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2009 DIGILAW 676 (GAU)

M. Thangi v. Union of India

2009-09-17

H.BARUAH

body2009
JUDGMENT H. Baruah, J. 1. This second appeal under Section 100 of the Civil Procedure Code (for short the 'Code') is preferred against the judgment and order dated 31.3.2008 passed by District Judge, Aizawl District, Aizawl in RFA No. 10 of 2007. For the purpose of decision of this appeal the following substantial questions of law have been formulated by this Court after hearing the parties at length: 1. Whether the Civil Suit No. 20 of 2005 was adjudicated by a Court having no territorial jurisdiction. 2. Whether the suit was barred by limitation. 3. Whether the Executive Order dated 15.4.1997 canceling the land Donation Certificate could be held to be null and void by the First Appellant Court even though it was not challenged by the respondents. 4. Whether the Lai Autonomous District Council is a necessary party to the suit. 5. Whether the First Appellate Court was right in remanding back the suit to the trial Court in spite of its finding that the trial Court has to territorial jurisdiction. 2. To answer these above substantial questions of law it would perhaps be appropriate for this Court to make a survey of the facts briefly, which may be placed as under: The appellant herein is the owner and possessor of a plot of land measuring 20,000 sq. metre covered by LSC No. PC/LS-89 dated 19.9.1989 situated in the District of Chhimtuipui, Saiha within Lai Autonomous District Council, Lawngtlai. The aforesaid LSC was issued in supersession of the earlier LSC No. PC/LS-10/82 of 20.3.1982. The appellant had been in possession of the aforesaid land since 1975. In the year 1982 the defendant No. 3, respondent No. 3 herein without knowledge and permission damaging number of crops and food bearing trees occupied the aforesaid land without paying any compensation whatsoever. The appellant, therefore, filed the writ petition being No. WP(C) No. 63 of 1999 against the respondents herein for a direction to pay compensation and rental charges to the appellant as assessed by Deputy Commissioner, Chhimtuipui District, Saiha basing on the assessment report submitted by Sr. Revenue Officer, Pawi Autonomous District Council, Langtlai now popular known as Lai Autonomous District Council, Lawngtlai under his letter dated 27.9.1996 to the Deputy Commissioner, Chhimtuipui and further direction to the respondents for assessment and payment of rental charges for the period of occupation not covered by assessment report. Revenue Officer, Pawi Autonomous District Council, Langtlai now popular known as Lai Autonomous District Council, Lawngtlai under his letter dated 27.9.1996 to the Deputy Commissioner, Chhimtuipui and further direction to the respondents for assessment and payment of rental charges for the period of occupation not covered by assessment report. The respondents resisted the writ petition by filing counter affidavit stating that 71 Road Construction Company (for short "71 RCC, C/o. 99 APO") is the unit of Border Road Task Force (BRTF) under the Ministry of Road Transport and Highways, Union of India and they are assigned with the function of construction, development and maintenance of road network in Mizoram under project "Pushpak". Respondent No. 3 was granted permission by the village council in 1981 for camping of manpower and machinery engaged in road construction activities of Lawngtlai-Diltang-Parva Road (for short "LDP Road"). It is also claimed in their counter that then Pawi Autonomous District Council renamed as Lai Autonomous District Council granted a land donation certificate vide memo No. 11017/3/85-PDC(E) dated 17.7.1985 for an area of 16,291 sq. metre of land at Km 45, LDP road and four others point at Pawi District Council area. However, the said land donation certificate was cancelled without giving any notice to the respondents and declared null and void by an order dated 15.4.1997 of the Executive Member, in-charge, Lai Autonomous District Council, Lawngtlai on the ground that said land donation certificate could not be issued in respect of the land which has already been settled with the appellant and thereby confirming the LSC issued in her favour. 3. It is to be borne in mind that for illegal occupation of the land belonging to appellant and on account of non payment of compensation, the appellant filed a civil rule being No. 59 of 1995 before this Court and his Court after hearing the parties to the proceeding dispose of the same by an order dated 30.8.1995 with the following observation: If as averted in this petition, private land of the petitioner has been occupied by BRTF or for that matter by any department of the Government, the petitioner has every right to claim compensation. The department concerned should either requisition for a specific purpose on acquires by following certain procedures laid down in this regard. However, at this stage this Court cannot issue any direction to any particular party. The department concerned should either requisition for a specific purpose on acquires by following certain procedures laid down in this regard. However, at this stage this Court cannot issue any direction to any particular party. The petitioner should approach the learned Deputy Commissioner, Saiha immediately so that the Deputy Commissioner may verify the complaint of the petitioner and make necessary assessment and thereupon BRTF can be called upon to make compensation/rent etc. to the petitioner. Pursuant to the above observation the petitioner approached the Deputy Commissioner, Saiha who to intern required competent authority, Sr. Revenue Officer, Lai Autonomous District Council, to verify the complaint and make assessment vide letter dated 23.8.1996 and accordingly, appellant's land was verified and verification report dated 27.9.1996 was forwarded to the Deputy Commissioner, Saiha assessing compensation at Rs. 26,42,350/-. This Court while disposing the writ petition being WP(C) No. 63 of 1999 in paragraphs 11 and 12 of the judgment made the following direction: 11. In the result, in respect of the land in question the respondent are directed to pay to the petitioner the compensation of (Rs. 26,42,350/- Rs. 16,80,000/- Rs. 9,62,350/-) Rs. 9,62,350/- (Rupees nine lakhs sixty two thousand three hundred and fifty) only as assessed vide Annexure-III to the writ petition with interest thereon @ 6% p.a. from 27.9.1996, i.e., the date of assessment within a period of six months from the date of receipt of this judgment and order. 