W. Ibotombi Singh vs Th.(O) Thambalngou Devi

R.R. Prasad, J.—This Regular Second Appeal is directed against the judgment and order dated 27.3.2014 passed by the learned District Judge, Manipur East in Civil Appeal No.10 of 2013/67 of 2013 affirming the judgment and order dated 24.6.2013 passed by Civil Judge, Sr. Divn.- II Manipur East in Judl. Misc. Case No.159 of 2013 (arising out of O.S. No.20/11) whereby the learned Judge, by exercising power as enshrined under Order 12, Rule 6 , decreed the suit by declaring right, title and interest of the plaintiff over the land measuring 1028.352 sq ft (0.023 acres) which on being encroached by the defendant and had amalgamated it with the land appertaining to Dag No.1045 (New 4102) and for restoration of that land to the plaintiff by demolishing the structures constructed over that land.

Before coming to the substantial questions of law framed at the time of admission, the fact of the case needs to be taken notice of which, in brief, are as follows:

The plaintiffs brought a suit bearing OS No.20 of 2011 making out a case that late Th. Ibohal Singh and late Th. Kshetri, both brothers, were recorded pattadars of a piece of land appertaining to CS Dag No.1046/4103(New), under Patta No.355 (Old/313(New) measuring an area of .26 acre situated at Village No.42 Keishamthong. The plaintiffs, who are the widows and sons of late Th. Ibohal Singh, inherited .13 acre, which had come to their share of late Th. Ibohal Singh. On the other hand, a piece of land measuring .10 acres appertaining to CS Dag No.1045/4102(New) situated adjacent south of the plaintiffs'' land was belonging to one Moirangthem Ningol Jyoti Devi, the mother of the principal defendant, who during her life time gifted the said land measuring .10 acre to the principal defendant and thereby it was recorded in the revenue record in the name of the defendant. In course of time, the defendant started constructing a Temple over a piece of land which was being used as a path for egress and ingress which was part of the suit land and thereby the plaintiff filed a demarcation Case before the S & SOIII Manipur on 7.6.2008 praying therein to demarcate the land belonging to the plaintiff measuring .26 acre. On measurement being taken, it was found that the area of land of the plaintiffs is only 11143.88 sq ft instead of 11325.60 sq ft (which is equivalent to .26 acres) and thereby land was found less of 181.72 sq ft (.00417 acre) which had been encroached upon by the defendant. Thereupon, the plaintiffs requested the defendant to stop constructing structures over that piece of land but the defendant went on with the construction and thereby the plaintiff filed a suit with prayer, inter alia, to declare right, title and interest of the plaintiff over .00417 acre which has been encroached by the defendant and also for recovery of the land and for demolition of the structures. Further case which was incorporated in the plaint by way of amendment is that when some dispute over the piece of land measuring .10 acre appertaining to Dag No.1045(4102 New) belonging to the principal defendant and the land measuring .29 acre appertaining to Dag No.1044 (4101 new) belonging to Moirangthem family they went for demarcation of the land by the Revenue staff of the Survey & Settlement Officer whereby a demarcation Case No.39/2008 was instituted for demarcation of the land. In that proceeding the measurement was taken in the manner as agreed upon that .10 acre of land of Dag No.4102 be measured from northern extremity whereas .29 acre of land of Dag No.4101 be measured from the southern extremity and accordingly it was done. On taking measurement of said area, the land was earmarked for each of the parties and after taking out that area of land measuring .05 was found in excess which they agreed to divide it into two equal halves and thereby the land appertaining to 4102 belonging to the defendant which had an area of .10 acre got increased by .025 acre and thereby it measured as .125 acres and similarly the land of Moirangthem family which was measuring .29 acre got increased by .025 and total came as .315 acre. Accordingly, they got an agreement executed to the effect as stated above on 15.5.2008 and got it registered on 19.5.2008.

Further case is that during the pendency of the suit by virtue of an order passed by the court at the instance of the plaintiffs, an Advocate Commissioner was appointed for spot inquiry who was to be assisted by the Survey & Settlement Officer. While holding the spot inquiry, the measurements were taken not only of the land of the plaintiffs and defendants but also of the other lands of different dags and it was found that the principal defendant has been possessing .024 (1028 Sq ft) in excess whereas land almost of that area was found in shortage in case of the plaintiffs.

