JUDGMENT : KALYAN RAI SURANA, J. 1. Heard Mr. S. K. Medhi, learned senior counsel, assisted by Mr. R. Hazarika, learned counsel appearing for the appellant as well as Mr. B.D. Das, learned senior counsel, assisted by Ms. R. Deka, appearing for the respondent No. 3. 2. This appeal under Section 96 read with Order XLI Rule 1 CPC is directed against the judgment and decree dated 19.02.2015 passed by the learned Civil Judge No. 1, Kamrup (Metropolitan), Guwahati in Title Suit No. 230/2005. 3. The appellant is the plaintiff in the suit. 4. In short, the case projected in the plaint is that the appellant got possession of the suit land measuring 5 bigha covered by Dag No. 120 of K.P. Patta No. 23 of VillageAmsong (N.C.), Mouza-Panbari, in the district of Kamrup together with plant machineries and dilapidated factory and other constructions standing thereon, by virtue of an agreement dated 01.10.1996. Having received possession on the strength of the said agreement, it is projected that the said land and building was earlier owned and possessed by Petreco Eastern Pvt. Ltd. and the suit land together with all assets therein was taken over by the proforma respondent No. 3, namely, Assam Industrial Development Corporation Ltd. (AIDC, in short). The total sale consideration of the land and other assets was Rs. 23.10 lakh, out of which, the sale consideration of land was Rs. 3,00,000/- (Rupees Three lakh) and on payment of the entire sale consideration, the suit land was sold and transferred in the name of the appellant by the proforma respondent No. 3, by virtue of registered sale deed No. 1620/2001 dated 26.02.2001. It was projected that the suit land was protected from any encroachment. It was also projected that the respondent No. 2, namely, Sri Vivek Sharma, had approached the appellant in the month of April 2002 to take possession of the suit land on rent for installing a bio-medical waste disposal plant and the said offer was refused by their representative that the main gate of the suit land was open and some construction works were going on at the behest of the respondents No. 1 and 2. It is projected that despite request by the appellant, the respondents No. 1 and 2 did not stop the construction but the appellants were threatened with dire consequences. It is projected that despite request by the appellant, the respondents No. 1 and 2 did not stop the construction but the appellants were threatened with dire consequences. Therefore, the appellant had filed the suit, inter-alia, praying for the following relief(s):- i. Declaration that the acts of the Defendants No. 1 and 2 in entering/trespassing on Schedule properties of the plaintiff and commencing construction, repair and renovation works thereon including on existing dilapidated structures, is illegal, malafide and unauthorized. ii. Ejectment/Eviction of the Defendants No. 1 and 2 with their men, agents, servants, labourers and materials etc, from Schedule properties of the plaintiff. iii. Permanent Injunction restraining the Defendants No. 1 and 2, their men, agents, servants, labourers etc,. from carrying out or undertaking and/or continuing with any construction, repair or renovation works on the Schedule properties and/or on any part or parcel of the Schedule properties and/or on the existing dilapidated structures, in any manner whatsoever. iv. Full cost of the suit. v. Any other relief/reliefs to which the plaintiff may be found entitled to in law/or in equity. 5. The respondents No. 1 and 2 had contested the suit by filing their written statement projecting therein that the 5 bigha plot of land which they are occupying, was a Government land and was covered by Dag No. 212, village- Amsong, under Panbari Mouza and that the said plot of land was given by the Government to the Guwahati Municipal Corporation for setting up a bio-medical waste plant. It was further stated that the Government had handed over the actual physical possession of the said plot of land to the Guwahati Municipal Corporation and to the respondents No. 1 and 2 on 07.10.2002. It was claimed that the respondents No. 1 and 2 were not occupying even a single inch of the land of the appellant under Dag No. 120 but they were occupying land covered by Dag No. 212 Kha'. It was further claimed that as more land was required, GMC authorities had recommended that the vacant land of Dag No. 120 should be cleared and the acquisition process for the said land has been initiated. It was further claimed that Petreco Eastern Pvt. Ltd. were illegally occupying the land covered by Dag No. 212, from where they have been evicted. Hence, it was claimed that the suit was false and frivolous and the same may be dismissed. It was further claimed that Petreco Eastern Pvt. Ltd. were illegally occupying the land covered by Dag No. 212, from where they have been evicted. Hence, it was claimed that the suit was false and frivolous and the same may be dismissed. 