12. So far ground rent is concerned, the respondents are directed to approach the competent authority with a notice to the petitioner for fixation or rent in accordance with law within a period of three months from the date of receipt of this judgment and order, and after such fixation shall make payment of rent to the petitioner in respect of the land in question from the date of occupation till they continue in such occupation, and the arrear rent shall be paid within a period of three months from the date of fixation of the rent as aforesaid. Against the said judgment and order dated 28.7.2000 passed in WP(C) No. 63 of 1999 the respondents herein being aggrieved by and dissatisfied with filed a writ appeal being W.A. No. 4 of 2002 before this Court. Against the said judgment and order dated 28.7.2000 passed in WP(C) No. 63 of 1999 the respondents herein being aggrieved by and dissatisfied with filed a writ appeal being W.A. No. 4 of 2002 before this Court. The aforesaid writ appeal was contested and this Court vide judgment and order dated 9.3.2005 set aside the impugned judgment and order dated 28.7.2000 and directed the appellant to approach the competent civil Court to claim compensation/damages for the crops and fruit bearing trees on the disputed land taken by the respondents herein for their illegal occupation and also for payment of rental charges for the period of occupation of the disputed land by the respondents on the ground that there is serious disputed question of fact which can alone be decided on the basis of oral and documentary evidence before a competent civil Court. 4. As directed the appellant filed a civil suit being No. 20 of 2005 arraying all the respondents No. 1 to 3 as defendants while respondent No. 4 as proforma defendant. The suit was contested by the defendant-respondents and the trial Court by a judgment and order dated 30.4.2007 decreed the suit declaring the appellant herein as a original and legal owner of the land covered by LSC No. PC/LS-54/189 dated 19.9.1989 along with a decree for payment of compensation amounting to Rs. 9,22,350/-with rental charges of the land under the occupation of the respondents until vacation therefrom. A further direction was issued to the District Collector to make an assessment of rental compensation of the land under the occupation of the respondent belonging to the appellant within the period of 3 (three) months. 5. Being aggrieved and dissatisfied with the judgment and decree as aforesaid the respondents herein filed an appeal bearing RFA No. 10 of 2007 and the appellate Court by a judgment and order dated 31.3.2008 set aside the judgment and decree of the trial Court and remanded the suit to the learned trial Court with a direction to implead Lai Autonomous District Council (for short "LADC") as one of the parties to the suit with a liberty to frame issue(s) depending upon the pleadings of the LADC and also on the point of limitation and adduce additional evidence, if necessary. Hence this second appeal. 6. We have heard Mr. C. Lalramzauva, learned Counsel assisted by Mr. A.R. Malhotra and Mr. Hence this second appeal. 6. We have heard Mr. C. Lalramzauva, learned Counsel assisted by Mr. A.R. Malhotra and Mr. Haulianthanga, learned Counsel for the appellant and Mr. S.N. Meitei, learned CGC for respondent Nos. 1 to 3 along with Mr. Aldrin Lallawmzuala, learned Additional Advocate General for the respondent No. 4. 7. The land belonging to the appellant is admittedly situated at Chhimtuipui district under LADC. There is no dispute that the land belonging to the appellant covered by LSC No. PC/LS-54/89 dated 19.9.1989 is not in occupation of the respondents. Per direction of this Court vide order dated 9.3.2005 in writ appeal No. 4 of 2002, the appellant herein filed a civil suit being C.S. No. 20 of 2005 before the Court of Assistant to the Deputy Commissioner, Aizawl District, Aizawl. During the course of argument in the context of substantial question No. 1 formulated by this Court it was argued by Mr. C. Lalramzauva that no illegality had been committed by the appellant in instituting the civil suit before the Court of Assistant to the Deputy Commissioner at Aizawl inasmuch as the respondent Nos. 1 to 3 are also residing at Aizwal although the land in question is situated at Chhimtuipui District, Lawngtlai and cause of action arose there at. In support of his contention Mr. C. Lalramzauva, learned Counsel for the appellant relied in the provision of Section 16 of the Code and submitted that the judgment and decree cannot be challenged for want of territorial jurisdiction when respondent-defendants Nos. 2 and 3 voluntarily reside, carry on business, or personally work for gain in the district of Aizawl. Therefore, the suit instituted by the appellant for recovery of her land described in LSC No. PC/LS-54/89 dated 19.9.1989, now, in the occupation of the respondents and for compensation on account of illegal damage to the crops and