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2011 DIGILAW 398 (GAU)

Singhmuaka v. State of Mizoram

2011-05-04

H.BARUAH

body2011
JUDGMENT H. Baruah, J. 1. Heard Mr. M. Zothankhuma, learned Sr. Counsel assisted by Mr. Lalfakawma, learned Counsel for the Appellant as well as Mr. C. Lalramzauva, learned Sr. Counsel for the Respondent No. 7 and Mrs. Helen Dawngliani, learned Counsel for the Respondent Nos. 1 to 4. None appears for and on behalf of Respondent Nos. 5 and 6. 2. The judgment and order dated 15-11-2010 passed by Senior Civil Judge, Aizawl District, Aizawl in Title Suit No. 14 of 2007 is under challenge in this appeal. 3. The Appellant herein was not a party to the Title Suit No. 14 of 2007 instituted by Respondent No. 7 as Plaintiff against the Respondent Nos. 1 to 6. The Appellant claiming himself to be the owner of the disputed land concerning the Title Suit No. 14 of 2007 by virtue of purchase from Defendant No. 5, the Respondent No. 5 herein after obtaining the leave of this Court preferred this appeal challenging the judgment as indicated above contending in the memo of appeal that by judgment and order impugned herein he is severely effected. 4. The Respondent No. 5 herein as Plaintiff filed the Title Suit No. 14 of 2007 for declaration of right title and interest in respect of the land covered under LSC No. 740 of 1985 and also for declaration of the settlement order issued vide memo No. R. 21011/37/92-DC(A)/272 dated 10-5-2007 as illegal and void and for permanent injunction restraining the Defendants from doing anything detrimental to the interest of the Plaintiff Respondent No. 7 in respect of the suit land. 5. The facts are as follows:- The Respondent No. 7 applied to the revenue department for issuing a House Pass over a plot of land lying vacant at Chandmari West. On his application the revenue authorities conducted verification and the land having found lying vacant, issued a House Pass No. 240 of 1985 for an area measuring 540 sq. mt. The aforesaid house pass subsequently was converted to land settlement certificate No. 740 of 1985 on the application of the Plaintiff-Respondent No. 7 after verification. The area of land as covered by House Pass No. 240 of 1985 was reduced to 336.78 sq. mt. while granting the LSC No. 740 of 1985. mt. The aforesaid house pass subsequently was converted to land settlement certificate No. 740 of 1985 on the application of the Plaintiff-Respondent No. 7 after verification. The area of land as covered by House Pass No. 240 of 1985 was reduced to 336.78 sq. mt. while granting the LSC No. 740 of 1985. The land covered by settlement certificate No. 740 of 1985 was demarcated in presence of the Respondent No. 5 who did never raise any objection of such demarcation. No boundary dispute arose until the land of the Respondent No. 5 has been purchased by Respondent No. 6. In the beginning of 2006 a kacha structure was put on within the land of the Respondent No. 5 for running a motor workshop. The Respondent No. 6 and his brother, the Appellant herein claimed that Respondent No. 6 purchased the land belonging to Respondent No. 5 and wanted to erect fencing at the boundary. While erecting the fencing by Respondent No. 6 he included a portion of the land of the Respondent No. 7 for such encroachment the Respondent No. 7 submitted a complaint with the Revenue Department. Surveyor of the Land Revenue and Settlement Department made a verification of the boundary in presence of the Appellant and the fencing which was erected having found not in order, to avoid dispute between the Respondent No. 7 and Respondent No. 6 it was agreed that the fencing would be removed and removed accordingly. The Respondent No. 6 thereafter submitted a complaint with the revenue department with an intention to grab the land of the Respondent No. 7. The complaint was verified and the surveyor deputed for the purpose took measurement of the land from a point leaving the boundary pillar No. 1 in order to accommodate the Defendant No. 6. The Surveyor accordingly submitted the report with his superior authority. It is claimed by the Respondent No. 7 that the report submitted by the Surveyor cannot be accepted since survey was not conducted from the boundary pillar No. 1. Though the officials of the Revenue Department called the Respondent No. 7 and Respondent No. 6 to their office to make a settlement of the boundary dispute between them and accept the report submitted by the Surveyor, Respondent No. 7 did not agree. 6. Though the officials of the Revenue Department called the Respondent No. 7 and Respondent No. 6 to their office to make a settlement of the boundary dispute between them and accept the report submitted by the Surveyor, Respondent No. 7 did not agree. 