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2005 DIGILAW 150 (GAU)

Chalthiangi v. State of Mizoram

2005-02-23

T.NANDAKUMAR SINGH

body2005
JUDGMENT T. Nandakumar Singh, J. 1. The present Title Suit No. 2 of 1990 of the Court of Additional District Magistrate (J), Lunglei District has a very chequered history. This case has come up for the second time before this Court after the first round from Trial Court upto the Division Bench of this Court. It appears that after the two judgment & orders of the learned Trial Court and Judgment & Order of this Court dated 25.5.2001, there is not much dispute about the facts between the present Appellant (Plaintiff of the Title Suit No. 2/90) and present Respondents, i.e. Defendant Nos. 1-8 of the Title Suit No. 2/90. As such, in order to avoid repetition of facts and repeated discussion of the statements of PWs and DWs, this Appeal is being decided on the question of law referring to the admitted facts as and when necessary by mentioning the fact and evidence in the most precised terms. 2. Heard Mr. George Raju, learned counsel for the Appellant and Mr. N. Sailo, learned Govt. Advocate for the Respondents. 3. This Appeal is directed against the Judgment & Decree dated 27.07.2004 of the learned Trial Court passed in Title Suit No. 2 of 1990 of the Court of Addl. Deputy Commissioner (J), Lunglei, Mizoram for the second time dismissing the Suit of the Plaintiff/Appellant after this Court passed Judgment & Decree dated 25.5.2001 in R.F.A. No. 5 of 2000 by allowing the Appeal against the Judgment & Decree dated 21.6.2000 passed by the Trial Court for dismissing the said Title Suit No. 2 of 1990. 4. Admittedly, the Suit Land of the Title Suit No. 2 of 1990 was settled in favour of Shri Ngurchhina, (husband of the present Appellant) on 2.2.1988 vide Land Settlement Certificate (LSC) No. 57 of 1988. By virtue of the said LSC, in favour of the Shri Ngurchhina, he deserves heritable and transferable right over the Suit Land. Along with the LSC, Non-encumbrance. Certificate was also issued, which indicated that the Suit Land allotted to him was free from all Non-encumbrance as per the record maintained by the Revenue Office. On 16.3.1989, Shri Ngurchhina went to Lunglei in order to start construction of building within the Suit Land and he found that Defendant No. 3, (Superintendent of Police) with his men had started developing the Suit Land for their own use. On 16.3.1989, Shri Ngurchhina went to Lunglei in order to start construction of building within the Suit Land and he found that Defendant No. 3, (Superintendent of Police) with his men had started developing the Suit Land for their own use. The Superintendent of Police, Lunglei District claims that the Suit Land was given to the Police Department long back vide Pass No. Misc. 88 of 1953 and it was latter on converted into DPL No. 195 of 1980 and as the Suit Land had already been allotted to Home Department for the Police complex, question of allotting the same to Mr. Ngurchhina does not arise. Shri Ngurchhina had approached respondent Nos. 4-8 (Defendant Nos. 4-8) requesting them to evict Respondent No. 3, the Superintendent of Police, Lunglei District (Defendant No. 3) from the Suit Land covered by LSC No. 57 of 1988 and then to give vacant possession to him. But they did not give any heed to the said request of Ngurchhina (Plaintiff). Having no alternative he filed the Title Suit No. 2 of 1990 in the Court of Addl. District Magistrate (J), Lunglei District against the present Respondents. The reliefs sought for in the Title Suit No. 2 of 1990 are : "(a) Let a decree be passed declaring that the plaintiff is the legal owner of the tend covered under LSC No. 57 of 1988 and the plaintiff has right, title over the suit land. (b) By way of permanent/mandatory injunction the defendants be restrained from passing any orders detrimental to the plaintiff in respect of the suit land. (c) By way of permanent/mandatory injunction the defendants be restrained from erecting any structures within the suit land. (d) Let the decree be passed declaring that the structures enacted by the defendant No. 3 within the suit land in spite of the objection raised by the plaintiff be illegal. (e) Let the rent calculated as per the provisions of Mizoram Urban Rent Control Act be decreed in favour of the plaintiff for the occupation of the suit land by the defendant No.3. (f) Let a decree be passed ordering