Page No.# 1/20 1/2020GAHC020001752020 2026:GAU-NL:328 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) KOHIMA BENCH Case No. : SA/1/2020 LIRENI KIKON W/O SHRI. N. KIKON, R/O SENJUM VILLAGE, RANGAPAHAR, DIMAPUR, NAGALAND VERSUS APONG PONGENER AO AND 3 ORS S/O P. SENTI AO, VILLAGE - CHANGKI, MOKOKCHUNG, NAGALAND, C/O SHRI. T.L.MERRY, DUNCAN BOSTI, DIMAPUR, NAGALAND 2:JANGKHOSIE HANGSING THROUGH LEGAL HEIRS - SHRI H. HANGSING SUPERINTENDENT FINANCE DEPT. NAGALAND CIVIL SECRETARIAT R/O R D BLOCK NEAR J.B JASOKIE RESIDENCE KOHIMA NAGALAND 3:THE STATE OF NAGALAND REPRESENTED BY THE SECRETARY TO THE GOVT. OF NAGALAND DEPT. OF LAND REVENUE NAGALAND KOHIMA 4:THE DEPUTY COMMISSIONER Page No.# 2/20 DIMAPUR NAGALAN BEFORE HON'BLE MR. JUSTICE DEVASHIS BARUAH For the Appellant(s) : Mr. A.C. Sarma, Sr. Advocate Mr. G. Bharadwaj, Advocate For the Respondent(s) : Ms. V. Suokhrie, Addl. A.G. Mr. Imti Longjem, Advocate Date on which judgment was reserved : NA Date of pronouncement of judgment : 01.06.2026 Whether the pronouncement is of the Operative part of the judgment? : Yes Whether the full judgment has been pronounced? : NA JUDGMENT AND ORDER (ORAL) Heard Mr. A.C. Sarma, the learned Senior Counsel assisted by Mr. G. Bharadwaj, the learned counsel appearing on behalf of the Appellant. Mr. Imti Longjem, the learned counsel appears on behalf of the Respondent No. 1 and Ms. V. Suokhrie, the learned Additional Advocate General, Nagaland appears on behalf of the Respondent Nos. 3 and 4. 2. At the outset, Mr. A.C. Sarma, learned Senior Counsel for Page No.# 3/20 the Appellant submitted that the State Respondents have been incorrectly described as proforma Respondents in the Memo of Appeal inasmuch as they should have been referred to as the Main Respondents, as they contested the suit against the Appellant. 3. The present Appeal under Section 100 is directed against the judgment and decree dated 05.03.2020 passed by the learned Principal District Judge, Dimapur, Nagaland (for short, “the learned First Appellate Court”) in First Appeal No. 05/2016 whereby the Appeal filed by the Respondent No. 1/Defendant No. 3 in the suit was allowed thereby setting aside the judgment and decree dated 24.08.2016 passed by the learned Civil Judge (Senior Division), Dimapur (for short, “the learned Trial Court”) in Title suit No. 02/2004. 4. This Court, vide order dated 16.03.2026, reframed the substantial questions of law in accordance with Section 100(4) of the Code of Civil Procedure, 1908 (for short, “the Code”). The 2 (two) substantial questions of law so framed are as under: (i) Whether the learned First Appellate Court was justified in dismissing the suit of the Plaintiff on the ground that in a suit seeking declaration of title over a plot of land in absence of a description of the Page No.# 4/20 immovable property, the suit cannot be decreed? (ii) Whether the finding of facts arrived at by the learned First Appellate Court that the land wherein Patta has been issued in favour of the Respondent No. 1 overlaps with the Patta which was issued subsequently to the Appellant is perverse? 5. The question that arises in the present proceedings is, as to whether, the substantial questions of law formulated by this Court are involved in the present Appeal. 6. To ascertain the said aspect, this Court finds it pertinent to take note of the brief facts which led to the filing of the present Appeal. 7. The Appellant herein claims that she purchased a plot of land from one T. Murry (since deceased), the Appellant's brother, vide an unregistered Sale Deed dated 23.11.1983, for a valuable consideration of Rs. 60,000/-. It is the further case of the Appellant that at the relevant point of time, no Patta system was introduced when the G.B. of Duncan Bosti allotted the land to her brother. Thereupon, she took steps for the issuance of a Patta in the year 2002 before the concerned authorities. The concerned authorities with the approval of the Government Page No.# 5/20 granted a Patta to the Appellant pursuant to a formal Settlement Order dated 03.05.2003. Consequently, the Jamabandi in respect to the land was corrected, and the Patta issued was numbered as Patta No. 1009 of Dag No. 1134 under Block No. 9 of Dimapur Town admeasuring 2 Kathas 16 Lechas. This aspect is apparent from a reading of Paragraph No. 12 of the plaint. It is further the case of the Appellant that she paid the land revenue for the year 2003 on 14.05.2003 as well as the house tax on 06.06.2003. 