6. Being disturbed by the encroachment as well as the Surveyor's report the Respondent No. 7 as Plaintiff instituted the suit as indicated above praying for decree as indicated in the plaint. 7. Summons were issued to all the Defendants to appear and contest the suit filed by the Respondent No. 7. Respondent Nos. 1 to 4 arrayed as Defendant Nos. 1 to 4 appeared and filed written statement supporting the Surveyor's report. However, neither of the Defendants No. 5 and 6 despite service of summons appeared before the trial Judge and contest the suit. Trial Judge on the basis of the pleadings framed the following issues: (i) Whether the suit is maintainable in its present form and style? (ii) Whether the settlement order dated 10-5-2007 between the Plaintiff and Defendant No. 6 is valid or not? (iii) Whether the Plaintiff is entitled to the relief claimed, if so to what extent? Respondent No. 7 adduced evidence both order and documentary. No evidence could be recorded in favour of the Defendant Respondents, namely, Respondent Nos. 1 to 4, who contested the suit by filing written statement. The trial Court thereafter passed the impugned judgment and order and the operative part of the judgment can be reproduced as under:- That the suit is decreed on contest in favour of the Plaintiff against the Defendant Nos. 1 to 4 and ex parte against the Defendant Nos. 5/6. The Settlement order Exhibit P-9 is thereby declared as illegal in the result the same is set aside. The Plaintiff's title over the LSC No. 740 of 1985 is confirmed over the entire land as shown in the sketch map attached to the said LSC exhibited as Exhibit P-2. By way of permanent injunction the Defendants including he Defendant No. 5 and 6 are restrained from interfering with the peaceful possession of the said land covered under LSC No. 740 of1985. However, I pass no order as to cost. 8. It is submitted by Mr. C. Lalramzauva, learned Sr. By way of permanent injunction the Defendants including he Defendant No. 5 and 6 are restrained from interfering with the peaceful possession of the said land covered under LSC No. 740 of1985. However, I pass no order as to cost. 8. It is submitted by Mr. C. Lalramzauva, learned Sr. Counsel for the Respondent No. 7 that at no point of time the Appellant did raise any claim either before the Respondent No. 7 or before the officials of the revenue department that he is the true owner of the land by virtue of purchase from Respondent No. 5. All along the disputed land was claimed to be in the ownership and possession of the Respondent No. 6. It is also submitted that no attempt was made by the Appellant to implead himself as party Defendant in the suit on the basis of his alleged purchase of this land from the Respondent No. 5. The Appellant is, therefore, seemed to have sat tight over the matter for several years without claiming any ownership over the disputed land. On this fact, Mr. C. Lalramzauva, learned Sr. Counsel submits that a reasonable presumption can be drawn as against the sale deed produced, annexed and relied by the Appellant in the appeal memo. It is submitted by Mr. C. Lalramzauva, learned Sr. Counsel that had the Appellant been in possession and power of the sale deed executed by Respondent No. 5 in his favour, he would have certainly asserted his claim when the boundary dispute arose in between the Respondent No. 7 and 6. Since nothing has been placed/pleaded before the trial judge by the Appellant herein when the suit was sub judiced, the claim of the Appellant herein that he is the true owner of the land cannot subsist. The claim so made on the basis of the sale deed (kacha/not registered) cannot subsist in favour of the Appellant on account of his in-action during the pendency of the suit before the trial judge. The trial judge having had no material before him to consider the alleged claim, no error or illegality has been committed by the trial judge in decreeing the suit. 9. It is further argued by Mr. The trial judge having had no material before him to consider the alleged claim, no error or illegality has been committed by the trial judge in decreeing the suit. 9. It is further argued by Mr. C. Lalramzauva, that at the time of measurement of the land in dispute and preparation of the report by the Revenue Officials, Appellant was also along present, but he never raised any claim that land belong to him actually and not to the Respondent No. 6. The Appellant having had the opportunity to raise such a claim during the long period, suddenly after passing of the decree the Appellant filed this appeal claiming that he is considerably aggrieved by the judgment and decree he being the true owner. It is also argued that the judgment and decree passed by the trial Court cannot be assailed in view of the fact that such claim is out of the scope of consideration of the trial judge. Mr. C. Lalramzauva, learned Sr. Counsel, therefore, on this fact submits that the judgment and decree is not liable to be set aside and quashed. 