the defendants to give vacant possession of the land covered under LSC No. 57 of 1988 to the plaintiff. (e) Let the rent calculated as per the provisions of Mizoram Urban Rent Control Act be decreed in favour of the plaintiff for the occupation of the suit land by the defendant No.3. (f) Let a decree be passed ordering the defendants to give vacant possession of the land covered under LSC No. 57 of 1988 to the plaintiff. If the defendants want to acquire the suit land for public purposes, the defendants be directed to pay to the plaintiff adequate compensation calculated as per the provisions of the Land Acquisition laws. (g) Let the cost of the suit be decreed in favour of the plaintiff. (h) Let a decree be passed in favour of the plaintiff against the defendants for any other and further reliefs to which the plaintiff is entitled as per law justice equity and good conscience." 5. Respondents/Defendants also contested the Suit by filing written statements, taking the plea that the Suit Land had already been given to the Police Department vide Pass No. Misc. 88 of 1953 and it was converted to Pass No. DPL 195 of 1980, the Sit Land has been in their possession on the basis of the said Pass No. Misc. 88 of 1993 and DPL No. 195 of 1980. As the Suit Land was not a vacant land at the time of filing application for settlement by Ngurchhina (Plaintiff) in the year, 1986, the same cannot be settled/allotted to him vide LSC No. 57 of 1988. The Trial Court framed as many as 7 (seven) issues, which are as follows : "(1) Whether the present suit is maintainable in its present form and style ? (2) Whether the suit is bad for non-joinder or mis-joinder of parties ? (3) Whether the plaintiff have any cause of action due to the State Government ? (4) Whether the land covered by LSC No. 57 of 88 falls within Pass No. Misc. 88/83 and Pass No. BPL 195 of 1980 ? (5) Whether the defendants are having the ownership over the disputed land? (6) Whether the Settlement holder has better right than the Pass holder ? (7) Whether the plaintiff is entitled to any reliefs, if so, to what extent ?" 6. 88/83 and Pass No. BPL 195 of 1980 ? (5) Whether the defendants are having the ownership over the disputed land? (6) Whether the Settlement holder has better right than the Pass holder ? (7) Whether the plaintiff is entitled to any reliefs, if so, to what extent ?" 6. The Plaintiff (Ngurchhina) died during the pendency of the Title Suit No. 2 of 1990 and on his death the present Appellant has been brought as LR of the Plaintiff, on record. Plaintiff (Ngurchhina), himself and two other witnesses namely, (1) Shri LH Vannawla, Field Supervisor (Rtd.) and Shri Laltawnga, former ASO-II (Rtd. MCS) were examined and 14 (fourteen) documents were exhibited from the plaintiff's side without objection. Those 14 (fourteen) documents are : - (1) Ext.P-1 - LSC No. 57/88 dt. 2.2.1988. (2) Ext.P-2 - Boundary Description of LSC. No. 57/88. (3) Ext.P-3 - Non-encumbrance Certificate dt. 2.2.88. (4) Ext.P-4 - No Objection Certificate dt. 2.2.88. (5) Ext.P-5 - Site Plan (Sketch Map) of LSC No. 57/88. (6) Ext.P-6 - Tax Paid Receipt by plaintiff. (7) Ext.P-7 - Receipt of fee for LSC No. 57/88. (8) Ext.P-8 - House Tax Payee Certificate. (9) Ext.P-9 - Notice Under Section 80, CPC with Receipt of A/D Registered Receipts. (10) Ext.P-10.11 & 12 - Registered Receipts. (11) Ext.P-13 & 14 - Acknowledgement Cards. (12) Ext.P.15 - Copy of letter sent by plaintiff Secretary. DLR & S. (13) Ext.P-16 - Copy of letter sent by plaintiff, SP, Lunglei. (14) Ext.P-17 - Copy of letter addressed to ASO-I, Lunglei. 7. But on the side of the Defendants/Respondents, no documents were put in evidence and exhibited in the course of trial of the Title Suit No. 2 of 1990. Copies of the Permit Number, i.e., Misc. Pass 88 of 1953 and DPL No. 195 of 1980 were not exhibited for forming a part of the evidence in support of the Respondents/Defendants. The Trial Court, i.e., Addl. District Magistrate (J), Lunglei passed Judgment & Order dated 21.6.2000 for dismissing the Title Suit No. 2 of 1999 with the declaration and direction that : "the plaintiff fails in this Title Suit and the defendant No. 3 through, Secretary, Home Department, Government of Mizoram is declared as the legal and rightful owner of the land covered under Pass No. 195 of 1980. The Director Land & Revenue Department is directed to find alternate site for the plaintiff in lieu of LSC No. 57 of 1988". 