limitation period of 12 years from the date of inception to ripening into a title by prescription on the strength of possession. That apart, as observed by the learned Single Judge, there should be specific evidence by setting a hostile title to the knowledge of the real owner, on the facts and circumstance of the case. 23. In view of the above principles regarding adverse possession, we are required to examine if the Defendant perfected its right to enjoy the suit land by way of adverse possession. Admittedly, the suit has been instituted in 1996 i.e. in the year of alleged dispossession. 24. 23. In view of the above principles regarding adverse possession, we are required to examine if the Defendant perfected its right to enjoy the suit land by way of adverse possession. Admittedly, the suit has been instituted in 1996 i.e. in the year of alleged dispossession. 24. It is the specific case of the Plaintiff that he got the possession on 15-11-71 from the Defendants, who had dispossessed him earlier. Though the Plaintiff, initially denied to have filed title suit No. 63 of 1969, by amending the plaint, he pleaded that, as the possession of the land was given, by removing the fencing, the Title Suit No. 63 of 1969 was withdrawn in 1971. In his cross-examination, he stated that the suit was withdrawn because the possession was handed over on 15-11-71. He denied the suggestion that the Defendant did not hand over the possession to him on 15-11-71. While admitting his signature on Ext.B (an application made to the Hon'ble Prime Minister alleging that the PWD had forcefully occupied his land) the Plaintiff, in his cross-examination, stated that the contents of the same was partly true and partly false. This statement of the Plaintiff remained uncontroverted. Therefore, as the Plaintiff stated that the contents of Ext.B was not wholly true, it cannot be held that he admitted, by the Ext.B, that he was not possessing the land after 15-11-71. The Plaintiff's contention, that he was given possession on 15-11-71, has been supported by PW 3, who said that, on 20-6-64 the PWD had put up a boundary fencing on the suit land and that 6/7 years thereafter they removed the boundary fencing. He clearly stated that due to removal of the boundary fencing the Plaintiff got possession, on 15-11-71. The evidence of PW 3, who denied the suggestion that he did not see the incident on 20-6-64 and 15-11-71 remained undemolished. That apart, PW 2, who knew the boundary of the suit land stated that Plaintiff had possessed the suit land and that the Government constructed a hut thereon, prior to the possession of the Plaintiff. Though this witness was cross-examined by the Defendant, his evidence, that the Plaintiff possessed the suit land and that the Government i.e. the Defendant constructed hut thereon, prior to Plaintiff's possession, remained uncontroverted. Though this witness was cross-examined by the Defendant, his evidence, that the Plaintiff possessed the suit land and that the Government i.e. the Defendant constructed hut thereon, prior to Plaintiff's possession, remained uncontroverted. Therefore, considering totality of the evidence of Plaintiff's said witnesses, it stood established that the Defendant had removed the fencing from the suit land and the Plaintiff possessed the same w.e.f. 15-11-71. Though the Defendants claimed that they were possessing the suit land, no evidence was adduced in support of this plea. The SDO, PWD, Dharmanagar, deposing as DW 1 produced a first (list of documents) dated 29-4-97 and 27-5-97 and marked those as Ext.C series (5 numbers) and Ext. D series (3 sheets). He did not state as to what were those documents. Therefore, the markings aforesaid does not amount to proof of any documents. In his cross-examination, DW No. 1 stated that he did not know how much land the Plaintiff had been possessing. He admitted that Ext.B did not contain the dag number, khatian number and boundary of the land. From the evidence of DW 1, it appears that he failed to support the Defendants' plea of possessing the suit land. Therefore, in my considered opinion, by the evidence of P Ws 1, 2 and 3, the Plaintiff could successfully establish his plea regarding coming into possession of the suit land on 15-11-71. As the contents of the Ext.B was not fully admitted by the Plaintiff and in the absence of any particulars regarding the identity of the land mentioned in Ext.B, it cannot be held that the Plaintiff had admitted that the suit land was in the possession of the Defendant's even after 15-11-1971. That apart, in the absence of any particulars about the identity of the land in Ext.B, it cannot be concluded that the land mentioned in the Ext.B included the suit land. 25. In view of the above, I am inclined to hold that the learned Addl. District Judge committed gross error by wrongly appreciating the evidentiary value of the Ext.B and by failing to correctly appreciate the evidence of PW Nos. 1, 2 and 3. Thus, it is found that the Plaintiff could successfully establish that he got the possession on 15-11-71. In view of the above, I am inclined to hold that the learned Addl. District Judge committed gross error by wrongly appreciating the evidentiary value of the Ext.B and by failing to correctly appreciate the evidence of PW Nos. 1, 2 and 3. Thus, it is found that the Plaintiff could successfully establish that he got the possession on 15-11-71. In his evidence, the Plaintiff (PW 1) stated that, on 2-12-96 the Executive Engineer, PWD measured the land for construction of staff hut, that he again erected post on 9-12-96 and, on 13-12-96, constructed hut, by force, ignoring Plaintiff's objection. PW 1 was cross-examined on behalf of the Defendant twice i.e. on 27-5-97 and 14-8-97, but no suggestion was given to him denying the said