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2008 DIGILAW 220 (GAU)

Iris Mynsong v. Milda Myrboh

2008-03-14

MAIBAM B.K.SINGH

body2008
JUDGMENT Maibam B.K. Singh, J. 1. Being aggrieved by the judgment, dated 26.08.2005 passed by the Judge, District Council Court, Shillong in Title Civil Appeal No. 2 of 2005 dismissing the appeal as against the judgment which had been passed by the Addl. Subordinate District Council Court, Khyrim Syiemship, Smiton 25.02.2005 in Title Suit No. 2 of 1994 and also by the order dated 03.04.2006 passed by the Judge, District Council Court, Shillong in Review Petition No. 2 of 2005 rejecting the prayer for reviewing the above said judgment dated 26.08.2005 passed by the Judge, District Council Court, Shillong in Title Civil Appeal No. 2 of 2005, this revision application has been filed challenging the legality and propriety of the above said judgments and order. 2. Upon hearing Mr. H.S. Thangkhiew, learned Counsel appearing on behalf of the petitioner and Mr. K.S. Kynjing, learned senior counsel assisted by Mr. S.M. Suna, learned Counsel appearing on behalf of the respondent, the following facts are ascertained: The petitioner, hereinafter referred to as the plaintiff, instituted a suit being Title Suit No. 2 of 1994 in the Court of the Addl. Subordinate District Council Court, Khyrim Syiemship, Smit for declaration of his right-and-title in respect of the suit land known as "Lum Sohproo It Phreit" situated at Puriang village and also for issuance of a permanent injunction order in respect of the same land as against the defendant, hereinafter referred to as the defendant. The suit land is described in the schedule of the plant. The defendant contested the suit by filing her written statement. There was no counter claim from the side of the defendant. The Trial Court framed as many as eleven issues, the said issues are: Issue No. 1 - Whether the plaintiff has any valid reason to file the instant suit? Issue No. 2 - Whether the instant suit is maintainable? Issue No. 3 - Whether there is any mound that separates Lum Sohproo It Phreit from the land Lum Khasing belonging to defendant No. 1? Issue No. 4 - Whether any destruction/demolition occurred in the mound that separates Lum Sohproo It Phreit and Lum Khasing? Issue No. 5 - Whether the house of Ka solinda Mynsong is situated at Lum Sohproo It Phreit? Issue No. 6 - Whether there are any pine trees within the disputed land (Lum Sohproo It Phreit)? Issue No. 4 - Whether any destruction/demolition occurred in the mound that separates Lum Sohproo It Phreit and Lum Khasing? Issue No. 5 - Whether the house of Ka solinda Mynsong is situated at Lum Sohproo It Phreit? Issue No. 6 - Whether there are any pine trees within the disputed land (Lum Sohproo It Phreit)? Issue No. 7 - Whether Niat Mynsong had bought the disputed land. What is her relation with the plaintiff, who is the mother of the plaintiff? Issue No. 8 - Who is in possession of the disputed land? Issue No. 9 - Whether the plaintiff had given the trees on rent to U Haria Kharsati? Issue No. 10 - Whether the plaintiff's Sale Deed was executed by unfair means? Issue No. 11 - (Not found mentioned in the impugned judgment). No issue regarding the right and title of the defendant over the suit land was framed. Five witnesses were examined on the side of the plaintiff and four witnesses were examined on the side of the defendant. The plaintiff and the defendant filed their respective written arguments in February and May, 1999 respectively. The Trial Court ordered on 29.11.2003 for local inspection of the suit land. No report in respect of the said inquiry was furnished to the parties and no hearing was made in respect of the findings in the said local inspection. By taking into consideration of the findings made in the said local inspection as well as other materials, the Trial Court passed the judgment dated 25.02.2005 dismissing the suit and directing the plaintiff to dismantle the house situated within the suit land. The Trial Court further held that the defendant could take possession of the suit land as the same was rightly her. In the said judgment dated 25.02.2005, the Trial Court decided the Issue Nos. 1, 2, 3, 4, 5, 6 and 8 clearly in favour of the plaintiff. The plaintiff preferred an appeal being Title Civil Appeal No. 2 of 2005 before the Judge, District Council Court and the appeal was dismissing vide judgment dated 26.08.2005 upholding the judgment of the Trial Court. Then the plaintiff preferred a review petition, being Review Petition No. 2 of 2005 before the Judge, District Council Court praying for reviewing the said judgment dated 26.08.2005 passed in the appeal. Then the plaintiff preferred a review petition, being Review Petition No. 2 of 2005 before the Judge, District Council Court praying for reviewing the said judgment dated 26.08.2005 passed in the appeal. The learned Judge, District Council Court rejected the review petition vide order dated 03.04.2006. The defendant instituted an execution case being Execution Case No. 2 of 2006 in the Court of the Addl. Subordinate District Council Court, Khyrim Syiemship and the same is pending. 