fruit bearing trees and rental compensation for wrongful occupation is maintainable and, such relief can also be obtained from the respondents through his/their personal obedience instituting the same either in the local limits of which jurisdiction the property is situated or in the Court local limits of whose jurisdiction the defendant actually and voluntarily works for gain. This submission is strenuously objected by the learned Counsel for the respondent contending inter alia that when the respondents are also residing in Chhimtuipui district and when the land situated at Chhimtuipui district and cause of action arose thereat, institution of suit in Aizawl is wrong assumption of territorial jurisdiction on account of personal obedience of the respondents. It was argued by Mr. Meitei, learned Counsel for the respondents that the learned First Appellate Court rightly held that the Court at Aizawl on the facts situation did not have any territorial jurisdiction to entertain a suit for declaration of right, title and interest in the land and recovery thereof and also for compensation in Aizawl, taking resort to the proviso to Section 16 of the Code, which deals with the subject of institution of a suit where the subject matter situated. Section 16 of the Code speaks as under: 16. Suit to be instituted where subject-matter situate. Subject to the pecuniary or other limitations prescribed by any law, suits: (a) for the recovery of immovable property with or without rent or profits, (b) for the partition of immovable property, (c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property, (d) for the determination of any other right to or interest in immovable property, (e) for compensation for wrong to immovable property, (f) for the recovery of movable property actually under distraint attachment, Shall be instituted in the Court within the local limits of whose jurisdiction the property is situate: Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property, held by on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the Court within the local limits of whose jurisdiction the property is situate, or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain. Normally a suit shall be instated in the Court in whose jurisdiction the property situates. The class of suits which can be instated in the Court within local limits of its jurisdiction has been indicated in (a) to (f) of Section 16 of the Code. Normally a suit shall be instated in the Court in whose jurisdiction the property situates. The class of suits which can be instated in the Court within local limits of its jurisdiction has been indicated in (a) to (f) of Section 16 of the Code. Proviso to Section 16 of the Code authorizes the plaintiff to institute a suit for compensation for wrong to immovable property if the property is held by some one on behalf of the defendant and when all reliefs sought can be entirely obtained through his personal obedience either in the Court within the local limits of whose jurisdiction the property is situated or in the Court within local limits of whose jurisdiction the defendant actually and voluntarily resides or carries business or personally works for gain. The words "on behalf of the defendant" employed to the proviso to Section 16 give an indication that the immovable property to which wrong is committed and compensation claimed, it would only come in aid when the immovable property is held by someone on behalf of the defendants. There is no averments appearing in the face of the record that the respondent No. 3 is not actually and voluntarily residing, carrying on business, or personally, working for gain. Had it been a fact that the land belonging to the appellant is in the occupation of others on behalf of the respondents then and then a suit can be instituted where the defendants/respondents reside, personally work for gain or carried on business. There is nothing in the record to show that the land in question is held by others on behalf of the respondents. Further, the appellant by instituting the civil suit No. 20 of 2005 sought for various relief(s) including recovery of possession of the land under occupation of the respondents including compensation for damage of the crops and fruit bearing trees standing thereat and also for compensation for illegal occupation of the land. Therefore, the suit as aforesaid cannot be called as a suit for decree for a solitary relief. It is a suit for cluster of relief(s). Therefore, by filing a suit in Aizawl Court no such relief(s) can be granted. The words "through his personal obedience" cannot however, be introduced since the land is not held by others on behalf of the respondents. Respondent No. 3 holds the land by itself by residing at Chhimtuipui district. It is a suit for cluster of relief(s). Therefore, by filing a suit in Aizawl Court no such relief(s) can be granted. The words "through his personal obedience" cannot however, be introduced since the land is not held by others on behalf of the respondents. Respondent No. 3 holds the land by itself by residing at Chhimtuipui district. From the facts it would appear that the cause of action for the suit also arose within local limits of the Courts (civil) at Chhimtuipui district. 