6. The proforma respondent No. 3 had also filed their written statement, claiming that the physical possession of the suit property was handed over to the appellant on 05.10.1996, further stating that as no relief was sought against them, they were not contesting the claim. 7. On the basis of the pleadings, the following issues were framed for trial:- 1. Whether there is any cause of action for the suit? 2. Whether the suit is bad for non-joinder of necessary parties? 3. Whether the suit land has been in continuous occupation of the plaintiff since 1.10.1996? 4. Whether the defendant No. 1 and 2 are the trespassers in respect of the suit land? 5. Whether the defendant No. 1 and 2 have raised construction over the suit land? 6. Whether the plaintiff is entitled to get the decree as prayed for? 7. To what over relief/reliefs are the parties entitled to? 8. In support of their claim, while the appellant and plaintiff had examined four witnesses being, Sri Sajjan Kumar Jain (P.W. 1), Sri Banamali Thakuria (P.W. 2), Md. Aminur Rahman (P.W. 3) and Sri Purna Kanta Mahanta (P.W. 4). The respondents No. 1 and 2 had examined Sri Vivek Sharma (respondent No. 2) as D.W. 1 and Sri Khagen Deka as D.W. 2 (but written as P.W-2 in the record of deposition). 9. The learned trial Court, in support of issues No. 3 and 5, by examining the evidence did not take cognizance of the photographs (Ext. 6) in the absence of the negative of the photograph and took notice of the eviction of Petreco Eastern Pvt. Ltd. from 3 bigha 5 lechas land under Dag No. 212, had accepted that the land measuring 5 bigha covered under Dag No. 212 was handed over to the Guwahati Municipal Corporation on 07.10.2002 and the consequent handing over of the said land by the Guwahati Municipal Corporation to the respondents No. 1 and 2 on 10.01.2003 and it was held that they are occupying the said land since then. The learned trial Court had arrived at a finding that the land given to the respondents No. 1 and 2 did not contain any part or parcel of land covered by Dag No. 120. The learned trial Court took notice of the evidence tendered by Sri Khagen Deka and it was observed that the said witness did not know anything that the Dag No. 120 of the suit land was in whose name, the said land was standing and as per the notice of the fact that as per the said witness, no land under Dag No. 120 was handed over to the respondents No. 1 and 2 and had held that as per Ext. A, the land under Dag No. 212 was handed over to the Guwahati Municipal Corporation and the respondent No. 2. 10. Referring to the cross-examination of PW-1, the learned trial Court had arrived at a finding that he had stated that there was practically no boundary wall demarcating the suit land and he had further stated that he was not aware that the Circle Officer, Sonapur Revenue Circle had submitted a report to the Deputy Commissioner, Kamrup regarding illegal possession of land by Petreco Eastern Pvt. Ltd. and later on the same was taken over by the Government and handed over to Guwahati Municipal Corporation for constructing of biomedical waste disposal of plant and then handed over the possession of the land to the respondents No. 1 and 2. The learned trial Court had referred to the statements made in cross-examination that he had not submitted any particulars regarding land acquisition and cannot say that on the strength of Ext. 4 (Jamabandi), a regular mutation was granted to him. Referring to the evidence of P.W.4, the learned trial Court had taken note that Petreco Eastern Pvt. Ltd. was in unauthorized occupation of 3B-5L land (B& L is short form of Bigha and Lecha), without having any allotment over the said land. 11. On the basis of entries made in Ext. F (Sketch map), it was held that as per the said map prepared by the Office of the Circle Officer, it showed that the land under Dag No. 212 and Dag No. 120 and other surrounding land in Dag No. 212 measuring 5 B was given to the