8. Be that as it may, to the surprise of the Appellant, she was served with a restraining order dated 03.06.2003 issued by the Defendant No. 1 on the ground that there was a dual allotment of the said Dag in favour of two individuals, which was a part of Dag No. 26 at Block No. 9. The Appellant thereupon took various steps before the concerned authorities. However, having failed to receive any favourable response from the authorities and the Patta of the Appellant being cancelled vide an order dated 04.08.2004, the Appellant filed a writ petition before this Court as well as a Revision Petition challenging the order passed by the Deputy Commissioner, Dimapur. This Court, vide an order declined to interfere in the writ proceedings as well as in the revision proceedings, but permitted the Appellant to file a suit. 9. It is relevant to observe that the Appellant while the Page No.# 6/20 proceedings was going on filed a suit which was registered and numbered as Title Suit No. 02/2004. In the said suit, after amendment of the Plaint, pursuant to the liberty granted by this Court in the order dated 03.06.2003, the reliefs sought for are reproduced herein under: “I. To set aside the letter No.LR/11-20/87 dated 4-08-2004 written by Deputy Secretary Land Revenue Department, as well as the cancellation Order No.REV-17/90-D dated 29-10-2004 issued by the Deputy Commissioner, Dimapur in respect of the suit land. II. Declaration of title of the suit land. III. Permanent injunction against the Defendants. IV. Costs of the suit. V. Any other relief or reliefs as may deem fit and proper in the circumstances of the case.” 10. The Defendant No. 3, who is the Respondent No. 1 herein, filed a written statement claiming inter alia that in the year 1985, the Respondent No. 1 herein purchased a plot of land admeasuring 1 Katha 15 Lechas from the Respondent No. 2 for a valuable consideration of Rs.14,000/-. The said purchase was made by a Registered Deed of Sale bearing Registration No. SD.512/85 dated 01.07.1985. The said Sale Deed contained the following boundaries of the land sold to the Respondent No. 1. The boundaries of the land so sold were as follows: Page No.# 7/20 East: Diphu Road West: Patta Land North: Land of Mr. Chungirao Lotha South: Land of Imkong Jamir 11. Pursuant to the purchase made by the Respondent No. 1 herein, the Jamabandi (Record of Rights) was also corrected by insertion of the name of the Respondent No. 1 on 20.01.1986. It was the further case of the Respondent No. 1 herein in the written statement that in the year 1990, the Respondent No. 1 took steps for setting up a Stone Crushing Unit and for that purpose also laid down an RCC foundation and machines were installed. However, the said unit could not be operationalized on account of certain complaints made by the neighbours and under such circumstances, the Respondent No. 1 had to dismantle the said unit. It is the further case of the Respondent No. 1 that the Respondent No. 1 is a resident of Changki Village in Mokokchung district and because of his pre-occupation, he did not undertake any development works in the suit land except for demarcating the same by a brick wall. However, on 15.05.2023, the Respondent No. 1 was informed that someone had encroached his land. On inquiry made by the Respondent No. 1 before the Page No.# 8/20 Office of the District Collector, Dimapur, it came to light that vide an order dated 13.05.2003, the suit land belonging to the Respondent No. 1 was allotted to the Appellant, and Jamabandi (Record of Rights) was issued to the Appellant with a different Patta number and a Dag number. It was under such circumstances, a complaint was filed by the Respondent No. 1 on 28.05.2003 to the District Collector, Dimapur. On submission of the said complaint, an order was passed on 03.06.2003, whereby both the parties were restrained from further development of the structures on the land till further orders. Further to that, the Government vide the letter dated 04.08.2004 cancelled the approval of the allotment of the land in favour of the Plaintiff. 12. The Respondent No. 1 herein further stated in the written statement that this Court, vide judgment and order dated 23.03.2006 disposed of the Revision Petition as well as the Writ Petition filed by the Appellant. By the said judgment and order, this Court directed that the Title Suit filed by the Appellant should proceed according to law, allowing the Appellant to challenge the legality and validity of the letter dated 04.08.2004, as well as any order adversely affecting her allotment. It is relevant to take note of that pursuant to that, the reliefs which were sought in the plaint referred to hereinabove were inserted. In addition to that, the Respondent No. 1 denied to the Page No.# 9/20 averments made in the plaint. 13. The records reveal that the State Defendants also filed a written statement whereby the State Defendants supported the case of the Respondent No. 1 herein. 14. The records further reveal that the learned Trial Court framed as many as 21 (Twenty One) issues. On behalf of the Plaintiff/Appellant, 17 (seventeen) documents were exhibited. On behalf of the Defendant Nos. 1 and 2, 3 (Three) documents were exhibited. The Defendant No. 3, who is the Respondent No. 1 herein, exhibited 4 (Four) documents. On behalf of the Plaintiff, there were 3 witnesses. However, the State Defendants did not adduce evidence of any witness. On the other hand, the Respondent No. 1 adduced the evidence of himself. 