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2011 DIGILAW 417 (GAU)

Rualkhumi v. Lalvuani & Ors.

2011-05-12

A.K.GOSWAMI

body2011
A.K. Goswami, J.- This second appeal has been preferred against the judgment and decree dated 24.9.2010 passed by the learned Additional District Judge, Aizawl in RFANo. 8/07 al­lowing the appeal presented by the plaintiff/appellant and reversing the judgment and de­cree dated 19.4.07 passed by the then As­sistant Deputy Commissioner, Aizawl in Title Suit No. 7 of 1998 dismissing the suit. 2. The appeal was admitted to be heard on the following substantial question of law: Whether the Judgment and Order ren­dered by First Appellate Court on 24.9.2010 passed in RFANo. 8 of 2007 is perverse? 3. I have heard Mr. A.R. Malhotra, learned counsel appearing for the appellant/defendant No. 6. Ihave also heard Mrs. Dinari T. Azyu, learned Govt. Advocate appearing for the respondent Nos. 2 to 5 in the present appeal. Despite due service of notice on the respondent No. 1/plaintiff, there is no repre­sentation on her behalf. 4. The plaintiff filed the Title Suit No. 7 of 1998 in the Court of the Assistant Deputy Commissioner, Aizawl stating that she had constructed a shed in the suit land in the year 1987, which later on she came to learn, was covered under Land Settlement Certificate (LSC) No. Azl.555 of 1985 belonging to one R.C. Liandawla who resides in ITI Veng, Aizawl. According to the case projected in the plaint, the said Liandawla had given her permission to construct the shed and to pos­sess the same. She claimed to have purchased the said land from R.C. Liandawla for a sum of Rs. 50,000/- out of which Rs. 30,000/-was yet to be paid. She was served with a notice dated 10.7.98 by the Deputy Com­missioner, Aizawl whereby the house was di­rected to be dismantled through the Assistant Settlement Officer-(II), Land Revenue and Settlement, on the ground that the plaintiff was occupying an area of land falling under LSC No.Azl.1383 of 1994 belonging to the present appellant, who was arrayed as de­fendant No. 6 in the suit, by way of unauth-orisedly constructing the house in violation of the law in force. It was also stated that the defendant No. 6 had no locus-standi to stake any claim on the strength of LSC No. Azl. 13 83 of 1994, which admittedly was in duplication of LSC No. Azl. 555 of 1985. It was also stated that the defendant No. 6 had no locus-standi to stake any claim on the strength of LSC No. Azl. 13 83 of 1994, which admittedly was in duplication of LSC No. Azl. 555 of 1985. With the aforesaid pleadings the plaintiff prayed for the following reliefs: "(i) for a decree declaring that the plaintiff has not violated any law in force in construct­ing a house in the land comprised in LSC No.Azl.555 of 1985 and in staying in the said house and that she is the owner of the said house; (ii) for a decree declaring that the impugned order dated 10th July, 1998 issued by the defen­dant No.1 (Annexure-'C') is bad in law liable to be set aside and for consequential order to this effect; (iii) for a decree declaring that the LSC No. Azl. 1383 of 1994 is void ab initio. ' (iv) For any other reliefs this court may deem fit and proper." 5.2 (two) sets of written statements were filed-one by the defendant Nos. 1 to 5 and the other by the defendant No. 6. In the written statement of the defendant Nos. 1 to 5, it was stated that the plaintiff had unauthorisedly occupied and constructed a house within the area covered by LSC No. Azl. 13 83 of 1994 belonging to the defendant No. 6 and that Shri R.C. Liandawla was not the real owner of LSC No. Azl.555 of 1985. The LSC No.(Azl) 555 of 1985 was issued in the name of Pu Laldingliana and the same was cancelled by the competent authority in pursuance of an agreement by "concerned persons". It was stated that Laldingliana was the owner and the holder of LSC No. Azl.555 of 1985 upto 24.3.1992 and his prayer for transfer of land to ITI Veng was considered. It was also stated that there was an alleged transfer of the LSC of Pu Laldingliana to Pu R.C. Liandawla in 1990. Such transfer was done illegally and without proper verification. The defendant Nos. 1 to 5 also pleaded that they were not aware of any purchase of LSC No. Azl.555 of 1985 by the plaintiff and there are no documents on record evidencing such sale and purchase. The answering defendants also justified issuance of the demolition no­tice. Such transfer was done illegally and without proper verification. The defendant Nos. 1 to 5 also pleaded that they were not aware of any purchase of LSC No. Azl.555 of 1985 by the plaintiff and there are no documents on record evidencing such sale and purchase. The answering defendants also justified issuance of the demolition no­tice. It was also pleaded that if at all there is any dispute with regard to the land in ques­tion, it was only Pu Liandawla who could have maintained a suit and that the plaintiff did not have any locus-standi. 