The case of the main defendant as has been made out in the written statement is that one Moirangthem Chaoba (since died) was the owner and possessor of the land measuring one Bigha, 1 Katha, 17 Lasha (equivalent to .44 acres) since 1908/1909 which continued till 1960. The said land appertaining to different Dags came into possession of defendant as well as Moirangthem brothers namely, Nodi, Mani and Gouramani Singh. Since some disputes arose in between them, a demarcation case bearing No.39/Survey & Settlement Office III/08 was filed in which the area, which the defendant was possessing and owning, was determined as 31.5 acre. Accordingly, boundary was put in. Further, it has been pleaded that the claim of the plaintiffs that their land measuring .26 acre got lessened to the extent of 181.72 sq.ft (.00417 acres) is based on wild and baseless allegations. Further, it has been pleaded that before making claim of area being diminished to the extent of .26 acres, the plaintiffs should have gone for measurement of the land just adjacent to the north of the land belonging to heirs of Late Th. Mohan Singh to find out as to whether the original area of .52 acre is intact or it got increased. Further case is that whatever construction has been undertaken, that has been undertaken over the passage of 5 ft running parallel to the boundary of the plaintiffs and thereby question of encroaching the land of the plaintiffs does not arise and that defendant is in possession over the suit land from his childhood and this fact has been well within the knowledge of the plaintiffs.

During the pendency of the suit, the plaintiffs-respondent filed an application under Or 26 R.9 of the CPC praying therein to direct the Survey and Settlement Officer-III to hold a spot inquiry in connection with demarcation case NO.54/S & SA-III Manipur pending before it from before. Appellant-defendant did not raise any objection to such prayer. Thereupon, the court, taking into account the fact that the matter in issue pertains to dispute relating to the demarcation felt it necessary to have a report to resolve the dispute, passed an order on 3.9.2009 appointing an Advocate Commissioner for holding spot inquiry. The Advocate Commissioner, after taking measurements not only of the plots involved in the case but also other plots, submitted its report on 9.11.2009 giving his opinion that defendant has encroached the land of the plaintiffs to the extent of .023 acres. On submission of the said report, the defendant-appellant did not raise any objection and thereby the court vide its order dated 3.4.2010 accepted the report. Thereupon, the defendant filed an application under Or 15 R.1 read with Section 151 of CPC upon which a case was registered as JM Case NO.117/10/17 of 2011 stating therein that total area of the land of the plaintiffs under Dag No.1046 was found to be .2591 (nearest to .26 acre) while that of the defendant was found to be .1211 acre under Dag NO.1045 and thereby there has been no encroachment of the land of the plaintiff and hence prayer was made to dispose of the suit. However, that application was dismissed by holding that the matter in controversy between the parties should be decided by taking evidences of both the parties.

Thereupon, the defendant filed an additional supplementary written statement taking a plea of adverse possession. However, the Court rejected that part of the written statement wherein issue relating to adverse possession had been raised by holding that without making necessary amendment in the written statement, said plea cannot be allowed. Thereupon, the defendant filed another application under Or.6 R.17 for incorporating the plea of adverse possession. That application was resisted on behalf of the plaintiff. Upon hearing the court vide its order dated 13.12.2012 rejected the application for amendment by holding that prayer for amendment if it is allowed, would change the nature of the suit and that it is inconsistent, contrary and is self defeating to the plea taken by the defendant in its W.S. Thereupon, the plaintiff filed an application seeking leave of the court for filing 6(six) documents, one of the documents being registered deed in between the principal defendant and his neighbor showing the manner of arrangement in which they divided their lands for which litigation between them was going on since long. The application was allowed. Thereafter, when the case was fixed for settlement of the issues, the plaintiffs filed an application under Or.12 R.6 read with Section 151 CPC upon which a case was registered as JM case No.159 of 2013 praying therein to decree the suit on admission as the defendants by not raising any objection to the report of the Advocate Commissioner, showing encroachment of the lands of the plaintiffs by the defendants, has admitted the claim of title of the plaintiffs and that apart the defendants by taking a plea of adverse possession and also the manner in which the defendant and his neighbors got the excess land distributed between them, amounts admission whereof they can be said to have admitted the claim of the plaintiffs. This application was resisted by taking a plea that the Commissioner, going beyond his jurisdiction, had submitted a report and that plea of adverse possession has wrongly been rejected.

