JUDGMENT : Heard Mrs. Dinari T. Azyu, learned counsel for the appellant alongwith Mr. L.H. Lianhrima, learned senior counsel for the respondent. 2. This is an appeal under Section 17(2)(b) of the Mizoram Civil Court’s act, 2005 read with Section 96 and Order 41 of the Code of Civil Procedure, 1908 against the Judgment & Order and Decree dated 28.04.2014 passed by the learned Senior Civil Judge-I, Aizawl District, Aizawl in Eviction Suit No.3 of 2012. 3. Facts of the case in a nutshell is that Plaintiff/Appellant is one of the daughters of the deceased Sh. Zaneka (L) and is a permanent resident of College Veng, Aizawl. The defendant No.1/Respondent No.1 is the husband of defendant No.2/Respondent No.2 while the defendant No.2/Respondent No. 2 is the sister of the plaintiff/appellant. That the plaintiff/appellant was gifted a plot of land covered by LSC No. 485 of 1974 by her late father Sh. Zaneka and at the same time the defendant No.2 was also gifted a plot of land by the said Sh. Zaneka (L), but the defendant No. 1 and 2 have sold the said plot of land to Smt. Chhungi Zahau and left Aizawl with their family to settle down in a village. The plaintiff was issued a Land Settlement Certificate vide LSC No.Azl-485 of 1974 and the same was changed to No.104202/01/160 of 2009 when cadastral survey was done by the Revenue Department. The area covered by the original LSC No.485 of 1974 was 3219 Sq. ft and when the said LSC was changed to the new number i.e LSC No. 104202/01/160 of 2009, the area was reduced to 3088.12 Sq.ft from 3219 Sq.ft. The fresh LSC No:104202/01/160 of 2009 was initially issued in the plaintiff's younger son's (Lalvulluaia) name. However, lateron 21.3.2012, it was transferred in the name of the plaintiff. The plaintiff has cleared all the taxes up to date. 4. The plaintiff’s case is that when the defendants/Respondents No.1 & No.2 returned back from the village, they did not have any place to stay in Aizawl. Out of compassion, the plaintiff/appellant allowed them to stay in her house. The plaintiff has cleared all the taxes up to date. 4. The plaintiff’s case is that when the defendants/Respondents No.1 & No.2 returned back from the village, they did not have any place to stay in Aizawl. Out of compassion, the plaintiff/appellant allowed them to stay in her house. But as it was not convenient for the plaintiff/ Appellant and her family to stay in the same house with the defendants/Respondents No.1 &2, in the month of June 1996, the plaintiff/appellant told them to make a temporary building below her house and stay there till the land and building is required for the use by her and her family members. The defendant/respondents No.1 & 2 were said to spend about Rs.1,00,000/-(Rupees one lakh) only towards the construction of the said Assam Type building which was to be adjusted towards the rent deducted from the monthly rent @ Rs.500/-per month as they are closely related, for the period of 200 months (16 years and 8 months). After the expiry of the said period of 200 months the plaintiff/appellant requested the defendant/respondents No.1 & 2 to vacate the building, but they refused to vacate the building thus, defendants'/ respondent’s stay within the plaintiff's/appellant’s land and building was unauthorized with effect from February 2011. The plaintiff/appellant then came to know that defendant/respondent Nos.1 & 2 are trying to slice out the portion in which they are staying and prepare a separate Pass/LSC in their name. The plaintiff accordingly filed the eviction suit before the Civil Judge, Aizawl. In addition the plaintiff claimed that the defendants were liable to pay damages at the rate of Rs.10 each day since 16th May 2012. 5. The case of the defendant/respondent nos. 1 & 2 on the other hand, was that the Suit was barred by limitation. They denied the averments made by the plaintiff and stated that plaintiff’s husband died before he could complete the building of their house so the plaintiff had requested them/respondents nos. 1 & 2 to help her to complete it for her, thus, the respondents no.1&2 return to College Veng and completed the construction of her house. The plaintiff in turn allowed them to purchase the suit land measuring of 40 feet length and 35 feet breath for Rs.40,000/-(Rupees forty thousand) only on 26.10.1993 in presence of three reliable witnesses. 1 & 2 to help her to complete it for her, thus, the respondents no.1&2 return to College Veng and completed the construction of her house. The plaintiff in turn allowed them to purchase the suit land measuring of 40 feet length and 35 feet breath for Rs.40,000/-(Rupees forty thousand) only on 26.10.1993 in presence of three reliable witnesses. The defendant/respondents No.1 and 2 produced a Sale Deed which was signed only by the witnesses who were the brothers of the plaintiff and respondent no.2, but did not have the signature of the Plaintiff/appellant or defendants/respondents No.1 & 2. After they purchased the Suit land, they constructed an Assam type building in the year 1994 and have been staying there ever since, that they never paid for the rent as claimed by the plaintiff. 