8. Against the said Judgment & Order of the Trial Court dated 21.6.2000 passed in Title Suit No. 2 of 1990, the present Appellant preferred an Appeal being RFA No. 5 of 2000 before this Court. This Court by passing Judgment & Order dated 25.5.2001 allowed the said RFA No. 5 of 2000, remitted the Title Suit No. 2 of 1990 to the learned Trial Court. Paragraph Nos. 18 and 19 of the said Judgment & Order is quoted hereunder : "18. The learned Govt. Advocate submits that since the suit land was not a vacant land at the relevant time, it could not be settled with the plaintiff. But having regard to the definition of "vacant land" as available under Rule 2(3) of the related rules of 1967, I am of the considered opinion that unless a land is proved to be allotted in favour of others whether occupied or unoccupied, the land would be treated to be a vacant land for the purpose of Mizo District (Land and Revenue) Rules, 1967. The existence of a dilapidated building in the suit land cannot constitute a presumption in favour of the police department or anybody else that it was allotted to it or them unless the same is proved in accordance with law. Unauthorised construction erected by any person in the Govt. land cannot be held to be legal occupation in favour of that person. That legal aspect has escaped the notice of the learned court below. 19. Under the aforesaid discussion and legal position, I am of the considered opinion to hold that the learned trial court miserably failed to take into consideration the legally admissible evidence as led and produced by tile plaintiff and also the learned trial court unduly had taken into consideration the non-admissible evidence, viz. Pass bearing No. DPL 195/80 issued in favour of the Home Department and Pass bearing No. Misc. Pass bearing No. DPL 195/80 issued in favour of the Home Department and Pass bearing No. Misc. 88/53 issued in favour of the police department, certified copy of the map of the police complex and as such the judgment rendered by the learned trial court stands vitiated due to appreciation of non-admissible evidence by the learned trial court and as such the impugned judgment and decree passed by the learned court below is hereby reversed and set aside." 9. The reason for remitting the Title Suit No. 2 of 1990 to the Trial Court, again under the said Judgment & Order of this Court dated 25.5.2001 was to allow the Respondents / Defendants to adduce in evidence the purported Pass No. DPL 195 of 1980, Misc. Pass No. 88 of 1953 and Certified copy of the map of the police complex and also that at the same time, Appellant (Plaintiff) was to be allowed to cross-examine witnesses who come forward to tender those documents and also the Appellant (Plaintiff) to adduce rebuttal evidence against the aforesaid documentary evidence subject to payment of Rs. 5,000/- as cost to the present Appellant. 10. Against the said Judgment & Order of this Court (Single Bench) dated 25.5.2001 passed in RFA No. 5 of 2000, an Appeal being RSA No. 2 of 2001 was filed before the Division Bench of this Court and the Division Bench of this Court by passing Judgment & Order dated 25.9.2001 bad dismissed the same. 11. After the Title Suit No. 2 of 1990 was remitted to the Trial Court under the Judgment & Order of this Court dated 25.5.2001, the Respondents produced 4 (four) documents which exhibited as Ext. D/1 to D/4, which are as under : (1) Exhibit D-I - Misc. Pass No. 88 of 1953 (2) Exhibit D-II - Pass No. DPL 195 of 1980 (3) Exhibit D-III - Boundary Description of DPL No. 195 of 1980 (4) Exhibit D-IV - Sketch Map of Pass No. DPL. No. 195 of 1980. On the side of the Respondents two witnesses namely, Shri Lallura ASO-I, Lunglei and Shri Ngurchhina, Assistant in the Office of the Director, Revenue Department were examined as defendants, witnesses. No. 195 of 1980. On the side of the Respondents two witnesses namely, Shri Lallura ASO-I, Lunglei and Shri Ngurchhina, Assistant in the Office of the Director, Revenue Department were examined as defendants, witnesses. The learned Trial Court passed the impugned Judgment & Decree dated 27.7.2004 for dismissing the Title Suit No. 2 of 1990 with the Decree and Order that the Suit Land, i.e., site covered by LSC No. 57 of 1988 issued in favour of the plaintiff falls within the Pass No. DPL. No. 195 of 1980 and as such, the Secretary, Home Department, Govt. of Mizoram is the rightful and legal owner of the said