The learned trial court, upon adjudication on the point raised by the parties as stated above, did hold vide judgment and order dated 24.6.2013 that the report of the Advocate Commissioner giving specific opinion that defendant has encroached the land of the plaintiffs and that raising of the issue of adverse possession and also the document under which the defendant and his neighbour agreed to distribute the land, amounts admission of the claim of the plaintiffs and thereby decreed the suit in terms of the provision of Or.12 R.6.of CPC.

Being aggrieved with that, the appellant-defendant filed Civil Appeal No.10/13/67 of 2013. That was contested by the plaintiff-respondents wherein the defendant-appellants took the plea that the court illegally disallowed the plea of adverse possession taken by the defendant and that the court below exceeded its jurisdiction in putting reliance upon the report of the Advocate Commissioner before framing of the issues, even before the document being admitted in evidence in according with law. On the other hand, the plea which was taken by the plaintiff-respondents is that the order rejecting plea of adverse possession taken by way of supplementary written statement or by way of amendment has attained its finality and thereby it cannot be raised at this stage. In that regard, plea was also taken that taking a plea of adverse possession itself amounts to admission of the right, title and interest over the said land of the plaintiffs, and that the defendant having never objected to the report showing clearly that land in suit being encroached by the defendant also amounts admission besides the act/manner in which the defendant and his neighbour did distribute the land between by way of registered deed. The learned appellate court accepting the plea of the plaintiff-respondents that the circumstances/act, as highlighted by the plaintiffs, amounts admission of the claim of the plaintiffs and thereby the trial court rightly decreed the suit on admission under the provision of Or.12 R.6 CPC. While holding so, the learned appellate court put reliance on the cases S. Malla Reddy v. Future Builders Cooperative Housing Society & Ors reported in (2013) 9 SCC 349, Uttam Singh Duggal & Co Ltd. v. United Bank of India & Ors reported in (2000) 7 SCC 120 and Charanjit Lal Mehra & Ors v. Kamal Saroj Mahajan(Smt) & Anr. reported in (2005) XI SCC 279.

Upon appeal being dismissed, the defendant-appellant has preferred this Second Appeal wherein following substantial questions of law were framed:

"a) Whether non-filing of objection to the Commissioner''s report will amount to acceptance of the Commissioner''s report and contents thereof?

b) Whether the averments made in Judl.Misc Case No.117 of 2010 can be treated as admission of the defendants with regard to the findings of the Commissioner?

c) Whether raising of the plea of adverse possession will amount to admitting the title of the plaintiff?"

Mr. A. Mohendro, learned counsel assisted by Mr. P. Ajoy, appearing for the appellants submits that the appellant-defendant at no stage of the proceeding of the trial has categorically, equivocally and clearly admitted the claim of the plaintiffs that the defendant had encroached the land of the plaintiff. In spite of that the suit was decreed in terms of the provisions of Or.12 Rule l6 of the CPC on the premise that non filing of any objection to the report of the Advocate Commissioner reporting therein that the defendant has encroached the land of the plaintiffs and that defendant made an attempt to take a plea of adverse possession and that the arrangement of the land made in between the defendant and his neighbour by virtue of registered deed, amounts admission. But none of the acts/conduct/circumstances would amount admission and thereby the court should have decided the issues in full-fledged trial and thereby both the courts apparently did commit illegality either decreeing the suit or affirming the judgment and order passed by the trial court and hence it is fit to be set aside.