8. Section 20 of the Code also deals with the subject of institution of suit. It says that subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction: (a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or (b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave or the Court is given, personally work for gain, as aforesaid, acquiesce in such institution; or (c) the cause of action, wholly or in part, arises. In our present case we have come across that land is situated in the Chhimtuipui district. It is in the occupation of the respondents since 1982. While occupying as such, the respondents caused damage to the crops and the fruit bearing trees standing there at without paying any compensation whatsoever and for wrongful occupation of the land since 1982. The appellant being the owner of the said land per direction of this Court instituted a suit for rental compensation, compensation for damage to the crops and fruit bearing trees thereon and for possession of the land. Therefore, it would be seen from the above facts that cause of action also has a arisen within the Chhimtuipui district. If a suit is to be filed seeking relief of compensation for wrongful occupation of the land, compensation for damage of the crops and fruit bearing trees thereon and recovery of possession, the same is to be instituted in the Court in whose local jurisdiction the property is situated and the cause of action arises. If a suit is to be filed seeking relief of compensation for wrongful occupation of the land, compensation for damage of the crops and fruit bearing trees thereon and recovery of possession, the same is to be instituted in the Court in whose local jurisdiction the property is situated and the cause of action arises. The Court of Assistant to the Deputy Commissioner at Aizwal by entertaining the suit of the appellant filed, seeking the relief(s) as indicated above exceeds its territorial jurisdiction laying support to proviso to Section 16 of the Code. It ought not to have entertained the suit filed by the appellant in view of the relief(s) claimed. 9. Issue No. 7 relates to jurisdiction to adjudicate the suit. It was decided in favour of the appellant herein on the ground that respondent Nos. 1 to 3 herein have not suffered any prejudice and no failure of justice occasioned. The First Appellate Court, however, refused to accept the reasons offered by the trial Court in respect to jurisdiction. And after discussing various case laws held that the Court of Assistant to the Deputy Commissioner, District Aizawl has no jurisdiction to try the suit of the appellant. The place of suing should be in Lawngtlai District. 10. Since all the relief(s) claimed in the suit (Civil Suit No. 20 of 2005) filed by he appellant cannot be granted by the Court in Aizawl and in view of the substantive law laid down, in Section 16 of the Code in particular, this Court is unable to accept the submission of Mr. C. Lalramzauva, learned Counsel for the appellant that Aizawl Court too has the jurisdiction to try such suit. The proviso to Section 16 is based on the maxim "equity acts in personam". Under the proviso even though immovable property is not situate within the jurisdiction of a Court, a suit in respect of compensation to immovable property may at the option of the plaintiff be instituted in that Court if the person of the defendant or his personal property is within its jurisdiction and the relief asked for can be entirely obtained through defendant's personal obedience. In this present case we have found that the defendants do not have any property within jurisdiction of the Aizawl Court and moreover relief(s) claimed in the suit cannot, however, be obtained from the defendant's personal obedience. In this present case we have found that the defendants do not have any property within jurisdiction of the Aizawl Court and moreover relief(s) claimed in the suit cannot, however, be obtained from the defendant's personal obedience. Therefore, the suit filed by the appellant in the Court of Assistant to the Deputy Commissioner cannot, however, be adjudicated upon by resorting to proviso to Section 16 of the Code. The trial Court had no jurisdiction at all. Substantial questions of law as formulated by this Court in regard to adjudication by a Court having no territorial jurisdiction is answered in affirmative. 11. The learned First Appellate Court held that the trial Court did not have the jurisdiction to try such a suit yet, the first appellate Court committed error in remanding the suit to the trial Court again for adjudication. A Court having no jurisdiction cannot adjudicate a suit, therefore, remand of the suit to the some Court by the First Appellate Court is erroneous and unjustified. In that view of the matter it would have been appropriate for the first appellate Court to issue a direction to the trial Court to return the plaint to the appellant herein under the provision of Rule 10 of Order VII of the Code for filing the same before the proper Court. 12. In regard to substantial question Nos. 2, 3 and 4, this Court refrains from giving a decision in view of direction of this Court to return of the plaint to the plaintiff-appellant to file it in the proper forum. Before the trial Court all these three substantial questions may crop up as issues in the suit since the suit is filed by the appellant for declaration of right, title and interest over the land covered by LSC No. PC/LS-54/89 dated 19.9.1989 and for payment of compensation as assessed by the Senior Revenue Officer, LADC, Lawngtlai vide his letter dated 27.9.1996/along with other consequential relief(s). 13. Having taken into consideration of all the matters in its entirety and the law laid down, the judgment and decree passed by both the Courts below are hereby set aside and quashed. The trial Court is directed to return the plaint of the Civil Suit No. 20 of 2005 to the plaintiff-appellant per provision of Rule 10-10-A of Order VII of the Code. 14. With the above direction, this second appeal is disposed of. The trial Court is directed to return the plaint of the Civil Suit No. 20 of 2005 to the plaintiff-appellant per provision of Rule 10-10-A of Order VII of the Code. 14. With the above direction, this second appeal is disposed of. Parties to bear their own cost.