respondents No. 1 and 2. F (Sketch map), it was held that as per the said map prepared by the Office of the Circle Officer, it showed that the land under Dag No. 212 and Dag No. 120 and other surrounding land in Dag No. 212 measuring 5 B was given to the respondents No. 1 and 2. It was also held that no evidence was adduced by the appellant to show that action of the Government in eviction Case No. 2/2002 was illegal. Hence, it was held that the respondents No. 1 and 2 had not trespassed into the land, rather the possession of the land of Dag No. 212 by the said respondents was with approval and sanction of the Government authorities but not by way of encroachment. It was held that the appellant had admitted that the Government had acquisitioned land from the appellant, which was proved by Ext. L, M and N, proved by the respondents No. 1 and 2, and it was held that as per Ext. L, it was proved that the appellant was not in possession of the land described in Schedule-A of the plaint as he had been evicted from the land by Circle Officer on 06.03.2002 itself. Accordingly, it was held that the appellant had failed to prove their case and it was held that the appellant was on unauthorized occupation of 3B-5L land of Dag No. 212 from which he was duly removed by following due process of law and it was held that at best, the appellant may have a case against the Government for illegal eviction and it was held that by not doing so, the appellant had tried to achieve the goal by climbing on the shoulder of the respondents in a clever manner in the garb of encroaching the suit land by the respondents. Hence, it was held that the Government action was confined in respect of Dag No. 212 but not over the land covered by Dag No. 120. The issues No. 3 and 4 were decided in the negative and against the appellant. Hence, it was held that the Government action was confined in respect of Dag No. 212 but not over the land covered by Dag No. 120. The issues No. 3 and 4 were decided in the negative and against the appellant. Though the issue No. 2 was decided in favour of the appellant, in respect of issue No. 1, it was held that there was no cause of action in the suit and in respect of issues No. 5, 6 and 7, in view of the findings on issues No. 2 and 3, it was held that the appellant was not entitled to any relief by deciding the said issues in negative. Hence, this suit was dismissed. 12. The learned senior counsel for the appellant has submitted that the respondent No. 3 i.e. the Assam Industrial Corporation Limited is a State Financial Corporation and having taken over the properties of Petreco Eastern Pvt. Ltd., had sold the land and assets including plant machineries, etc. to the appellant. Therefore, when the State machinery was selling the suit land covered by Dag No. 212, neither the appellant had any claim in respect of land covered by Dag No. 120, nor the State Government, the Guwahati Municipal Corporation, or the respondents No. 1 and 2 could have any valid claim in respect of land covered by Dag No. 120. In this connection, it is submitted that while 5 bigha land covered by Dag No. 212 was a periodic patta land, covered by K.P. Patta No. 23, land measuring 5 B, covered by Dag No. 120 was a Government land and not covered by any patta. Hence, it is submitted that both the plots of land were distinct land, having separate identities. It is further submitted that the finding recorded by the learned trial Court was absolutely inconsistent because on one hand, the categorical finding by the learned Court below is that the Government had allotted 5 bigha land covered by Dag No. 120, but in paragraph 29 of the judgment, the learned trial Court had held as per Ext. F (Sketch Map) land under Dag No. 212 and Dag No. 120 and other surrounding land in Dag No. 212, measuring 5 bigha was given to the respondents No. 1 and 2. 13. F (Sketch Map) land under Dag No. 212 and Dag No. 120 and other surrounding land in Dag No. 212, measuring 5 bigha was given to the respondents No. 1 and 2. 