As against this, Mr. Rarry, learned counsel appearing for the respondent-plaintiffs submits that all the aforesaid 3(three) acts/conduct/circumstances go to prove the admission of the defendant of the claim of the plaintiffs and thereby trial court and also the appellate court was justified in decreeing the suit and affirming the judgment of the trial court in view of the provision as contained in Or.12 Rule 6, which the legislature in its wisdom has legislated to give the plaintiff a right to speedy judgment in a situation where there is no controversy. Learned counsel, by referring to the provision of Order 12, Rule 6 , has gone to submit that the judgment under the aforesaid provision can be passed not only upon admission made in pleading but also on admission made ''otherwise''. In such situation, even if there has been no admission in pleading but the aforesaid acts of not raising any objection to the report of the Advocate Commissioner giving specific finding of land of the plaintiffs being encroached by the defendant and also by the conduct/action of the defendant of filing an application under Order 15, Rule 1 of CPC praying therein to dispose of the suit in view of the report of the Advocate Commissioner showing no controversy and also on account of the plea of adverse possession being taken as well as the act whereby arrangement was made under registered deed by the plaintiffs and his neighbour for distributing the lands, go to prove admission. Mr. Rarry has gone further to highlight the facts relating to execution of registered deed of agreement in between the defendant and his neighbour. In this regard, it was pointed out that as per the case of the party land appertaining to Dag No.1045 (4102) belongs to the defendant whereas land appertaining to Dag No.1044 (4101 New) belong to Moirangthem family with whom defendant has long drawn dispute. However, they got their disputes resolved by coming to the understanding that they would go for measurement of the land of Dag No. 4102 to determine .10 acres from the northern side and likewise they would go for measurement to determine the area of Dag NO.4101 measuring .29 acres from southern side and upon determination of the respective area, the land measuring .05 acre remaind intact which they decided to divide half and half and thereby the defendant by the said registered deed got the land to the extent of .125 acre which is in excess than .10 acres and this act/conduct can certainly be taken into account by the court while exercising power to dispose of the suit in terms of Order 12, Rule 6 as the said act/conduct/circumstance though may not be taken as admission of pleading but it falls in the category of clause ''otherwise'' appearing in the said provision and therefore the trial court and also the appellate court rightly passed the order.

Learned counsel, in this regard, has referred to decisions rendered in the case of Karam Kapahi & Others v. Lal Chand Public Charitable Truest & Anr. reported in (2010) 4 SCC 753, Charanjit Lal Mehra & Ors v. Kamal Saroj Mahajan(Smt) & Anr. reported in (2005) 11 SCC 279, Uttam Singh Duggal & Co Ltd. v. United Bank of India & Ors reported in (2000) 7 SCC 120. The other submission which was advanced is that when the defendant did not raise any objection to the report of the pleader commissioner, there was no necessity of proving the said report in view of the provision as contained in Order 26, Rule 12 (2) of CPC.

Before dealing with the issues involved in the case, the case of the plaintiff-respondents as well as the defendant-appellant need to be reiterated, but in brief. According to the case, one late Ibohal Singh from whom the plaintiff inherited the land as well as his brother late Keshetri Singh were the recorded pattadars of a piece of land bearing Dag No.1046 measuring an area of .26 acre. The plaintiff being heirs and legal representative of late Ibohal Singh acquired half of the land i.e. .13 acre whereas the defendant is owning only .10 acre of land appertaining to Dag No.1045 situated adjacent south of the plaintiffs'' land encroached the land of the plaintiffs to the extent of .023 acre which got established when Advocate Commissioner, on taking measurements of the lands, submitted its report which was never objected to by the defendant and that on finding himself in difficult situation the defendant made an attempt to make out a case of perfecting his title over the piece of land encroached, by way of prescription of adverse possession by filing supplementary written statement and also an application for amendment which was rejected; and that even at one stage the defendant, on filing of the report of the Advocate Commissioner, filed an application under Or.15 R.1 for disposing of the suit as according to the defendant, there was no controversy with respect to the encroachment of the land which application was dismissed. Further, according to the plaintiff the case of the plaintiff relating to the encroachment stands supported by the conduct of the defendant whereby the defendant and his neighbour divided the piece of land, which upon measurement was found in excess and extent of that excess land is the extent of encroachment of the plaintiffs'' land.