land. Defendants No. 5 to 8, Department of Land Revenue and Settlement, Govt. of Mizoram is directed to cancel LSC No. 57 of 1988 and allot another site to the plaintiff. In this regard, the plaintiff is at liberty to approach Revenue Department. The only grounds and reasons in the impugned Judgment & Order dated 27.7.2004 for dismissing the Title Suit No. 2 of 1990 was that the Pass No. DPL 195 of 1980 was issued in accordance with the provisions of Act and Rules having the force of law at the time of allotment. As the Allottee has been occupying the Suit land since the date of allotment without canceling the said Pass, i.e. Pass No. DPL 195 of 1980, the LSC No. 57 of 1988 cannot be issued in favour of the Appellant/Plaintiff. 12. In the present Appeal, both the learned counsel for Appellant and Respondents, in the above admitted factual background, had submitted that only legal points which are required to be decided would be that : (1) Whether or not the Suit Land was "vacant land" according to Mizo District (Land & Revenue) Act, 1956 and Rules framed thereunder, i.e., Mizo District (Land & Revenue) Rules, 1967 for the purpose of permanent settlement to the Plaintiff by issuing LSC No. 57 of 1988 ? (2) Miss. Pass No. 88 of 1953 was issued under which provision of law and whether or not like Pass DPL No. 195 of 1980 is the "Periodic Lease" mentioned m Mizo District (Land & Revenue) Rules, 1967 ? 13. For the sake of convenience, the two points formulated above are taken up jointly. Mr. N. Sailo, learned GA appearing for the Respondents submitted strenuously with confidence that the Permit, i.e. Miss. 13. For the sake of convenience, the two points formulated above are taken up jointly. Mr. N. Sailo, learned GA appearing for the Respondents submitted strenuously with confidence that the Permit, i.e. Miss. Pass No. 88 of 1953 was issued by the Competent Authority by exercising the power Under Section 3 of the Lushai Hills District (House Site) Act, 1953, relevant portion of Section 3 is quoted hereunder : "3. Allotment of sites : - (1) Subject to the provisions of Sub-section (2) of this section, a Village Council shall be competent to allot sites within its jurisdiction for residential and other non-agricultural purpose with the exception of shops and stalls which include hotels and other business houses of the same nature. Notwithstanding anything contained in this act, the Administrator shall have the power to intervene in all cases of disputes over any sites within the village and me decision of the Administrator shall be final." 14. The Mizo District (Land & Revenue) Act, 1956 was enacted and come into effect in the year, 1956. After the commencement of Mizo District (Land & Revenue), Act 1956, it is mandatory to take up necessary steps according to Section 4, which is quoted hereunder : "4. No person shall acquire by length of possession or otherwise any right over land deposed of, allotted or occupied before the commencement of this Act unless such land had been recorded and registered either in the Deputy Commissioner's Office or the District Council's Office." (Emphasis supplier) 15. None of the Defendants' witnesses, i.e., Shri Lallura, ASO-I, Lunglei and Shri Ngurchhina, Assistant in the office of the Director, Revenue Department mentioned even a word about the action taken up by the Defendants/Respondents in compliance with the mandatory requirements of Section 4 in respect of Permit Misc. Pass No. 88 of 1953 (Ext. D-I). In the absence of such action the right of Defendants/Respondents under Misc. Pass No. 88 of 1953 in respect of the Suit Land cannot subsist. The further case of Defendants/Respondents that Pass No. DPL No. 195 of 1980 is a "Periodic Lease" mentioned in the Mizo District (Land & Revenue) Rules, 1967 cannot be accepted as there is absolutely no evidence for following the procedures for getting "Periodic Lease" even if Pass No. DPL 195 of 1980 is taken as a "Periodic Lease". The further case of Defendants/Respondents that Pass No. DPL No. 195 of 1980 is a "Periodic Lease" mentioned in the Mizo District (Land & Revenue) Rules, 1967 cannot be accepted as there is absolutely no evidence for following the procedures for getting "Periodic Lease" even if Pass No. DPL 195 of 1980 is taken as a "Periodic Lease". Rule 14 of the Mizo District (Land & Revenue) Rules, 1967 in a very clear term mentioned that the preceding Rules shall apply in granting a Periodic Lease of land" (emphasis/supplier). The Respondents/Defendants did not produce any evidence to show that proceeding contemplated in Rules 6 to 13 of the Mizo District (Land & Revenue) Rules, 1967 was taken up for the purpose of granting Pass No. DPL 195 of 1980 (even if it is taken as a Periodic Lease). The term "DPL/Pass" are not mentioned anywhere, either in the Mizo District (Land & Revenue) Act, 1956 or Mizo District (Land & Revenue) Rules, 1967. According to the accepted Principles, for interpretation of Statute, there cannot be interpretation of any Statute by adding the word(s) not mentioned in the Statute itself. 