15. The learned Trial Court vide the judgment and decree dated 24.08.2016 decreed the suit in favour of the Plaintiff and against the Defendants, thereby granting the reliefs which have been sought for in the plaint. 16. Being aggrieved, the Respondent No. 1 preferred an Appeal before the learned First Appellate Court. The Appeal was registered and numbered as First Appeal No. 05/2016. The learned First Appellate Court vide judgment and order dated Page No.# 10/20 05.03.2020 allowed the Appeal and dismissed the suit. It is under such circumstances, the present Appeal has been filed. 17. It is relevant to take note of that pursuant to the filing of the instant Appeal, an application was filed by the Appellant under Order XLI Rule 27 read with Order XXVI Rule 9 and Section 151 of the Code for the purpose of taking additional evidence by issuance of a Commission to measure and demarcate the land of Title Suit No. 02/2004. The Respondent No. 1 filed an affidavit-in-opposition to the said application and a reply thereagainst was also filed on behalf of the Appellant. 18. It is apposite herein to take note of the judgment of the Supreme Court in the case of Union Of India Vs. Ibrahim Uddin & Anr reported in (2012) 8 SCC 148 and more particularly, paragraph No. 52, wherein the Supreme Court categorically observed the stage at which an application under Order XLI Rule 27 of the Code is required to be taken up for consideration. The Supreme Court, in un-categorical terms, opined that the said application has to be taken up at the time of final disposal of the Appeal to ascertain as to whether the additional evidence to which the applicant seeks to adduce is required for the purpose of pronouncing the final judgment. 19. Taking into account the above, this Court now takes up as Page No.# 11/20 to whether in the present Appeal, the substantial questions of law which were formulated, are at all involved in the present Appeal. 20. In this regard, this Court duly heard the learned counsels appearing on behalf of the parties and perused the materials on record, including the paper books which have been prepared. 21. The first substantial question of law, so formulated, is as to whether the learned First Appellate Court was justified in dismissing the suit of the Plaintiff on the ground that the suit seeking declaration of title over a plot of land is being sought in absence of a description of the immovable property. 22. This Court in the previous segments of the instant judgment duly referred to paragraph No. 12 of the plaint wherein there is a description given to the land. In addition to that, at paragraph No. 22.B of the plaint, there is a further description as regards the survey number of the land. 23. This Court now finds it relevant to take note of Order VII Rule 3 of the Code which stipulates the requirement when a suit is filed in respect to the immovable property. Order VII Rule 3 of the Code being relevant, is reproduced herein under: “3. Where the subject-matter of the suit is immovable property. Page No.# 12/20 — Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers.” 24. In the opinion of this Court, a reading of paragraph No. 12 as well as paragraph No. 22.B would clearly show that the suit land in question could be identified on the basis of the survey numbers which have been given. It was the specific case of the Appellant, that the land which was allotted to her was Dag No. 1134. of Patta No. 1009 under Block No. 9 of Dimapur Town. 25. In addition to that, this Court finds it relevant to take note of the judgment of the Supreme Court in the case of Pratibha Singh & Another Vs. Shanti Devi Prasad & Another reported in (2003) 2 SCC 330 wherein the Supreme Court categorically observed that it is not only the duty of the Plaintiff, but also a duty cast upon the Court to do the needful for the purpose of ascertaining the boundaries, if the boundaries could not be ascertained on a mere perusal of the plaint. In this regard, this Court finds it relevant to refer to paragraph Nos. 15 & 17 which are reproduced herein under: “15. Order 7 Rule 3 CPC requires where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it. Such description enables the court to Page No.