contention. Therefore, the evidence of the Plaintiff that the Defendant again occupied the suit land, on 13-12-96, by raising a hut, remained uncontroverted and undemolished. Hence, it stood established that the Plaintiff was dispossessed on 13-12-96. In the plaint also, the Plaintiff specifically pleaded that the cause of action arose on the said dates i.e. on 2-12-96, 9-12-96 and 13-12-96. Therefore, the handing over of possession, in favour of the Plaintiff, on 15-11-1971, and his subsequent dispossession on, 13-9-96, having been established, the withdrawal of the earlier suit i.e. Title Suit No. 63 of 69 could have no adverse effect, in as much as the present suit was instituted on the basis of the new cause of action, which took place, on 13-9-96. In view of the above, the findings of the learned first appellate court that the Defendants were continuously possessing the suit land, claiming the same to be their land is not based on evidence, on record, In view of the said undemolished evidence, that the possession was delivered, on 15-11-1971 and the uncontroverted evidence that the Defendant occupied the suit land, on 2-12-96, 9-12-96 and lastly on 13-12-96, in the absence of any evidence from the side of the Defendants in support of their possession, the finding of the learned Addl. District Judge, that the Plaintiff failed to prove that the possession was handed over to him, is perverse. The Defendants banked upon the Ext.B i.e the letter written by the Plaintiff to the Hon'ble Prime Minister. As discussed above, the Plaintiff categorically stated that the contents of Ext.B was partly true and partly false. District Judge, that the Plaintiff failed to prove that the possession was handed over to him, is perverse. The Defendants banked upon the Ext.B i.e the letter written by the Plaintiff to the Hon'ble Prime Minister. As discussed above, the Plaintiff categorically stated that the contents of Ext.B was partly true and partly false. The Defendants did not ask PW 1 which portion of Ext.B was false and which portion was true. That apart, as argued by the learned Senior counsel appearing for the Appellant, the Ext.B is silent about the particulars of the land. Therefore, I find force in the contention of the learned Senior counsel that the Ext.B cannot be treated as substantive evidence to conclude that the Defendants were continuously possessing the suit land, adverse to the interest of the Plaintiff. 26. From the above discussion, it is found that, the Plaintiff could successfully established that, after obtaining possession in respect of the suit land w.e.f 15.11.1971, he continued with the said possession till 13.12.1996, on which he was again dispossessed by the Petitioner. Therefore, as the Plaintiff acquired title on the basis of the allotment aforesaid, there is no substantive evidence to show that the Defendant possessed the suit land continuously for the statutory period i.e. 12 years, claiming hostile interest against the Plaintiff, in as much as the Plaintiff could establish that he was dispossessed on 13.12.1996. 27. From the above discussion and carefully perusing the judgment and decree passed in Title Suit No. 52 of 96, I have no hesitation in holding that the learned trial Judge, relying on the evidence, on record, rightly came to the findings that the Plaintiff got the possession of the suit land on 15-11-1971 and that the Defendants, started construction on the suit land on 9-12-96, 2-12-96, on which dates cause of action arose. Therefore, it is found that the learned trial Judge committed no error requiring interference by the appellate court. 28. Learned Counsel, appearing for the Respondents, relying on the decision of L.J. Leach & Co. Ltd. (supra), has challenged the subsequent amendment made by the Plaintiff. In the above referred case, the Supreme Court observed that, Courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. 29. Ltd. (supra), has challenged the subsequent amendment made by the Plaintiff. In the above referred case, the Supreme Court observed that, Courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. 29. In case of Pirgonda Hongonda Patil(supra), the Supreme Court, referred the following principles enunciated by Batchelor J. in his judgment in the case of Kisandas Rupchand v. Rachappa Vithoba, reported in 88 Bom. 644. All amendments ought to be allowed which satisfy the two conditions (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties..... but I refrain from citing further authorities, as, in my opinion, they all lay down precisely the same doctrine. That doctrine, as I understand it, is that amendment should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a Plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused; to allow it would be to cause the Defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim. The ultimate test therefore still remains the same : can the amendment be allowed without injustice to the other side, or can it not? 30. Relying on the said decision, the learned Counsel, appearing for the Respondents, has submitted that, subsequent amendment made by the Plaintiff, was not maintainable. Fact remains, that the amendment was allowed by the learned trial Judge, during the trial. The order, by which the amendment was granted, was not challenged before any appropriate authority. Therefore, the order granting amendment attained its finality. That apart, no ground was taken, in the appeal before the learned first appellate court, regarding the amendment granted in favour of the Plaintiff. In view of above, the Plaintiff-Respondent can't be allowed to question the correctness of the amendment, in respect of the plaint, at this stage. 