6. In the written statement filed by the de­fendant No. 6, amongst others, it was stated that the plaintiff had unauthorisedly occupied and constructed a house within the area covered by LSC No. Azl. 1383 of 1994 belong­ing to the answering defendant and therefore, a written complaint was submitted to the au-thorities by her. It was stated that LSC No. Azl.555of 1985 belonging to Pu Laldingliana was obtained illegally without proper verifi­cation of the concerned surveyor as it over­lapped the House Site Pass No. 766 of 1972. The said LSC was transferred to Pu Liandawla, who was stated to be working in the Revenue Department in the capacity of surveyor. It was further stated that the House Site Pass No. 766 of 1972 was converted into LSC No. Azl. 13 83 of 1994. The sale of the land was branded as illegal and the deeds are alleged to be fabricated. Tracing the his­tory of House Site Pass No. 766 of 1972, it was averred that the same originally belonged to one Pi Rokimi and she had given the land to the husband of the defendant No. 6 on 31.8.1981 and thereafter, her husband, hav­ing applied for conversion of the House Site Pass into LSC, the same was converted to LSC No. Azl. 1383 of 1994. At one point of time, BRTF had occupied the land and after vacation of the land by BRTF, when the an­swering defendant wanted to construct a house, a dispute had arisen amongst the con­cerned parties including Pu Laldingliana who had claimed ownership of the disputed land by producing LSC No. Azl. 555 of 1985 and the parties to the dispute reached an agree­ment on the initiative taken by the authorities on 18.11.91 and the agreement was accord­ingly reduced into writing. 555 of 1985 and the parties to the dispute reached an agree­ment on the initiative taken by the authorities on 18.11.91 and the agreement was accord­ingly reduced into writing. It was further stated that the authority, in pursuance of the agree­ment dated 18.11.91, issued an order declar­ing that the LSC No. 555/85 was invalid as there was no vacant land in the disputed area and that therefore, Pu Laldingliana be given another suitable plot of land at ITI Veng for transfer of the said LSC No. 555 of 1985, as had been already applied for by him. Accord­ingly, Pu Laldingliana was requested to sub­mit LSC No. 555 of 1985 by an order of the Revenue Department dated 24.3.1992. The defendant No. 6 in her written statement also stated that there is legal sanction for issuance of the eviction notice and the demolition or­der in view of the provisions of section 3(7) of the Lushai Hills District (House Site) Act, 195 3. It was stated that there is no illegality and infirmity in issuing LSC No. Azl. 1383 of 1994 in her favour and the same Nis issued following procedure prescribed by laws. 7. During trial, the plaintiff examined 3 witnesses including herself and exhibited 2 documents. Defendant Nos. 1 to 5 adduce the evidence of 3 witnesses. Defendant No. 6 examined 2 witnesses including herself in support of her case. The defendant No. 6 exhibited 7 documents. 8. The learned trial court framed six is­sues: "(i) Whether the Suit is maintainable its present form and style? (ii) Whether the plaintiff has locus standi? (in) Whether the LSC No.Azl.555/85 pur­chased by the Plaintiff is illegal? (iv) Whether the Plaintiff and the previous owner of the LSC No.Azl.555/85 have already been given alternative land and whether the LSC No.Azl.555/85 is no longer a valid LSC? (v) Whether there was a valid agreement between the Government and the father of the previous owner of the LSC No.Azl.555/85 and the Defendant No.6 in which an alternative ar­rangement in respect of the LSC No.Azl.555/85 was made at ITI? (vi) Who is the owner of the disputed landed property?" The learned trial court vide judgment and decree dated 19.4.2007 dismissed the plaintiffs suit by recording a finding that the LSCNo.Azl.555 of 1985 purchased by the plaintiff is invalid and illegal. (vi) Who is the owner of the disputed landed property?" The learned trial court vide judgment and decree dated 19.4.2007 dismissed the plaintiffs suit by recording a finding that the LSCNo.Azl.555 of 1985 purchased by the plaintiff is invalid and illegal. The trial court took note of certain exhibits produced by the defendants including a document dated 27.9.1988 treating it to be Ext. D-(VIII). Is­sue No. 4 was also decided against the plaintiff on the basis of perusal of Ext. D-l to D-7. Issue Nos. 5 and 6 were also decided against the plaintiff. 9. Against the aforesaid judgment and de­cree dated 19.4.2007, an appeal was pre­ferred in the Court of Additional District and Sessions Judge, Aizawl which was registered as RFANo. 8/07. The lower appellate court opined that the judgment of the trial court "appears to have been heavily tainted by biasness in favour of the defendant No. 6 and others by upholding thejr documents and depositions without any discussion on the grounds for such acceptance on facts or law" and that there was no evaluation of the evi­dence adduced by the witnesses. The learned Lower appellate court took a view that the learned trial court was greatly prejudiced and was biased in dismissing the suit of the plain­tiff. The learned lower appellate court, ac­cordingly, by the impugned judgment and decree under appeal, set aside the judgment of the learned Trial court and allowed the appeal, granting the plaintiff the relief claimed. 