Ka Merlin Marwein v. Ka Prissibon Lyngwa — 1999 DIGILAW 387 (GAU)

The judgment dated 16th June, 1998 passed by the learned Additional Judge, Additional District Council Court, Khasi Hills, Shillong in Title Civil Appeal No. 1 of 1997 thus affirming the judgment and order dated 6th September, 1996 passed by the Presiding Officer, Subordinate District Council Court, Khasi Hills, Shillong in Title Suit No.8 of 1992 if the subject matter under challenge in this revision petition under Rule 6 of the Assam High Court (Jurisdiction over District Council Court) Order, 1954 filed by the present petitioners, 2. The facts of very short compass are as follows: The present, respondents Ka Prissibon Lyngwa as a plaintiff instituted a suit against as defendants including the present petitioners in the Court of the Subordinate District Council, Khasi Hills, Shillong under Title Suit No.8 of 1992 for declaration of her right and title over the suit land and houses and for ejectment and eviction of the defendants 2 to 13 from the suit premises by contending inter alia, that the respondent-plaintiff is the only daughter of late Smti Biribon Lyngwa and sister of late U. Onelson Lyngwa and the defendant Nos 1 and 2 (petitioner Nos 1 and 2 herein) are daughters of late Onelson Lyngwa; that late Smti Biribon Lyngwa, mother of the plaintiff-respondent purchased a plot of land at Jaiaw v Lann Sona Lane, Shillong from one Smti Shanish Syiem (now deceased) on 7th February, 1922 and constructed 3 houses thereon and the said suit land was registered as Holding Nos 157, 158 and 159 of Ward No. 14 in the plaintiff's name and her name is recorded in the related land register maintained by the Shillong Municipal Board; that Smti Biribon Lyngwa died on 18th December, 1952 and after her death the land and houses in suit devolved on the plaintiff-respondent as per Khasi customs and the said houses were rented out to different people and the defendant Nos 3 to 13 are the present tenants; that late Onelson Lyngwa during his live time, used to collect the rent from the tenants on behalf of the mother of the plaintiff and after the death of the plaintiff's mother on behalf of the plaintiff herself and Shri Onelson Lyngwa (now deceased), during his life time stayed alone in Holding No. 159 till his death on 22.11.89; and after his death, the defendant No.2 who was staying on her own house at Mawlai came to stay in Holding No. 159 and wanted to stay free of rent till the first death anniversary of her late father Onelson Lyngwa to which the plaintiff had no objection but after the said death anniversary, the defendant No.2 time and again asked for time to vacate the holding; that, after the death of Shri Onelson Lyngwa, the defendant No. l (petitioner No.l) collected rent from the houses in suit on behalf of the plaintiff-respondent but failed to pay the same to the plaintiff till December, 1991 on some pretext or the other and, as such, the petitioner No.l was asked to stop collecting rent from the tenants from January, 1992 but she did not stop collecting rent and the tenants staying in the said house in suit did not pay rent to the plaintiff and the defendant Nos 1 and 2 were started claiming ownership over the suit land and the houses which clouded the right, title and interest of the plaintiff-respondent over the suit land and the house; and lastly, the plaintiff filed a suit. The suit of the plaintiff-respondent was contested by the defendant/petitioner No.1 by filling written statement thus denying the statement and allegation made by the plaintiff in her plaint and the defendant No.1 claimed that she is the exclusive owner in constructive possession through her tenants i.e. the deferidants ie the defendants 2 to 13 of the suit land and houses. It is also stated by the defendant No.l that the mother of the defendant No.2 predeceased Shri Onelson Lyngwa and thereafter, he married Smti Sarabon Marwein with whom he lived in one of the three houses in suit and she (defendant No. 1) was born and brought up in that house and only in the recent times she and her family members including her mother shifted from the said house to Kench's Trace, Shillong. It is also the case of the defendant No.l that her father Onelson Lyngwa died in the said houses where she and her mother Smti Sarabon Marwein (now deceased) were present and they took care and nursed him at home till his death and during the life time of Onelson Lyngwa he was a hard working man and a building contractor by profession and well to do person and he used to maintain and looked for the welfare of his grand mother and mother till their death and while his mother Biribon Lyngwa was ailing her father took care of it and, apart from it, her father purchased cart (horse) for his younger brother (late) U. Moner and Jeep for his other younger brother late U. Omer so as to enable them to stand on their own feet and also built houses at Mawphlang for all his younger sisters. According to the defendant No.l the land at Jaiaw are Raid lands and any part of it may be occupied for residential or cultivable purposes and the owner is the one in possession thereof ie the present suit land and the houses, who was her father late Onelson Lyngwa and on his death by her. According to the defendant No.l the land at Jaiaw are Raid lands and any part of it may be occupied for residential or cultivable purposes and the owner is the one in possession thereof ie the present suit land and the houses, who was her father late Onelson Lyngwa and on his death