13. It is submitted by the learned Senior Counsel for the appellant that the learned trial court had misconstrued the pleadings and evidence on record while arriving at a finding that the appellant was not even sure about the existence of the boundary wall in the suit land described in Schedule-A, because the candid statement in the plaint as well as in the evidence-on-affidavit by the PW-1 and PW-2 was to the effect that the land purchased from the respondent No.3 was duly bounded on all sides by boundary wall with gate. 14. It is further submitted that the learned trial court had misread and misconstrued the pleadings and evidence on record by holding that the government had taken over possession of the land from the plaintiff in the eviction case No. 2/2002 and in that in his evidence the appellant had admitted that no appeal was preferred against that eviction proceeding, because it was the projected case of the respondents No.1 and 2 that the government had carried out eviction of Petreco Eastern Pvt. Ltd. from land of Dag No. 212, but at no point of time, the appellant had laid any claim of having received any part of land covered by Dag No. 212, but it was their specific case that the respondent No.3, i.e. AIDC Limited had sold and handed over 5-B land covered by Dag No. 120, of K.P. Patta No. 23 of Vill. Amsong (N.C.), Mouza- Panbari, Dist. Kamrup. Moreover, it was nobody's case that the Government had evicted the appellant from the land covered by Dag No. 212. 15. It is further submitted that there was no dispute that the land sold to the appellants by a Govt. of Assam undertaking measuring 5-B was covered by Dag No. 120, whereas, the 5-B land allotted by the Govt. to the Guwahati Municipal Corporation, who in turn handed over the land to the respondents No.1 and 2 was covered by Dag No. 212, as such, the appellant had made a prayer for appointment of a Amin Commission to ascertain the disputed land, but the appellant's prayer made under Order XXVI Rule 9 CPC was rejected. to the Guwahati Municipal Corporation, who in turn handed over the land to the respondents No.1 and 2 was covered by Dag No. 212, as such, the appellant had made a prayer for appointment of a Amin Commission to ascertain the disputed land, but the appellant's prayer made under Order XXVI Rule 9 CPC was rejected. Therefore, it is submitted that by invoking Section 105 CPC, this Court has the power to direct the appointment of Amin Commission to ascertain that who is in possession of the suit land ad-measuring 5-Bigha, covered by Dag No. 120, of K.P. Patta No. 23 of Vill. Amsong (N.C.), Mouza- Panbari, Dist. Kamrup. 16. The learned senior counsel for respondent No. 3 has submitted that the stand of the respondent No. 3 was only to clarify its position that they had taken over the 5-B land of Dag No. 120 from Petroco Eastern Pvt. Ltd., and had handed over actual physical possession of the entire land, machinery and constructions to the appellant on 05.10.1996 after entering into the agreement dated 01.10.1996 (Ext. 1). Hence, as no relief was claimed against them, he has no other submission to make. 17. Upon hearing the learned senior Counsel for the appellant as well as the learned senior counsel for the respondent No. 2, the point of determination which has arisen for decision in this appeal is "Whether the appreciation of the evidence by the learned trial Court is sustainable?" 18. Having heard the learned Senior Counsel for the appellant, this Court has examined the trial Court records. It is seen that out of the two witnesses examined by the respondents No.1 and 2, the learned trial Court had recorded the deposition of Sri Khagen Deka, examined on 16.05.2011. However, in the deposition sheet it is mistakenly recorded that PW-2 was examined, instead of referring the said witness as DW-2. Therefore, while the learned trial court was appreciating the evidence, there was an erroneous appreciation of the evidence of Sri Khagen Deka, because in paragraph 20 of the judgment, the learned Court had mentioned that "on perusal of the evidence of PW-2 Sri Khagen Deka, an employee of Sonapur Revenue Circle it appears that he supported the stand of the defendants by proving the defendants documents marked as Ext.A to Ext.D, though he was called and examined by the plaintiff. In his cross examination, he categorically deposed that he does not know the Dag number of the suit land. He also deposed that he cannot say in whose name, Dag No. 120 stands. ." Thus, there has been erroneous appreciation of the evidence on record. 