6. After the pleading of the parties was complete, the Ld Trial Court framed the following issues:- (1) Whether the suit is maintainable in its present form and style? (2) Whether the plaintiff has cause of action against the defendants or not? (3) Whether the suit is barred by law of Limitation or not? (4) Whether the plaintiff is entitled to the relief claimed or not? If so, to what extent? 7. Thereafter, the Ld. Trial Court after hearing both the parties, disposed the Suit vide its Judgment & Order dated 28.4.2014 by dismissing the Suit and deciding that the suit was barred by limitation and passed a Decree in favour of the defendants/respondents No.1 & 2 and for the Revenue department to demarcate an area of measuring of 40 feet length and 35 feet breath of the suit land in favour of the respondents no.1& 2. 8. That the Appellant being highly aggrieved with the impugned Judgment and Order dated 28.4.2014 and the Decree dated 28.4.14 has preferred the instant appeal. 9. Mrs. Dinari T. Azyu, learned counsel for the appellant submits that the Ld. Trial Court had erred in directing the proforma defendants to demarcate the Suit land with an area of 40 feet length and 35 feet breath in favour of the defendant No.1 and 2 where they had constructed their house building. This is a manifest error in law and on facts in as much as the defendants neither made any counter claim against the Plaint for the Suit land nor even pleaded the same in their Written Statement. This is a manifest error in law and on facts in as much as the defendants neither made any counter claim against the Plaint for the Suit land nor even pleaded the same in their Written Statement. Therefore, the impugned Judgment & Order and the Decree being highly misconceived, illegal and bad in law, the same is liable to be set aside and quashed. 10. The learned counsel for the appellant further submits that the Defendant/respondents No.1 and 2 failed to establish that they had bought a portion of the Suit land from the appellant for Rs.40,000/-where they constructed the Assam type building. The sale deed Dated 26.10.1993 exhibited by them was not signed by the parties. Further, the three persons who had signed the alleged Sale Deed as witnesses were neither produced nor examined during the Suit proceedings by the defendant/respondents No.1 and 2 to prove the sale of the portion of the Suit land in issue. Therefore, the said document clearly have no value as per the Evidence Act should have been rejected by the Ld. Trial Court. 11. The learned counsel for the appellant also submits that the Ld. Trial Court failed to consider and appreciate the evidences led by the parties. That the appellant could prove that she allowed the defendant Nos.1 and 2 to stay as a tenants and that the rent @ Rs.500/-per month was to be adjusted with the amount spent by the defendant Nos.1 and 2 i.e Rs. 1,00,00/-towards constructing the Assam type building within the land covered under LSC no.104202/01/160 of 2009. The defence witness H.Lalhlimpuia during cross examination clearly admitted about his knowledge of the aforesaid condition. That the cause of action first arose for arrears of rent from February 2011 when the defendant/respondents defaulted in paying rent and again arose for ejectment when the tenancy was determined on 16th May 2012. That the case was clearly filed within time under article 67 of the Limitation Act as the respondents were staying within the land of the appellant as a tenant. The period for recovery of possession by the landlord from the tenant is 12 years after the tenancy is determined under Article 67 of Limitation Act. 12. Mr. L.H. Lianhrima learned Sr. The period for recovery of possession by the landlord from the tenant is 12 years after the tenancy is determined under Article 67 of Limitation Act. 12. Mr. L.H. Lianhrima learned Sr. counsel for the respondents on the other hand submits that the sale deed dated 26.10.1993 was executed within the family and the witnesses were the relatives of the appellant and the defendant no.2, thus it was not found necessary at that time for the appellant and defendant no. 2 to put their signatures on the sale deed, wherein the defendants No. 1 & 2 purchased the suit land from the plaintiff/appellant for Rs.40,000/-. 13. The learned Sr. counsel further submits that there is no agreement or receipt to show that the appellant collected rent from the respondents as claimed by her. The fact that the respondents No. 1 and 2 had built the Assam type building in 1994 is not denied by the appellant or her witnesses. On the other hand since it is not denied that the respondents No.1 & 2 had built the Assam type building in 1994, the limitation period starts from 1994 and the plaintiff/appellant is barred by limitation since the Eviction suit was filed after a lapse of more than 12 years and there was no application for condonation of delay. 