by her. The defendant No. 1 also stated that late Ka Biribon Lyngwa was never in possession of the suit land and houses and she or her legal heirs cannot be owner thereof according to Khasi Land Tenure System of acquisition of Raid land and the said document/ sale deed dated 7.2.1922 is being a non registered document, the same is not admissible in evidence and cannot be taken judicial notice of it and mere entry of the name of the plaintiff in the related register maintained by the Shillong Municipality in respect of the said holding does not confer any right and title of the said land and houses upon the plaintiff-respondent and the suit is also bad for non-joinder of party, namely Shillong Municipal Board. The learned Presiding Officer of the Subordinate District Council Court, Khasi Hills, Shillong hereinafter referred to as trial Court framed as many as 16 issues for just determination of the real points in controversies between the parties and the same are quoted below: "(1) Whether the plaintiff has any cause of action to file the instant suit ? (2) Whether the suit is barred by the principle of estoppel, waiver and acquiescence (3) Whether the suit is barred by the customary acquisition of Raid lands ? (4) Whether the suit is bad for non-joinder of the Shillong Municipal Board ? (5) Whether the land and houses in suit originally belonged to (late) Ka Biribon Lyngwa, mother of plaintiff ? (6) How many children (late) Ka Biribon Lyngwa had and whether (late) Ka Biribon Lyngwa was bed ridded till her death ? (7) Whether the plaintiff is entitled to inherit the properties left behind by (late) Ka Biribon Lyngwa ? (8) Who has always been in possession of the suit land and houses ? . (9) Whether Holding No. 157,158 and 159 of Ward No.14, situated within the land in suit, are standing in the name of the plaintiff in the Shillong Municipality? (8) Who has always been in possession of the suit land and houses ? . (9) Whether Holding No. 157,158 and 159 of Ward No.14, situated within the land in suit, are standing in the name of the plaintiff in the Shillong Municipality? (10) Whether the sale deed dated 7.2.1922 is admissible in evidence in view of the fact that it was not registered according to law ? (11) Whether the prevailing market rate of the suit land of the suit houses an land of suit houses and land is Rs. 10 lakhs and whether the plaintiff has paid requisite ad valorem Court fee? (12) Who is/are the rightful owner/owners of the land and houses in suit ? (13) Whether the suit land is a Raid land and what is the customary acquisition of such Raid land ? (14) Whether the defendant No.2 to 13 are liable to be ejected from the premises in suit ? (15) Whether the enumeration of Holding by the Shillong Municipality or Board can confer right and title on the owner of the Holding ? (16) To what other relief/reliefs the parties are entitled to ? 3. The plaintiff produced certain documents including the sale deed dated 7.2.1922 mentioned above and said documents are marked as Exts 1, 2 and 3 and examined 4 witnesses including herself in support of her case while the defendant No. 1 (petitioner No.l) produced certain documents and marked as Exts A-J, S, 2,3,4 and 5 and examined 4 witnesses including herself in support of her case but defendant No.2 did not contest the suit despite proper service of notice upon her and the suit was proceeded exparte against her (defendant No.2) however, the defendant Nos 3 to 13 contested by filing written statement wherein they stated that there is no cause of action for the suit; they paid house rent to late Onelson Lyngwa while he was alive and after his death they had been paying their monthly house rent to the defendant No.l (petitioner No.l) who is only daughter of late Onelson Lyngwa and they are not willing to recognise the plaintiff-respondent as their land lady. At the hearing Mr. At the hearing Mr. B. Lamare, learned d counsel contended that both the Courts below had misappreciated rather misconceived the entire evidence on record while passing the impugned judgments and orders inasmuch as the sale deed dated 7.2.1922 is not admissible in evidence as the same was not registered according to law and the plaintiff could not prove the said document ie the sale deed. According to Mr. Lamare, all the witnesses produced by the plaintiff are related to her and, as such, they are interested witnesses however, both the Courts below gave their decisions and observations on the basis of the statements and evidences so far given by those interested witnesses without any justification. It is also argued by the learned counsel that the father of the petitioner No. 1 late Onelson Lyngwa was all along in exclusive possession of the suit property and neither the respondent nor her mother, now deceased, was ever in possession of the same at any point of time and this aspect was not J taken into consideration by both the learned Courts below and, as such, the impugned judgments and orders deserve to be set aside. The defendant Nos 2 to 13 who are the tenants of the said houses specifically admitted in their written statement that late Onelson Lyngwa was the original owner of the suit property and after his death the defendant petitioner No. 1 is the absolute owner of the suit property and this important aspect was not properly considered and examined by both the Courts below Mr. Lamare argued. According to the learned counsel, no permission was obtained either by Ka Biribon Lyngwa, mother of the plaintiff or the plaintiff from