On account of the aforesaid reasons, plaintiff-appellant filed an application under Or.12 R.6 taking a plea of claim of plaintiffs being admitted by the defendant that on account of the aforesaid 3(three) reasons - one being the report submitted by the Advocate Commissioner being not challenged; the other taking a plea of adverse possession and third the circumstance showing sharing of the land which was found in excess during measurement in between the defendant and his neighbor. The said plea of the plaintiff-respondents being accepted by the court, decreed the suit in favour of the plaintiffs which was affirmed by the appellate court. In that event, one needs to take notice of the provision as contained in Order 12 R.6 of the CPC which reads as follows:

"Order 12, Rule 6 :

Judgment on admissions.-(1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.

(2) Whenever a judgment is pronounced under sub-rule (1) a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced."

The scope and the parameter of the said provisions fell for consideration before the Hon''ble Supreme Court in the case of Karam Kapahi v. Lal Chand Public Charitable Trust : (2010) 4 SCC 753, Their Lordships, after taking notice of the provision which was there prior to amendment and also after amendment, were pleased to observe as follows:

"39. In the 54th Law Commission Report, an amendment was suggested to enable the Court to give a judgment not only on the application of a party but on its own motion. It is thus clear that the amendment was brought about to further the ends of justice and give these provisions a wider sweep by empowering judges to use it ''ex debito justitial, a Latin term, meaning a debt of justice. In our opinion the thrust of the amendment is that in an appropriate case, a party, on the admission of the other party, can press for judgment, as a matter of legal right. However, the Court always retains its discretion in the matter of pronouncing judgment.

If the provision of Order 12, Rule 1 is compared with Order 12, Rule 6 , it becomes clear that the provision of Order 12, Rule 6 is wider in as much as the provision of Order 12, Rule 1 is limited to admission by ''pleading or otherwise in writing'' but in Order 12, Rule 6 the expression ''or otherwise'' is much wider in view of the words used therein namely: ''admission of fact.........either in the pleading or otherwise, whether orally or in writing''.

Keeping the width of this provision in mind this Court held that under this rule admissions can be inferred from facts and circumstances of the case [See Charanjit Lal Mehra and others v. Kamal Saroj Mahajan (Smt.) and another, (2005) 11 SCC 279 at page 285 (para 8)]. Admissions in answer to interrogatories are also covered under this Rule [See Mullas''s commentary on the Code, 16th Edition, Volume II, page 2177].

In the case of Uttam Singh Duggal & Co. Ltd., v. United Bank of India and others, (2000) 7 SCC 120, this Court, while construing this provision, held that the Court should not unduly narrow down its application as the object is to enable a party to obtain speedy judgment."

After examining the scope of the provision and observing as aforesaid, Their Lordships on examination of the fact of the case, did observe as follows:

"47. Therefore, in the instant case even though statement made by the Club in its petition under section 114 of the Transfer of Property Act does not come within the definition of the word "pleading" under Order 6, Rule 1 of the Code, but in Order 12, Rule 6 of the Code, the word "pleading" has been suffixed by the expression "or otherwise." Therefore, a wider interpretation of the word "pleading" is warranted tin understanding the implication of this Rule. Thus, the stand of the Cub in its petition under Section 114 of the Transfer of Property Act can be considered by the Court in pronouncing the judgment on admission under Order 12, Rule 6 in view of clear words "pleading or otherwise" used therein especially when that petition was in the suit filed by the Trust."

On going through the facts of the case, one would find that the club had denied the title of the trust over the property in suit by taking a plea that trust had never been the lessor and has no right to receive lease rant whereas in an application subsequently filed u/s 114 of TP Act accepted the title of the trust over the property in question being a lessor and had also admitted that rent is due to be paid to the trust. In such situation Their Lordships did hold that though petition u/s 114 of the TP Act cannot be considered to be pleading still it will fall within the clause ''otherwise'' and can be the basis for deciding the matter in terms of the provisions as contained in Or.12 R.6 of the CPC.

Almost similar proposition was laid down in case of Uttam Singh Duggal v. United Bank of India and Ors reported in (2000) 12 SCC 120 wherein their lordships, at para 12, has held as under:

" 12. As to the object of the Order 12, Rule 6 , we need not say anything more than what the legislature itself has said when the said provision came to be amended. In the objects and reasons set out while amending the said rule, it is stated that where a claim is admitted, the court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on admitted claim. The object of the Rule is to enable the party to obtain a speedy judgment at least to the extent of the relief to which according to the admission of the defendant, the plaintiff is entitled. We should not unduly narrow down the meaning of this Rule as the object is to enable a party to obtain speedy judgment. Where other party has made a plain admission entitling the former to succeed, it should apply and also wherever there is a clear admission of facts in the face of which, it is impossible for the party making such admission to succeed.