16. In the present case, for the reasons mentioned above Pass No. DPL 195 of 1980 (Ext. D-II) was not issued in compliance with the provisions of Mizo District (Land & Revenue) Act, 1956 and Rules framed thereunder. Over and above the present Pass No. DPL 195 of 1980 (Ext. D-II) cannot be the "Periodic Lease" mentioned in the Mizo District (Land & Revenue) Rules, 1967. Therefore, the Pass No. DPL 195 of 1980 cannot create any sort of right contemplated in the Mizo District (Land & Revenue) Act, 1956 and Rules framed thereunder in favour of the Respondents/Defendants in respect of the Suit Land. 17. The term "vacant land" is defined in Rule 2(3) of the Mizo District (Land & Revenue) Rule, 1967, which is quoted hereunder : "Rule 2(3). 17. The term "vacant land" is defined in Rule 2(3) of the Mizo District (Land & Revenue) Rule, 1967, which is quoted hereunder : "Rule 2(3). "Vacant Land" means any land which has not been allotted to any one, whether occupied or unoccupied and over which nobody has acquired any right under the Act, and shall not include any land within the state Reserved Forests, if any and all lands actually covered by Government and public roads." From bare perusal of the Rule 2 Sub-rule (3) it is crystal clear that "vacant land" means a land over which nobody has acquired any right under the Act, i.e., Mizo District (Land & Revenue) Act, 1956 and it may even be a land already occupied by the unauthorized persons. Therefore, occupation or non-occupation of the land is not the criteria for deciding as to whether a particular land is a "Vacant Land" under the Mizo District (Land & Revenue) Act, 1956 and Rules framed thereunder for the purpose of permanent settlement of the vacant land by issuing Land Settlement Certificates. In the case in hand, it is admitted fact of both the Appellant and Respondents that the Suit Land was settled in favour of the Plaintiff, (present respondent's husband) on 2.2.1988 vide Land Settlement Certificate No. 57 of 1988 and Non-encumbrance Certificate had already been issued by the Revenue Authority. But only dispute is that the Suit Land was not vacant at the time of issuing the said LSC No. 57 of 1988 in compliance of the provisions of the said Land Revenue Act, 1956 and Rules framed thereunder. 18. As discussed above, according to the provisions of the said Land Revenue Act, 1956 and Rules framed thereunder the Suit Land was a vacant land in the year 1988 in as much as nobody has acquired any right under the said Land Revenue Act of 1956 over the Suit Land in the year, 1988, i.e., at the time of settlement in favour of the plaintiff. 19. Under the above discussions and well settled legal positions, I am of the considered view that the learned Trial Court had committed error in law in passing the impugned Judgment & Order dated 27.07.2004 in Title Suit No. 2 of 1990 and a such, the impugned Judgment & Decree passed by the Learned Trial Court below is hereby set aside. Accordingly it is........ Accordingly it is........ "ORDERED AND DECREED THAT" The Plaintiff is the legal owner of the Suit Land covered by LSC No. 57 of 1988. Defendants/Respondents shall give vacant possession of the Suit Land to the Plaintiff within a period of 4 (four) months and shall also pay the rent of the Suit Land at the rate calculated as per the provisions of Mizoram Urban Rent Control Act for the period from 16.3.1989 till the vacant delivery of the Suit Land to the Plaintiff or, if the Defendants/Respondents want to acquire the Suit Land for public purposes they shall pay adequate compensation calculated as per the provisions of the Land Acquisition Law to the Plaintiff. With the above observation and direction. Appeal is allowed and the Title Suit No. 2 of 1990 is decreed to the extent mentioned above. No order as to costs. Appeal allowed.