the Shillong Municipal Board for construction of the suit houses and, as such claim of the plaintiff that the houses were constructed by her is absolutely a false and concocted story which cannot be taken into consideration while deciding the suit in her favour. Mere recording of the name of the plaintiff or her mother (now deceased) in the related register maintained by the Shillong Municipal Board in respect of the said 3 holdings/suit property do not confer right, title or interest of it upon the plaintiff-respondent and, apart from it, the a plaintiff-respondent simply produced the alleged sale deed but did not adduce any evidence to corroborate or support the same and, as such, the respondent-plaintiff had failed to prove the said document ie the sale deed. Both the learned Courts below ought to have dismissed the suit filed by the plaintiff-respondent as the plaintiff has no any right, title or interest over the suit property Mr. Lamare contended. 4. Replying to the arguments so far advanced by the learned counsel for the petitioners, Mr.A. Massar, learned counsel assisted by Mr. TT Diengdoh, learned counsel for the respondent-plaintiff at the very outset submitted that the main defendant No. 2 did not contest the suit of the plaintiff and, over and above this, the defendant Nos 3 to 13 simply filed written statement but they did not prove their case and the case was also proceeded exparte rather they did not appear before the learned trial Court at the time of the final hearing of the case and it is only the petitioner No. 1 (defendant No. 1) who contested the suit of the plaintiff-respondent. The present revision petition is also not maintainable inasmuch as the defendant-petitioner No.l only signed the revision petition and swear the affidavit by contending inter alia, that she is competent to swear the affidavit for herself and all the petitioners but she did not make any statement in the affidavit that she was authorised by other petitioners ie the petitioner Nos 2 to 9 for filing the present revision petition and, apart from it, none of the petitioner Nos 2, 3, 4, 5, 6, 7, 8 and 9 signed or put their signature on this revision petitions. The learned counsel also argued that the concurrent findings had been made by both the learned Courts below in all the related issues and such concurrent findings were made on the available evidence on record and, as such there is no infirmity or illegality in the impugned judgments and order. 5. The learned counsel also argued that the concurrent findings had been made by both the learned Courts below in all the related issues and such concurrent findings were made on the available evidence on record and, as such there is no infirmity or illegality in the impugned judgments and order. 5. Now this Court is to see and examine as to whether the findings so far arrived by the learned Courts below are contrary to the mandatory provisions of law; or the same are based on inadmissible evidence or no evidence which may have produced error or defects in the decision of the case on its own merit or not. 6. While discussing and dealing with the main related issues being Issue Nos 7, 9, 10 and 12, the learned trial Court had perused the evidences of PWs and DWs and also the exhibited documents including the sale deed dated 7.12.1922 and was of the view that the 3 suit houses are standing in the name of the plaintiff and the plaintiff-respondent is entitled to inherit the properties in suit thus deciding those 4 issues accordingly. The defendant No.l in her examination-in-chief stated that her father late Onelson Lyngwa purchased the land in suit but in her cross-examination she admitted that she could not know the name of the person from whom her father purchased the land in suit in the year 1922 and executed a sale deed and she admitted in her cross-examination that the alleged sale deed of 1992 in favour of her father was not filed in-connection with the main suit and, as such, she could not establish this plea. In fact, plea pertaining to the purchase of the suit land by her father from a person is/was not taken in her written statement but, while adducing the evidence, she asserted this fact and made this evidence which is against the pleadings of the defendant No.l and the same is not permissible under law and this aspect was minutely examined by the learned trial Court and also affirmed by the learned appellate Court below. According a to me, the sale deed dated 7.2.1922 marked as Ext I is admissible in evidence as the same did not require registration of it as the relevant time as the Registration Act was not in force at the relevant time ie at the time of the execution of the said sale deed dated 7.2.1922 (Ext 1) to and in favour of Smti Biribon Lyngwa (late mother of the plaintiff-respondent) and more so, the document is of more than 70 years old at the time of filing of the main suit by the plaintiff-respondent. The case of the defendant No.l is that the said sale deed dated 7.2.1922 is inadmissible document in the eye of law as the same was not registered according to law but the defendant No. 1 did not deny the existence of this document marked as Ext 1 ie the said sale deed. At this stage, I hereby recall the provisions of section 90 of the Indian Evidence Act, 1872 and the same is quoted below : "90. Presumption as to documents thirty years old - Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person handwriting, and, in case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested. Explanation - Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or the circumstances of the particular case are such as to render such an origin probable. This explanation applies also to section 81. “According to me, the said sale deed (Ext 1) was duly executed by the vendor concerned in favour of the plaintiff's mother in the year 1922 and the same was produced by the plaintiff in connection with the said case as the same has been in her possession for the long time and the said document was also duly proved. “According to me, the said sale deed (Ext 1) was duly executed by the vendor concerned in favour of the plaintiff's mother in the year 1922 and the same was produced by the plaintiff in connection with the said case as the same has been in her possession for the long time and the said document was also duly proved. This legal aspect was also examined and considered by both the learned Courts below and made the concurrent findings on the said issue. It is also evidence on record that the suit land is a Raid land and a plain reading of the sale deed dated 7.2.1922 (Ext 1) shows that the land in suit has been transformed to a private landed property and belongs to late Biribon Lyngwa and after the death of Smti Biribon Lyngwa, the land and 3 houses standing thereon devolved upon the plaintiff as she is the only surviving daughter of the original owner late Smti Biribon Lyngwa. It is also admitted by the defendant No. 1 in her evidence that the plaintiff is entitled to inherit the properties of her mother late Biribon Lyngwa. According to Khasi custom the plaintiff has the right to succeed the suit properties for following reason. From the evidence on record it is established that the suit property originally belonged to late Smti Biribon Lyngwa, mother of the plaintiff by virtue of the sale deed dated 7.2.1922 (Ext l>and the deceased had several children and all are now died except the plaintiff Smti Prissibon Lyngwa and according to Khasi culture late Smti Jursibon Lyngwa, the youngest daughter of the deceased is entitled to inherit to first instance from her mother if alive and she would have had the preferential right, but Ka Jlursibon Lyngwa died without any issue and, as such, the plaintiff as second youngest sister, has a right to succeed the suit properties and, accordingly, the plaintiff has right, title and interest over the suit properties and she is the absolute owner of the same. On bare perusal of the evidence on record it is established that he defendant No.1 could not established her case. This Court need not go more into the depth as there is enough evidence on record for establishing the fact that the plaintiff-respondent is the absolute owner and possessor of the suit properties. On bare perusal of the evidence on record it is established that he defendant No.1 could not established her case. This Court need not go more into the depth as there is enough evidence on record for establishing the fact that the plaintiff-respondent is the absolute owner and possessor of the suit properties. In my considered view, both the learned Courts below had dealt with all the related issues extensively and made/ given the concurrent findings on it with reasons on the available evidence on record. The first appellate Court rightly held that the defendant No.l is not in a position to show her late father's ownership over the suit land and she could not establish and prove that suit properties and the self acquired properties of her father late Onelson Lyngwa and such finding was made on the basis of the available materials on record. 7. It is well settled that this Court while exercising its revisional jurisdiction conferred upon it, the High Court generally and ordinarily do not interfere with the concurrent findings so far arrived by the learned trial Court as well as the first appellate Court on the simple ground on being even erroneous unless there is substantial error or defect in the procedure prescribed by law; which may have produced error or defect in the decision of the case on its own merit and the High Court ought not to have interfered with such concurrent findings unless, the same is contrary to the mandatory provisions of law or based on inadmissible evidence or on no evidence. Here in the instant case, both the learned Courts below made those concurrent findings on the available evidence on record and also after proper application of judicial mind in the matter. 8. For the reasons, observations and discussions made above, the petitioners herein could not make out a case to justify the interference with the impugned judgments and orders passed by the Presiding Officer of the Subordinate District Council Court, Khasi Hills, Shillong and the Additional Judge, Additional District Council Court, Khasi Hills, Shillong in the connected cases. 8. For the reasons, observations and discussions made above, the petitioners herein could not make out a case to justify the interference with the impugned judgments and orders passed by the Presiding Officer of the Subordinate District Council Court, Khasi Hills, Shillong and the Additional Judge, Additional District Council Court, Khasi Hills, Shillong in the connected cases. In the result, this revision petition is devoid of merit and, accordingly, it is dismissed thus affirming the impugned judgments and orders passed by the learned trial Court as well as the first appellate Court in the connected cases viz, Title Suit No.8 of 1992 and Title Civil Appeal No. 1 of 1997 respectively, but no order as to costs.