19. It is seen that the learned trial Court had opined that the evidence of the PW-1 about the alleged dropping of land acquisition process of the scheduled land is not backed by any reason, is also not found sustainable because it was nobody's case that the government had handed over any part of land of Dag No. 120 to the respondents No.1 and 2. Hence, when the appellant's land covered by Dag No. 120 was not affected by any land acquisition proceeding, he was not required to take any steps. Hence, owing to clear evidence of DWs that no part of land of Dag No. 120 was acquired or vested upon the respondents No.1 and 2, the finding of the learned trial Court that "This admission of the plaintiff clearly shows that the government acquisitioned the land from the plaintiff as proved by Ext.L, M and N which have been produced and proved by the defendants. Ext.L proves the fact that the plaintiff is not in possession of land described in Schedule-A of his plaint as he has been duly evicted from the said land by Circle Officer on 03.06.2002 itself " is not sustainable on facts, in light of the pleadings and evidence on record. A perusal of Ext. L shows that by letter dated 04.06.2002, the Circle Officer, Sonapur Revenue Circle had informed the Deputy Commissioner, Guwahati that on 03.06.2002, the occupier of land described in schedule thereto (3B-05L part of Dag No. 212) had been peacefully evicted in connection with Eviction Case No. 2/2002 as per his order No. S.168/2002/3 dated 02.05.2002. Thus, it cannot be said from the said Ext.L that the appellant was evicted from the government land covered by Dag No. 212. Moreover, as per DW-2 and vide Ext.J (report of the Mandal), Petreco Eastern Pvt. Ltd. was evicted from the said land. Thus, there has been incorrect appreciation of the evidence on record. 20. It is seen that from the cross- examination of PW-4 and from evidence- in- chief of (Sri Khagen Deka) DW-2, Petreco Eastern Pvt. Ltd. was evicted from land of Dag No. 212. Thus, there has been incorrect appreciation of the evidence on record. 20. It is seen that from the cross- examination of PW-4 and from evidence- in- chief of (Sri Khagen Deka) DW-2, Petreco Eastern Pvt. Ltd. was evicted from land of Dag No. 212. In his cross examination, DW-2 had stated that as per Ext.4 (jamabandi), Dag No. 120, K.P. Patta No. 23, of Vill. Amsong (N.C.), Mouza- Panbari was earlier in the name of Rajen Ghosh, then in the name of Petreco Eastern Pvt. Ltd., thereafter AIDC and now S.M. Ispat Ltd. (i.e. appellant). He had also stated that there was 5 bigha land in Dag No. 120. 21. It is further seen that as per the Sale Deed (Ext.2), the Respondent No.3 i.e. AIDC Limited had sold the suit property described in the Schedule of the plaint to the appellant and as per clause 3 of the said Sale Deed, possession of the suit land was handed over to the appellant as per clause 6 of the Agreement for Sale dated 01.10.1996 (Ext.1). Thus, the suit property having been taken over in exercise of powers vested under Section 29 of the State Financial Corporation Act, 1951 was sold by a Govt. of Assam undertaking to the appellant. Thus, by proving the Agreement for Sale dated 01.10.1996 (Ext.1), the appellant has been able to prima facie show that possession of the suit property was taken over on 30.12.1992 and vested with Respondent No.3, who had delivered the said property to the appellant vide agreement dated 01.10.1996 (Ext. 1), as such, the property was in existence as on 01.10.1996 and on 21.02.2001 when the Sale Deed (Ext.2) was executed and subsequently registered on 26.02.2001. 22. Therefore, this Court finds that while the respondents No.1 and 2 had been able to show from Ext.A and Ext.H that the said respondents No.1 and 2 were handed over land measuring 5 bigha covered by Dag No. 212, which was a government land, the appellant had been able to prove that they were the owners and occupiers of 5 bigha land, covered by Dag No. 120, K.P. Patta No. 23, of Vill. Amsong (N.C.), Mouza- Panbari, Dist. Amsong (N.C.), Mouza- Panbari, Dist. Kamrup and that from the evidence of PW-1 and PW-2, the appellant has been able to show that the appellant was dispossessed from the suit land and that the appellant had come to know about such dispossession on 20.03.2005, when PW-2 had visited the suit land. 23. Thus, when there was no dispute that (1) the Govt. had handed over government land measuring 5 bigha, covered by Dag No. 212 of Vill. Amsong (N.C.), Mouza- Panbari, Dist. Kamrup, to the Guwahati Municipal Corporation, who in turn handed over the respondents No.1 and 2, and (2) that the Respondent No.3 i.e. AIDC Limited, which is also a Govt. of Assam undertaking, had sold 5 bigha land, covered by Dag No. 120, K.P. Patta No. 23, of Vill. Amsong (N.C.), Mouza- Panbari, Dist. Kamrup to the appellant, this is a case where a local investigation was required to be made under Order XXVI Rule 9 CPC for elucidating the matter in dispute. In the opinion of this Court, this was an appropriate case where by appointing a Survey Commission, to visit the spot and to ascertain the location of the suit land, moreso, when it appears that the Revenue Village- Amsong under MouzaPanbari is a non- cadastral surveyed village. From the order dated 12.08.2013, passed by the learned trial Court, it is seen that the prayer for appointing Amin Commission was rejected on the ground that the appellant can have the disputed land demarcated by private Amin or Tehsil Court Amin, which in the present case was not an appropriate finding because the land of Revenue Village Amsong is a "none-ke" land which is the Assamese verna cular short form of "non- cadastral surveyed village", as such, it could only be officially surveyed to find out the truth and private demarcation could not have been possible. Thus, by invoking the provisions of Section 105 CPC, this Court if of the opinion that the order dated 12.08.2013, passed by the learned Civil Judge No. 1, Guwahati, thereby rejecting the prayer made by the appellant for appointment of Survey Commission under Order XXVI Rule 9 CPC was not sustainable and, as such, upon remand, the appellants would be at liberty to renew such prayer, if the appellant is so advised. 24. 24. Ordinarily, by allowing additional evidence, this appellate Court could have decided the appeal, but in the present case, it is seen that the learned trial Court had misread and misconstrued the pleadings and evidence on record, and moreover, the evidence of DW-2 was recorded as evidence of PW-2, which is an error, which must be rectified only by the learned trial Court. Thus, this is found to be a fit case wherein, by exercising the provisions of Order XLI Rule 33, in order to do complete justice to the parties, the matter is remanded back to the learned trial Court for a fresh trial. Moreover, owing to the nature of dispute, the learned trial Court is directed to frame an additional issue to the following effect:- "Whether any part of the suit land measuring 5 bigha, covered by Dag No. 120 of K.P. Patta No. is 23, of Vill. Amsong (N.C.), MouzaPanbari, Dist. Kamrup is encroached by the respondents No.1 and 2? " 25. On the basis of above discussion, in the overall opinion of this Court, this is found to be a case where the learned trial Court has misread and misconstrued the evidence on record. Moreover, the evidence of DW-2 is found to have been recorded and appreciated as evidence of PW-2, which has led to erroneous appreciation of evidence. Moreover, it is seen that the finding of the learned trial court for rejecting the prayer for local investigation is not sustainable. Hence, without giving any first appellate finding on any issues, by setting aside the judgment and decree passed by the learned trial Court, the proceedings of TS 230/2005 is remanded back to the Court of the learned Civil Judge No.1, Kamrup (Metropolitan), Guwahati for a fresh trial after framing additional issues as indicated hereinbefore. The order of remand is made within the meaning of Order XLI Rule 23-A CPC. 26. It is provided that while trying the suit afresh, the said learned Court shall not be influenced by any observations made herein as this Court has not given any finding of fact on any issue. 27. The order of remand is made within the meaning of Order XLI Rule 23-A CPC. 26. It is provided that while trying the suit afresh, the said learned Court shall not be influenced by any observations made herein as this Court has not given any finding of fact on any issue. 27. In view of the provisions of Order XLI Rule 26-A CPC, as only the appellant's side had advanced their argument, the appellant is directed to appear before the learned Court of Civil Judge No.1, Kamrup (Metropolitan), Guwahati, on 01.09.2018, and by producing the certified copy of this order, seek further instructions from the said learned Court. 28. Let the LCR be returned forthwith. 29. On receipt of the LCR, the learned trial Court shall issue notice to the respondents and thereafter, shall make endeavour to expeditiously dispose of the suit as early as possible. 30. The parties are left to bear their own cost. 31. The appeal stands disposed of by an order of remand under Order XLI Rule 23-A CPC.