10. Contrary to the submission advanced by Mr. C. Lalramzauva, learned Sr. Counsel, Mr. M. Zothankhuma, learned Sr. Counsel for the Appellant submits that the Appellant had no knowledge of pendency of the suit as indicated above before the trial Judge in between the Respondent No. 7 and 1 to 6. It is submitted by Mr. Michael that had the Appellant the knowledge about the pendency of the suit in respect of the land in dispute would have certainly filled an application for his impleadment as party Defendant and contest the suit. He having had no such the Appellant cannot be debarred to challenge the judgment and decree passed by the trial Court, he being vastly affected thereby. It is also submitted that the Appellant is the actual owner of the land covering LSC No. AZI 1872 of 1985, which he purchased for a consideration of Rs. 1,60,000/- from the original owner, the Respondent No. 5 and therefore, the Appellant has every right to assert his right and title over the suit land. It is submitted by Mr. Michael that the Appellant being the owner of the land pertaining to the suit, the judgment and decree is passed behind his back. 1,60,000/- from the original owner, the Respondent No. 5 and therefore, the Appellant has every right to assert his right and title over the suit land. It is submitted by Mr. Michael that the Appellant being the owner of the land pertaining to the suit, the judgment and decree is passed behind his back. Therefore, the judgment and decree rendered by the trial Court and impugned in this appeal cannot stand in the eye of law. 11. The Respondent No. 7 in particular, the Plaintiff of the Title Suit No. 14 of 2007 has not placed any evidence before this Court to show that the Appellant is not the purchaser of the suit land covered under LSC No. 1872 of 1985. This being the position in the face of the record this Court is unable to hold that the Appellant is not the owner of the land covered under LSC No. 1872 of 1985, which is contiguous to the land covered under LSC No. 740 of 1985. Dispute arose in respect of 2.60 meter of land in the frontage of the LSCs. Revenue Officials while making the verification of the boundary dispute between the Respondent No. 7 and Respondent No. 6 on agreement shortened the frontage by 1.30 meter. The Respondent Nos. 1 to 4 also did not make any whisper in their written about the owner of the land covered under LSC No. 1872 of 1985. On this fact it cannot also be said that the Appellant is not the owner of the land covered under LSC No. 1872 of 1985. 12. By judgment and decree the Appellant is seemed to have deprived of his land purchased from Respondent No. 5 covered by LSC No. 1872 of 1985. None can be deprived of his right to property without affording a reasonable opportunity of being heard. Therefore, an appropriate decision in the face of the facts is warranted of the ownership of the land in dispute and for the purpose of settlement of the dispute impleadment of the Appellant is a necessity, he being the necessary party to the suit. This Court is of opinion that if Appellant is not afforded with an opportunity to project his grievance justice would suffer and would also be violation of Article300A of the Constitution. 13. This Court is of opinion that if Appellant is not afforded with an opportunity to project his grievance justice would suffer and would also be violation of Article300A of the Constitution. 13. Taking note of the facts in its entirety and the submissions advanced by the Counsel of either party, this Court considers it appropriate and justiciable to set aside and quash the impugned judgment and decree dated 15-11-2010 passed by the trial Court in Title Suit No. 14 of 2007. 14. In the result, the appeal stands allowed. The impugned judgment and order dated 15-11-2010 passed by the trial Court in Title Suit No. 14 of 2007 is set aside and quashed. The matter is remanded back to the trial Court to have a de novo trial after impleading of the Appellant therein as party Defendant allowing him to file written statement. For the purpose, the Appellant is directed to prefer an application for impleadment as Defendant before the trial Court. Parties to the appeal are directed to make their presence available within 1(one) month from this day. The trial judge after receipt of the records shall also issue summons to the rest of the Defendants afresh facilitating them to contest the suit. It is made clear that the Appellant after his appearance before the trial Court shall make an application for impleadment immediately. 15. With the above direction, this appeal stands disposed of. No cost.