31. Therefore, the order granting amendment attained its finality. That apart, no ground was taken, in the appeal before the learned first appellate court, regarding the amendment granted in favour of the Plaintiff. In view of above, the Plaintiff-Respondent can't be allowed to question the correctness of the amendment, in respect of the plaint, at this stage. 31. Admittedly, in the present case, no issue was framed regarding adverse possession. The Defendants, admitting the allotment in favour of the Plaintiff, claimed the right to enjoy the suit land by way of adverse possession. In their written statement, the Defendants clearly stated that, the title of the Defendants got perfected by way of adverse possession. Now the question is whether this Court at this stage should remand the matter for fresh disposal after framing the issue on "adverse possession". 32. In the case of Swamy Atmananda (supra), the Supreme Court observed that, if the parties go to trial, knowing fully well the rival issues involved and adduce evidence in such a case, without establishing prejudice, it would not be open to any party to raise the question of no framing of a particular issue. 33. In the case of Noharlal Verma (supra), the Supreme Court observed that, limitation goes to the root of the matter. If a suit, appeal or application is barred by limitation, a court or an adjudicating authority has no jurisdiction, power or authority to entertain such suit, appeal or application and to decide it on merits. 34. In the case of R.K. Tombi alias Tombisana Singh (supra), a learned Single Judge of this Court discussed the principle of remand under the provisions of Rule 23A of Order 41 Code of Civil Procedure. It is settled law that, if the parties knew their respective pleaded case and got opportunity to lead evidence on their respective pleadings, even after a specific issue is not framed on a specific point, decision may be rendered on the basis of the evidence led by the parties, if it is found that no prejudice has been caused. Therefore, before deciding to dismiss a suit or to remit the matter for fresh trial on the ground of non-framing of a particular issue, the court is required to carefully examine as to whether failure to frame such a issue caused prejudice to any of the parties. Therefore, before deciding to dismiss a suit or to remit the matter for fresh trial on the ground of non-framing of a particular issue, the court is required to carefully examine as to whether failure to frame such a issue caused prejudice to any of the parties. If the answer is found in negative, the matter may be decided under the provisions of Rule24 of Order 41 Code of Civil Procedure without remanding the matter for fresh disposal. 35. Learned Counsel, appearing for the Defendants, relying on the decision of Nedumuri Kameswaramma (supra), has fairly submitted that, failure to frame issue on the point of adverse possession did not cause any prejudice to the parties and that it is not necessary to frame fresh issue on the said point. 36. The issue Nos. 3 and 4 aforesaid gave ample opportunity and scope to the parties to adduce evidence in support of their respective claims regarding right, title and interest with regard to the suit property. In the above referred cases, the Supreme Court observed that, if the parties went to trial, fully knowing the rival case and led all the evidence, not only in support of their contentions but also in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was mis-trial which vitiates proceedings. 37. From the record, it appears, the Defendant, except examining one witness as DW.1, who exhibited certain documents, did not adduce any evidence in support of their claim that they were continuously possessing the suit land adverse to the interest of the Plaintiff. As the Defendants had taken the specific plea of continuously possessing the suit land in the teeth of the title in favour of the Plaintiff, it was their burden to adduce evidence to substantiate the said plea. The issue Nos. 3 and 4 aforesaid, involve the question regarding possession over the suit land. Hence, the Defendant got sufficient opportunity and notice to adduce evidence regarding possession and right to enjoy the suit land. None of the parties claimed that they had any further evidence to offer. Therefore, I am of the opinion that the suit was not bad for non-framing of an issue on the point of adverse possession. Hence, the Defendant got sufficient opportunity and notice to adduce evidence regarding possession and right to enjoy the suit land. None of the parties claimed that they had any further evidence to offer. Therefore, I am of the opinion that the suit was not bad for non-framing of an issue on the point of adverse possession. Therefore, I find no point either to dismiss the suit on the said ground or to remit the matter to the trial court. The remand of the suit, at this stage would amount to giving another opportunity to the Defendant to prove their claim, which they failed to do so earlier, and this will certainly cause prejudice to the Plaintiff. Therefore, I find no reason to remit the matter in as much as the materials on record are sufficient to adjudicate the matter. 38. In view of what has been discussed above, I find that the learned first appellate court committed gross error by holding that the Plaintiff's suit was barred by law of Limitation and thus dismissing the suit by reversing the judgment and decree, passed by the learned trial Judge. Therefore, this appeal has sufficient merit requiring interference with the impugned judgment and order. Accordingly, the appeal is allowed and the impugned judgment and order, passed in Title Appeal No. 05 of 1998, is set aside and quashed. Consequently, the judgment and decree, dated 23-8-1997, passed by the learned trial Judge, in Title Suit No. 52 of 1996, is affirmed. No cost. Return the lower court records. Appeal allowed.