In that case Their Lordships, after taking notice of the resolution of the Board of Directors, admitting the claim of the plaintiffs, were pleased to hold that it amounts admission in terms of the provisions of Order 12 Rule. 6.

Here in the instant case, as I have stated above, 3(three) facts- (i) non filing of any objection to the report submitted by the Advocate Commissioner, (ii) taking a plea of adverse possession, despite the defendant putting claim of his right, title and interest over the land in dispute and (iii) the manner by which the defendant and his neighbour divided the land in between them which, according to the plaintiffs, were excess than to their share, have been taken to be the admissions on the part of the defendant and considering them to be the admission, suit was decreed in favour of the plaintiffs. In that context, the facts need to be examined to determine as to whether it will fall within the purview of admission as defined in Sections 17 to 20 fulfilling the requirement of Section 21 of the Evidence Act .

An admission is a statement oral or written suggesting an inference as to, any fact, in issue or relevant or deemed to be relevant to any such fact made by or on behalf of any party to any person. Admissions are admitted because the conduct of a party to a proceeding, in respect of the matter in dispute, whether by act, speech, or writing, which is clearly inconsistent with the truth of his contention, is a fact relevant to the issue. Just like any other piece of evidence, admission can be admitted in evidence only for drawing an inference of truth. Truth of an admission or a contention cannot be evidence through person to whom such admission was made. The scheme of the provision pertaining to admission under the Act makes them admissible because author of the statement acknowledges the fact to his own detriment.

It is well settled that party''s admission as defined in Section 17 to 20 of the Evidence Act fulfilling the requirements of Section 21 of Evidence Act is substantive evidence proprio vigore. An admission, if clearly and unequivocally made, is the best evidence against the party making it and though not conclusive shift, the onus on to the maker as it must necessarily be presumed to be true until the presumption is rebutted, the fact admitted must be taken to be established.

Keeping in view the aforesaid proposition, substantial questions of law framed as indicated above need to be answered. Since all the three substantial questions of law framed are related to each other, it warrants to be dealt with together.

It be reiterated that the Advocate Commissioner, after taking measurement of the land submitted its report opining therein that the defendant has encroached the land measuring .023 acre of the plaintiffs and thereby area of the land of the plaintiffs got shortened to that extent. To that report, the defendant did not file any objection. To what extent the report does have evidentiary value it has been enumerated in Order 26, Rule 10 (2) of the CPC which reads as follows:

"The report of the Commissioner and the evidence taken by him (but in the evidence without the report)shall be evidence in the suit and shall form part of the record but the court or with the permission of the court any of the parties, to the suit may examine the Commissioner personally in open court touching any of the matter referred to him or making in his report or as to his report or as to the manner in which he has made the investigation."

It is quite obvious from the aforesaid sub rule that the report of the Commissioner and the evidences, although not the evidence without the report, would be evidence in the proceeding in which Commissioner is appointed although the court has the power, as indeed, the parties a right to examine the Commissioner personally in the court touching any of the matter referred to by him in the report or as to the manner in which he has made the investigation. In such a situation, in spite of the report being against a party, the party does have a right to cross examine so as to find out as to whether Commissioner has correctly recorded the facts in his report. In that eventuality any report submitted by the Commissioner cannot be taken to be an admission. Further-more, any opinion given in the report is based on the objective finding of the Commissioner and not by the party and thereby even if report is not objected to, it will not assume the characteristic of ''Admission.''. Accordingly, issue framed as ''a'' is answered in negative.