3. There is no dispute that as per Rule 45 of the United Khasi Jaintia Hills Autonomous District (Administration of Justice) Rules, 1953, in all civil cases, the District Council Court, the Subordinate District Council Courts and the Addl. Subordinate District Council Courts shall adjudicate according to law, justice, equity and good conscience consistent with the circumstances of the case. Further, as per Rule 47 of the above said Rules of 1953, in civil cases, the procedure of the District Council Court or the Subordinate District Council Courts or the Addl. Subordinate District Council Courts shall be guided by the spirit but not bound by the letter of the Code of Civil Procedure, 1908, in all matter not covered by recognized customary law or usage of the District. 4. It is already ascertained that while dismissing the suit of the plaintiff, the Trial Court granted reliefs in favour of the defendant. There was no any prayer from the side of the defendant for granting the said reliefs. No issue was framed in respect of the question if the defendant was entitled to the said reliefs or not. In the facts and circumstances, there is no appreciable reason as to why the said reliefs were given to the defendant. Since no specific issue was framed regarding the entitlement or otherwise of the defendant in respect of the said reliefs, no opportunity was given to the plaintiff to produce any evidence in respect of the matter and as such the order of the Trial Court giving the said reliefs to the defendant was passed in violation of the principles of natural justice. Since the above said portion of the judgment of the Trial Court dated 25.02.2005 holding that the defendant could take possession of the suit land as the same belonged to her and directing the plaintiff to dismantle the house standing on the suit land was passed in violation of the principles of natural justice, the said portion of the judgment cannot be said to have been passed according to law, justice, equity and good conscience consistent with circumstances of the case. In view of the finding that the plaintiff failed to prove her case, the logical result was to dismiss her suit. In the facts and circumstances, while dismissing the suit of the plaintiff, there was no legal scope for granting any relief to the defendant, who was not also praying for any such relief. In my considered opinion, the Trial Court acted unreasonably, unfairly and unjustly by granting the said reliefs to the defendant, without even considering anything about his entitlement or otherwise of the said reliefs, in the said suit filed by the plaintiff. 5. It is also to be noted that by relying on the inspection report in passing the said judgment without giving any opportunity to the plaintiff to submit his objection in respect of the report, the Trial Court violated the principles of natural justice. Before relying on the said inspection report, the Trial Court ought to have given opportunity of making objection, if any, in respect of it to the plaintiff. 6. By passing the said portion of the judgment dated 25.02.2005 in violation of the principles of natural justice and by ignoring the findings in favour of the plaintiff in respect of many issues, it cannot be said that the Trial Court only adjudicated the suit according to law, justice, equity and good conscience consistent with circumstances of the case. The learned Counsel for the respondent submits to the effect that there is customary law and usages of the District authorizing the Trial Court to grant the said reliefs in favour of the defendant on failure of the plaintiff to establish her case. However, the learned Counsel for the respondent has not produced any authority in support of his said submissions. No decision or precedent recognizing the said type of custom and usages in the District is brought to the notice of this Court. However, the learned Counsel for the respondent has not produced any authority in support of his said submissions. No decision or precedent recognizing the said type of custom and usages in the District is brought to the notice of this Court. In my opinion, the Trial Court ought to have proceeded following the spirit of the provisions of the Civil Procedure Code, 1908. Accordingly, the Trial Court should not have granted the said reliefs in favour of the defendant in the absence of any counter claim from his side in respect of the said reliefs. 7. In the result, the said portion of the judgment dated 25.02.2005 passed by the Trial Court holding that the defendant could take possession of the suit land as the same belonged to him and directing the plaintiff to dismantle the house inside the suit land is not sustainable in the eye of law. Further, the portion of the judgment dated 26.08.2005 passed by the learned Judge, District Council Court, Shillong in Title Civil Appeal No. 2 of 2005 upholding the above said portion of the judgment of the Trial Court dated 25.02.2005 is not also sustainable in the eye of law. Accordingly, the said portion of the judgment of the Trial Court dated 25.02.2005 and the said portion of the appellate judgment dated 26.08.2005 upholding the said portion of the Trial Court's judgment are hereby set aside. This review application stands disposed. No order as to costs.