14. The learned sr. counsel relied on the decisions of the Apex court in J. Thansiama vs. State Of Mizoram & Ors 2015 5 GLT, Foreshore Cooperative Housing Society Limited vs. Praveen D Desia reported in 2015 6 SCC 412 , Ramesh Chand Sharma v. Udham Singh Kamal 1999 8 SCC 304 , Union of India v. Punjab Singh 2003 10 SC 36. 15. Having heard the submission made by the learned counsels for both the parties, the points for determination are: 1. Whether learned trial court erred in holding that the suit is barred by limitation under article 67 of the Limitation Act, 1963. 2. Whether the learned trial court had erred in passing a decree for the proforma defendants to demarcate an area of 35 ft by 40 ft whereby the defendants no.1&2 have constructed their house within 3 months when no such plea was taken in the written statement submitted by the defendants no 1 & 2. 16. It is seen that the plaintiff examined two witnesses namely Sh. Lalvulluaia and Smt. Lalbiakpari to prove her case. 16. It is seen that the plaintiff examined two witnesses namely Sh. Lalvulluaia and Smt. Lalbiakpari to prove her case. Whereas, the defendant No.1 & 2 examined four witnesses namely Sh. Zahluni, Sh. H. Lalhlimpuia, Sh. H.T. Para & Sh. Malsawma. The appellant being aged and illiterate executed a power of attorney in favour of her daughter. 17. Having perused the evidence on record, this court finds that it is not a disputed fact that the disputed area is within Land Settlement Certificate vide LSC No.Azl-485 of 1974 which was changed to No.104202/01/160 of 2009 and which is in the name of the appellant/plaintiff. It is also not disputed that respondents had built the Assam type building in 1994-1996 and that they have been staying in the house ever since, However, neither of the parties were able to produce any substantive evidence as to under what circumstances the respondents built the Assam type building. This is not a case where prima facie it can be taken to be a case of landlord and tenant. The defendants/respondents denied paying any rent and there is nothing on record to show that they recognized the plaintiffs as landlord. As observed by the learned trial court, the appellant was not able to produce any receipt to substantiate her claim that she received Rs.500 per month as rent for a Rs 1,00,000/-alleged to be spent by the respondents to build the Assam type building. The plaintiff witnesses are both the children of the plaintiff and thus cannot be considered independent witnesses especially when Plaintiff witness Smt. Lalbiakpari is the attorney holder for the plaintiff. Though one defendant witness H. Lalhlimpui has mentioned that he heard rumors of Mr. Biakenga being repaid the construction charge against the house rent, this ‘rumors’ cannot be held to be a substantive prove. 18. The only fact that is proved and not disputed by the parties is that the respondents No.1 & 2 had built the Assam type building over the land settlement certificate which was in the name of the appellant in the year 1994-1996 and that the respondents No. 1 & 2 have been living in the Assam type building ever since. The only fact that is proved and not disputed by the parties is that the respondents No.1 & 2 had built the Assam type building over the land settlement certificate which was in the name of the appellant in the year 1994-1996 and that the respondents No. 1 & 2 have been living in the Assam type building ever since. The eviction suit was filed in 2012, thus, this court is of the considered view that as rightly observed by the learned trial court, the appellant is barred by Article 67 of the limitation act in filing the eviction suit after 12 years from the date when the respondents built the Assam type building within her LSC and dismissed as mandated under section 3 of the Limitation Act, 1963. 19. This court however observes that the learned trial court has gone beyond any relief claimed by the defendants no.1 & 2 in their written statement and thus find it fit to interfere and set aside the decree dated 28.04.2014 in Eviction suit 3 of 2012 passed by the learned trial court directing the “proforma defendants to demarcate the suit land with an area of 40 feet length and 35 feet breath whereby the defendants have constructed their house building within a period of 3 months from the date of judgment and order and issue separate LSC in the name of Defendant No. 2” which was not prayed for by the concerned. This portion of the Judgment and Order and Decree dated 28.04.2014 passed by the learned trial court is thus quashed and set aside. 20. RFA 11/2014 is thus disposed as per the above observations.