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1996 DIGILAW 110 (GAU)

Ph. Munindra Sharma v. Likmabam Sarati Singh

1996-06-12

H.K.SEMA, P.K.GHOSH

body1996
This writ appeal is directed against the judgment and order dated 12.3.93 passed by the learned Single Judge in CR No.141 of 1980. 2. We have heard Mr. T. Nandakumar, learned counsel for the appellant as well as Mr. H. Raghumani Singh, learned counsel for the respondent/writ petitioner. 3. The dispute relates to a piece of land measuring 10' x 20' under CS Dag No.3206 Sheet No. 17 of the Imphal Municipality for business purpose. The appellant herein has been allotted land purportedly in exercise of the power under section 14(2) of the Manipur Land Revenue and Land Reforms Act, 1960 (hereinafter MLR and LR Act) by an order dated 24.4.79. This allotment order has been challenged by the respondent herein before the Revenue Tribunal without any success. The respondent therein also filed a suit, namely, Original Suit No.9 of 1980 which has been dismissed in default on 5.2.81. In this Civil Rule the respondent prayed inter alia that the application filed by the respondent/writ petitioner should have been considered in preference to the respondent No. 1. 4. The Civil Rule was heard by learned Single Judge, and by its judgment and order dated 12.3.93 disposed of the Civil Rule with a direction to the Government for reconsideration of the application filed by the writ petitioner, after quashing the allotment order. 5. The thrtist of the argument of Mr. T. Nandakumar, learned counsel for the appellant is that, since the petitioner died on 13.2.89 during the pendency of the Civil Rule, and since the rights was personal to the petitioner, no right to sue was survived, and therefore, the learned Single Judge has committed error of law in granting the relief prayed for by the writ petitioner. In this connection, Mr. T. Nandakumar has referred to us to a decision of this Court in Md. Jinatulla, s/o late Tomba Mia of Chaobok Village PS Lilong vs. The State of Manipur & 63 others, disposed of by the learned Single Judge of this Court on 18.8.80 in CR No.59 of 1976. This case referred to above was similar to the issues raised before us. In that case, the learned Single Judge was considering whether the substitution by legal heir can be allowed in writ proceeding. This case referred to above was similar to the issues raised before us. In that case, the learned Single Judge was considering whether the substitution by legal heir can be allowed in writ proceeding. There also the case of the petitioner was that, though he had filed an application for settlement of the land, the same has not been considered by the Deputy Commissioner and selected respondent Nos.5 to 34 for settlement of the land. In that case also the petitioner died during the pendency of the wot petition as well as application for consideration for allotment of land. The learned Single Judge after hearing the parties had held that, the rights in question is personal to the petitioner, and therefore, would perish with the dead of the person concern -1. In other words, the right to sue does not survived to the members of the family. 6. Mr. T. Nandakumar also referred to us the decision of the Supreme Court rendered in C. Buchivenkata Rao (dead by his legal representatives) vs. Union of India & others, AIR 1972 SC 1324 . There, the facts of the case is like this. An application was filed for grant of Mining lease. During the pendency of the application the applicant died. The question raised before the Supreme Court was whether the right to sue survive or not after the dead of the applicant. It was also held by the Supreme Court that the right was personal to the applicant and since the applicant died during the pendency of the application, her legal representative has no right to continue with the appeal. 7. Mr. Nandakumar has also referred to us the decision of the Supreme Court rendered in Syedna Taher Saifuddin Saheb vs. State of Bombay, AIR 1958 SC253. The facts of the case in that case was, the plaintiff filed a suit for declaration that the order of excommunication passed by the defendants were invalid and for other consequential reliefs. The plaintiff died during the pendency , of the suit. After plaintiff died, his daughter applied to be substituted in his place. It was held by the Supreme Court that the claim of the plaintiff was that he was wrongly excommunicated and that was an action personal to him. The plaintiff died during the pendency , of the suit. After plaintiff died, his daughter applied to be substituted in his place. It was held by the Supreme Court that the claim of the plaintiff was that he was wrongly excommunicated and that was an action personal to him. It was further held by the Supreme Court that on the principle of 'actio personalia moritur cum persona' when he died, the suit should abate. 8. In the backdrop of the law laid down by the Apex Court, let us now examine the present problem at hand. It was not the case of the writ petitioner that the land had been allotted to her, in such a case the position would have been different. The right would definitely survive even after her dead. But the prayer of the petitioner was that, an application was filed for allotment of land to the petitioner in preference to the respondent No. 1. During the pendency of the Civil Rule, petitioner died on 13.2.89. Therefore, the right was personal to a person concerned, and does not survive after the person concerned expired. 9. For the reasons aforestated, the judgment and order dated 12.3.93 passed by the learned Single Judge in Civil Rule No. 141 of 1980 is clearly on erroneous consideration of law, and therefore deserves to be set aside. We accordingly set aside the judgment and order dated 12.3.93 passed by the learned Single Judge in Civil Rule No. 141 of 1980. With aforesaid direction, this appeal is allowed. No costs. Writ petition stands dismissed.