Coming to next issue as has been framed under clause "b" it be stated that on filing of the report by the Advocate Commissioner, the defendant filed an application under Or.15 R.1 upon which a Miscellaneous Case No.117 of 2010 was registered. By filing the said application, prayer was made to drop the proceeding on the premise that the controversy got resolved as the Commissioner did not find any shortage of the area of the land of the plaintiffs or increase in the area of the land of the defendant. In this regard, statements which have been made in para 7, 8 and 9 in the petition filed under Order 15 R.1 read with Section 151 upon which Judl. Misc. Case NO.117/10 was registered, read as follows:

"7. That accordingly the demarcation was carried out by the officials of the Settlement Department on the 14th October 2009 and the said Commissioner was also present in the said demarcation proceedings.

That in the said demarcation proceedings the field measurement of the land of the Plaintiff under Dag No.1046 and the land of the Defendant under Dag No.1045 along with the adjoining Dag Nos were carried out.

That after completion of the field measurement, the measurement of the lands of the Plaintiff and Defendant were plotted out on a map showing the exact measurements of the Dag Nos.1045 and 1046.

That the said measurements were accepted by both the plaintiff and the defendant and were also signed by the conducting counsels on the spot before the same was carried away by the Commissioner for the purpose of submission of the same to the Hon''ble Court.

That it is hereby submitted that as per the said map, the total area of the land of the plaintiff under Dag No.1046 is found to be 25.91 (twenty five point ninety one) acres which is taken to the nearest decimal to be .26 (twenty six) acres. Accordingly, the land of the defendant under Dag No.1045 was found to be 12.11 (twelve point eleven) acres.

That however the Commissioner submitted his report dated 09th November 2009 contrary to the findings of the said field measurement and also gave his unsolicited opinion stating that the defendant has encroached on the land the plaintiff etc.

That the Hon''ble Court had directed the parties for proceedings under section 89 of the CPC and the parties had appeared and the said field measurements was not disputed by the parties on the 24th May 2010."

Such statements, as referred to above, are not at all in consonance with the case of the Plaintiffs as according to plaintiffs the Advocate Commissioner''s report suggests that the defendant has encroached the land of the plaintiffs to the extent of .023 acre. In such a situation, keeping in view the statements made in the petition, filing of any such petition praying therein to drop the suit does not amount admission, admitting the claim of the plaintiffs. Accordingly, substantial question framed as "b" is answered in negative.

Coming to other issue as to whether plea of adverse possession will amount to admitting the title of the plaintiffs, it be stated that defendant-appellants in response to the case made by the plaintiffs, filed written statement wherein the defendant asserted is right, title and interest over the suit land. However, when report was submitted by the Advocate Commissioner to the effect that the defendants have encroached the land of the plaintiffs, supplementary W.S. was filed raising the issue of perfecting title by virtue of prescription of adverse possession. The said supplementary W.S. was rejected by the court below by holding that in absence of any amendment being made in this regard in the written statement, the supplementary W.S. cannot be accepted. Subsequently, to that effect again, an application for amendment to the W.S. was filed, but prayer for amendment was again rejected by the court below by holding that the plea of adverse possession is quite inconsistent to the case made in W.S. wherein the defendant has asserted his title over the suit land. Thus, it is evident that there does not happen to be any pleading of the defendant-appellants relating to title being perfected by virtue of prescription of adverse possession. In spite of that, plea has been taken by the plaintiff-respondents that the defendant by raising the plea of adverse possession has virtually admitted the title of the plaintiff, which plea does not appear to be sustainable on fact as no such plea can be said to be on record and also on law as one is entitled to take even inconsistent plea in the written statement which would amount to an additional defence and thereby it can never be assumed that by taking additional defence, the defendant has admitted the claim of the plaintiff. On this point that defendant would be within his competence under the law to take inconsistent or even alternative plea, I may refer to a decision rendered in the case of Baldev Singh & Ors v. Manohar Singh & Anr. reported in (2006) 6 SCC498 wherein in para 15 and 16 it has been held as under:

"15. Let us now take up the last ground on which the application for amendment of the written statement was rejected by the High Court as well as the Trial Court. The rejection was made on the ground that inconsistent plea cannot be allowed to be taken. We are unable to appreciate the ground of rejection made by the High Court as well as the Trial Court. After going through the pleadings and also the statements made in the application for amendment of the written statement, we fail to understand how inconsistent plea could be said to have been taken by the appellants in their application for amendment of the written statement, excepting the plea taken by the appellants in the application for amendment of written statement regarding the joint ownership of the suit property. Accordingly, on facts, we are not satisfied that the application for amendment of the written statement could be rejected also on this ground. That apart, it is now well settled that an amendment of a plaint and amendment of a written statement are not necessarily governed by exactly the same principle. It is true that some general principles are certainly common to both, but the rules that the plaintiff cannot be allowed to amend his pleadings so as to alter materially or substitute his cause of action or the nature of his claim has necessarily no counterpart in the law relating to amendment of the written statement. Adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding, altering or substituting a new cause of action. Accordingly, in the case of amendment of written statement, the courts are inclined to be more liberal in allowing amendment of the written statement than of plaint and question of prejudice is less likely to operate with same rigour in the former than in the latter case.

This being the position, we are therefore of the view that inconsistent pleas can be raised by defendants in the written statement although the same may not be permissible in the case of plaint. In the case of M/s. Modi Spinning and Weaving Mills Co.Ltd. & Anr. v. M/s. Ladha Ram & Co. [(1976) 4 SCC 320], this principle has been enunciated by this Court in which it has been clearly laid down that inconsistent or alternative pleas can be made in the written statement. Accordingly, the High Court and the Trial Court had gone wrong in holding that defendants/appellants are not allowed to take inconsistent pleas in their defence."

In view of such proposition of law, one cannot be said to have admitted the title of the plaintiff by taking a plea of adverse possession by way of amendment though in the written statement plea had been taken of his right title and interest over the suit land. Accordingly, said issue is answered in negative. However, it be stated that since the order rejecting the amendment sought for incorporation of the plea of adverse possession has taken its finality, it would not be open for the defendant to raise it again.

Apart from the issues framed which were discussed and the findings were recorded, one another issue in the light of the submission appears to be there upon which no issue had been framed but in the background of submission, it needs to be dealt with. In this regard, it be stated that the plaintiff-respondent has also put forth a case that the manner in which the defendant and his neighbor have shared the land appertaining to Dag No.4102 and 4101, it clearly goes to establish that they were having excess land than what they were entitled to. In this regard, submission which was advanced is that the principal defendant as well as his neighbour decided to have demarcation of the land appertaining to Dag No.4102 and 4101. The land appertaining to Dag No. 4102 situates adjacent south to land belonging to the plaintiff whereas land claimed by Moirangthem family appertaining to Dag No.4101 situates adjacent south to the land of the defendant. During demarcation, they decided to take measurement of the land in the manner that the measurement of the land measuring .10 acre be taken from the northern boundary of Dag No.4102 (which is touching the southern boundary of the land of the plaintiff appertaining to Dag No.4103) which was done and accordingly the measurement of the land measuring .29 acre was taken from the southern end of the land appertaining to Dag No.4101. After earmarking the extent of the land stated above in both the plots, they found excess land to the extent of .05 acre which they decided to divide it half and half and thereby the plaintiff did acquire the land .025 in excess and virtually the extent of shortage of the land of the plaintiff was found to that extent. In such event, argument which was advanced is that the defendant virtually by his conduct, has admitted the claim of the plaintiffs. The submission regarding admission of the claim of the plaintiffs in terms of the provision of Order 12, Rule 6 is devoid of any substance. Firstly, on account of the reason that accepting for the moment that it was done by the defendant in the manner, as has been explained on behalf of the plaintiff, it cannot be said that such conduct is detriment to the interest of the plaintiffs; and secondly by such conduct it never appears that he had admitted the claim of the plaintiffs unequivocally that he owns only .10 acre of the land. Accordingly, any statement made in the registered document executed in between the defendants and the members of the Moirangthem family with respect to division of the land in the manner stated above, would never amount an admission in terms of Order 12 R.6 though it may be one of the evidences.

Under the circumstances stated above, judgments and orders passed by the trial court and also by the appellate court being unsustainable in the eye of law deserve to be set aside. Accordingly, same are set aside. However, matter is remitted back to the trial court so that it proceeds with trial and after recording evidences to consider the matter afresh in accordance with law. The trial court is hereby directed to take endeavour to conclude the trial at the earliest preferably within 6(six) months.

Thus, the appeal is allowed. No order as to costs.