# 13/20 draw a proper decree as required by Order 20 Rule 3 CPC. In case such property can be identified by boundaries or numbers in a record for settlement of survey, the plaint shall specify such boundaries or numbers. Having perused the revenue survey map of the entire area of RS Plot No. 595 and having seen the maps annexed with the registered sale deeds of the Defendant judgment-debtors we are clearly of the opinion that Sub-plots Nos. 595/I and 595/II were not capable of being identified merely by boundaries nor by numbers as sub-plot numbers do not appear in records of settlement or survey. The Plaintiffs ought to have filed the map of the suit property annexed with the plaint. If the Plaintiffs committed an error the Defendants should have objected to it promptly. The default or carelessness of the parties does not absolve the trial court of its obligation which should have, while scrutinizing the plaint, pointed out the omission on the part of the Plaintiffs and should have insisted on a map of the immovable property forming the subject- matter of the suit being filed. This is the first error. 17. When the suit as to immovable property has been decreed and the property is not definitely identified, the defect in the court record caused by overlooking of provisions contained in Order 7 Rule 3 and Order 20 Rule 3 CPC is capable of being cured. After all a successful Plaintiff should not be deprived of the fruits of decree. Resort can be had to Section 152 or Section 47 CPC depending on the facts and circumstances of each case — which of the two provisions would be more appropriate, just and convenient to invoke. Being an inadvertent error, not affecting the merits of the case, it may be corrected under Section 152 CPC by the court which passed the decree by supplying the omission. Alternatively, the exact description of decretal property may be ascertained by the executing court as a question relating to execution, discharge or satisfaction of decree within the meaning of Section 47 CPC. A decree of a competent court should not, as far as practicable, be allowed to be Page No.# 14/20 defeated on account of an accidental slip or omission. In the facts and circumstances of the present case, we think it would be more appropriate to invoke Section 47 CPC.” 26. In view of the law laid down by the Supreme Court in the case of Pratibha Singh (Supra), it is the opinion of this Court that the first substantial question of law so formulated is involved in the instant Appeal. 27. The second substantial question of law pertains to as to whether the findings of facts arrived at by the learned First Appellate Court, in respect to the Patta issued to the Respondent No. 1 overlaps the Patta of the Appellant is perverse or not. 28. There is no quarrel with the settled principle of law that if there is a perversity in the findings of fact, it is a substantial question of law. 29. This Court, having perused the materials on record, finds it relevant to observe that while on one hand it is the claim of the Plaintiff/Appellant, that she had been granted a Patta in respect to a plot of land admeasuring 2 kathas 16 lechas covered by Dag No. 1134 of Patta No. 1009 under Block No. 9 of Dimapur Town. On the other hand, it is the case of the Respondent No. 1 that he had purchased a plot of land admeasuring 1 Katha 15 Lechas covered by Dag No. 172 of Patta No. 70 of Block No. 9 of Page No.# 15/20 Dimapur town. The order which was challenged in the suit dated 04.08.2004 is on account of an overlapping of the land of the Respondent No. 1 to that of the Appellant, and as such, it was opined by the authorities to be a case of dual allotment made. The order dated 04.08.2004 was passed thereby canceling the Patta in favour of the Appellant for that reason. 30. It is well settled that when there is a dispute as regards the boundary, it was the necessity of law that the learned Trial Court or even the learned First Appellate Court, which are Courts of facts ought to have appointed the Commission in terms with Order XXVI Rule 9 of the Code to ascertain the boundaries of the respective lands and on the basis thereof ought to have decided the suit. 31. The said proposition is supported by the judgment of the Supreme Court in the case of Shreepat Vs. Rajendra Prasad & Others reported in JT 2000 (7) SC 379, wherein the Supreme Court observed that when there was a serious dispute regarding the identity of the land in question, it was the duty of the Court before decreeing the suit to have the identity of the property established by appointing a Survey Commissioner to locate the plot in dispute. Paragraph Nos. 3 and 4 of the said judgment being relevant is reproduced herein under: Page No.# 16/20 “3. The principal contention raised by learned Counsel for the Appellant is that though there was a serious dispute with regard to the identity of the land in dispute, whether the land in dispute formed part of Khasra No. 257/3 or Khasra No. 257/1 (sic) courts below did not get the identity established and decreed the suit of the Respondent only on the basis of oral evidence which was not sufficient for the purpose of establishing the identity of the land in dispute at the spot. 4. In our opinion, this contention is correct. Since there was a serious dispute with regard to the area and boundaries of the land in question, especially with regard to its identity, the courts below, before decreeing the suit should have got the identity