10. Mr. Malhotra submits that the learned lower appellate court is wholly unjustified in attributing biasness on the part of the learned trial court. He has submitted that a perusal of the judgment of the learned trial court would indicate that there is no discussion on the docu­mentary evidence adduced by the plaintiff. Omission to refer to such documents should not have invited such scathing criticism by the learned lower appellate court. The judgment of the learned lower appellate court, accord­ing to him, also suffers from the very same ills that have afflicted the judgment of the learned trial court. Not a single document has been considered and/or discussed by the learned lower appellate court. No evidence of any of the witnesses bearing on the issues is also averted to. The judgment of the learned lower appellate court, accord­ing to him, also suffers from the very same ills that have afflicted the judgment of the learned trial court. Not a single document has been considered and/or discussed by the learned lower appellate court. No evidence of any of the witnesses bearing on the issues is also averted to. Although the learned lower ap­pellate court has indicated in the judgment that he had carefully perused the materials avail­able on record, the same is not in consonance with the provisions of Order 41 Rule 31 of the CPC. The learned counsel submits that in the instant case, the findings recorded by the lower appellate court was on assumptions and not supported by the evidence on record. He also submits that the learned lower appellate court decreed the suit of the plaintiff without considering as to whether the plaintiff had proved her case. The learned counsel sub­mits that the appellate court must consider the evidence on record in its true perspective and if ajudgment is rendered without averting to the deposition of the witnesses and the docu­ments exhibited, the same would be ajudg­ment which can be said to be perverse, call­ing for interference at the hands of the Court in second appeal. The learned counsel has placed ajudgment of the Apex Court ren­dered in the case of Mehrunnisa (Smt) & Ors. Vs. Vis ham Kumari (Smt) &Anr. re­ported in 1998(2) SCC 295 , to contend that the appellate court is under a duty to examine the entire relevant evidence on record and if it refuses to consider important evidence hav­ing direct bearing on the disputed issue and the error which arises is of the magnitude that it gives birth to a substantial question of law, the High Court is fully authorised to set aside the finding. In view of the aforesaid, the learned counsel for the appellant submits that the impugned judgment of the lower appel­late court ought to be set aside and the mat­ter remanded back for disposal in accordance with law. 11. The first appellate court is the final court of facts, and therefore, it is incumbent on the appellate court to consider the evi­dence adduced by the parties and documents exhibited. 11. The first appellate court is the final court of facts, and therefore, it is incumbent on the appellate court to consider the evi­dence adduced by the parties and documents exhibited. In a case where the appellate court agrees with the view of the trial court on the evidence, it may not be necessary for the appellate court either to reiterate the rea­sons given by the trial court or to reaffirm the effect of the evidence. In such a case, expressions of general agreement with the reasoning given in the judgment which is un­der challenge before the appellate court would normally suffice. In the case of affir­mation of ajudgment appealed against, the reasoning offered by the trial court can be said to be the view or reasons of the appel­late court. However, when it is a case of judg­ment of reversal, the learned appellate court is required to independently assess the evi­dence on record. It is in this context the pro­visions of Order 41 Rule 31 CPC cannot be lost sight of. In the case of judgment of re­versal, reasons for decision has to be ap­parent. A decision rendered without avert­ing to the evidence on record and highlighting, at least, the salient features thereof, cannot be said to be ajudgment in conformity with the mandate of Order 41 Rule 31 CPC. Merely saying that it has pe­rused the materials on record, in the consid­ered opinion of the court, would not meet the requirements of Order 41 Rule 31 CPC. A perusal of the impugned judgment of the lower appellate court indicates that it has not averted to the deposition of any of the wit­nesses and also there is no discussion at all on the documentary evidence on record. In the instant case, discussion of the evidence on record by the lower appellate court was all the more essential, because, according to the lower appellate court, the trial court was not right in not referring to the evidence adduced by the plaintiff. It is true that the judgment of the trial court suffers from the shortcoming of not taking into consideration the evidence on record as a whole and in not summarising, at least, what is the pro­jected case of the parties as unfolded by the evidence on record. The trial court has also considered a document as Ext-VIII, al­though the said document is not an exhib­ited document. The trial court has also considered a document as Ext-VIII, al­though the said document is not an exhib­ited document. Non consideration of the oral and documentary evidence by the appellate court has vitiated its ultimate conclusion and therefore, the decision falls in the category of perverse conclusions. Accordingly, the substantial question of law is answered in the affirmative holding that the judgment and decree passed by the learned lower appel­late court is perverse. 12. In the result, the impugned judgment and decree dated 24.9.2010 passed by the learned Court of Additional District and Ses­sions Judge, Aizawl in RFANo. 8/07 is set aside and the matter is remanded back to the learned lower appellate court for disposal in accordance with law. 13. Since the plaintiff, who was the ap­pellant in RFANo. 8 of 2007 is not repre­sented before this Court, the learned lower appellate court will issue notice to all the par­ties in the appeal before proceeding further in the matter. 14. Transmit the records of RFANo. 8 of 2007 as well as Title Suit No. 7 of 1998 to the Court of the Additional District and Ses­sions Judge, Aizawl. 15. No costs.