established by issuing a survey commission to locate the plot in dispute and find out whether it formed part of Khasra No. 257/3 or Khasra No 257/1. This having not been done has resulted in serious miscarriage of justice. We consequently allow the Appeal, set aside the order passed by the courts below as affirmed by the High Court and remand the case to the trial court to dispose of the suit afresh in the light of the observations made above and in accordance with law.” 32. In the instant case, it is seen that the learned First Appellate Court arrived at the finding of fact as regards the overlapping of the land of the Respondent No. 1 to that of the land of the Appellant, without issuing any Commission and as such, the opinion so arrived at as regards the finding of fact pertaining to overlapping was without material evidence. The opinion of the learned First Appellate Court without consideration of material evidence has resulted in perversity. Page No.# 17/20 33. Considering the above, it is therefore the opinion of this Court that the second substantial question of law is also involved in the instant Appeal. 34. Accordingly, the impugned judgment and decree dated 05.03.2020 in First Appeal No. 05/2016 passed by the learned First Appellate Court is required to be set aside and quashed. 35. This Court further takes note of that although an application was filed under Order XLI Rule 27 of the Code read with Order XXVI Rule 9 and Section 151 of the Code before this Court, but taking into account that there would be a requirement of issuance of a Commission under Order XXVI Rule 9 of the Code and further upon submission of such report, which would become a piece of evidence, parties would have a right to cross- examine the Commissioner, and in addition to that, the parties would also have a right to adduce rebuttal evidence, this Court finds the present case to be a fit case for remand under Order XLI Rule 23A of the Code. This Court also finds that it is necessary for the adjudication that Issue No. (xix), framed by the learned Trial Court be modified as the same would aid in the disposal of the Appeal. The modified Issue No. (xix) reads as under: “Whether any part of the Dag No. 1134 of Patta No. 1009 of Page No.# 18/20 Block 9 of Dimapur Town falls within the land of the Respondent No. 1 (Appellant in First Appeal No. 05/2016) which is covered by Dag No. 172 of Patta No. 70 of Block 9 of Dimapur Town?” 36. The Appeal accordingly stands disposed of with the following orders and directions: (i) The judgment and decree passed by the learned First Appellate Court dated 05.03.2020 in First Appeal No. 05/2016 is set aside and quashed. (ii) This Court remands the Appeal before the learned First Appellate Court for a fresh decision on the Appeal and by taking into consideration the modified Issue No. (xix), as mentioned herein above. (iii) As this Court had only modified the Issue No. (xix), there shall be no necessity for filing any additional pleadings or for amendment of the pleadings. (iv) The learned First Appellate Court shall dispose of the said Appeal afresh in accordance with law preferably within the period of 6 months from the date of appearance of the parties. Page No.# 19/20 (v) The learned First Appellate Court is further directed to issue a Commission under Order XXVI Rule 9 of the Code for ascertaining as to whether the plot of land belonging to the Appellant herein (Respondent No. 1 in First Appeal No. 05/2016) is the same plot of land allotted to the Respondent No. 1 (Appellant in First Appeal No. 05/2016). In other words, as to whether any part of Dag No. 1134 of Patta No. 1009 of Block 9 of Dimapur Town falls within Dag No. 172 of Patta No. 70 of Block 9 of Dimapur Town. (vi) Upon submission of the report by the Commissioner, the said report would be evidence in terms with Order XXVI Rule 10 of the Code. The parties would be at liberty to file appropriate applications in terms with Order XXVI Rule 10(2) of the Code seeking right to cross-examine. The learned First Appellate Court shall permit cross-examination of the Commissioner to the extent permissible within the confines of Order XXVI Rule 10(2) of the Code. (vii) This Court further grants liberty to both the parties to adduce further evidence, if so advised, only on the aspect of the modified Issue No. (xix). Page No.# 20/20 (viii) The parties being present before this Court are directed to appear before the learned First Appellate Court on 06.07.2026 for further proceedings of the case. (ix) The Registry shall return the records to the learned First Appellate Court, and ensure that the said records are available before the learned First Appellate Court on or before the date so fixed herein above. In that regard, the Registry may employ the services of a special messenger. 37. With the above observations and directions, the instant Appeal stands disposed of. JUDGE Comparing Assistant