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2014 DIGILAW 1065 (GAU)

Jumkar Basar v. Karjum Basar

2014-12-18

INDIRA SHAH

body2014
JUDGMENT AND ORDER (CAV) Indira Shah, J. - By filing this petition under Section 50 of the Assam Frontier (Administration of Justice) Regulation, 1945, the petitioner has challenged the judgment and order dated 6.7.2011 passed by learned Additional Deputy Commissioner, West Siang District Basar in Case No. BSR/JDL (LK-176/10-11 Vol-III, Vol-II/175) whereby the keba decision dated 26.05.2011 has been set aside on the ground of limitation. 2. Heard Mr. P.K. Tiwari, learned Senior Counsel assisted by Mr. N. Ratan, learned counsel appearing for the petitioner, Mr. K. Lollen, learned counsel appearing for respondent No. 1 and Mr. K. Jini, learned counsel appearing for respondent No. 2. 3. The petitioner lodged a complaint dated 09.05.2011 to the Additional Deputy Commissioner, Basar, stating that the disputed land namely Keba Rijo near old market at Basar is his ancestral property. The respondent No. 2, Marbe Basar, illegally sold the land to Karjum Basar (respondent No. 1). On his prayer the matter was referred to Bango Level Keba for settlement of dispute. 4. It would be appropriate to reproduce the translated copy of Keba decision hereunder:- "Translated Copy KEBA Decision No. BSR/LK-176/10-11-VILL-11/6 Today on this 26.05.2011, the Basar Bango Level Keba decided the WRC land dispute in between Sri Jumkar Basar son of Sri Gejum Basar of Gori Village and Sri Marbe Basor of Soi Village. It is decided under the Chairmanship of Shri Goken Bam (CHGB). We the selected Keba members heard both the complainant and respondent Sri Jumkar Basar stated that the land sold out by Sri Marbe Basar belongs to him but due to some domestic problem. He could not have raised objection earlier. Anti Sri Marbe Basar states that the land was cultivated by my father also there was no complain from any side. Sri Marbe Basar further stated that he does not have any idea from where the land comes to him. Upon hearing the witnesses and both the parties, the selected Keba members decided that upon hearing the history of the land we found that the disputed land belongs to Sri Jumkar Basar. And for developing the land Sri Jumkar Basar is to give one female Mithun to Sri Marbe Basar. All the Keba members held that the land belongs to Henjum clan." 5. And for developing the land Sri Jumkar Basar is to give one female Mithun to Sri Marbe Basar. All the Keba members held that the land belongs to Henjum clan." 5. Aggrieved by the Keba decision, respondent No. 1 preferred an appeal before the Additional Deputy Commissioner, West Siang District under Section 46 of the Assam Frontier (Administration of Justice) Regulation wherein he alleged that the Keba decision was passed without impleading him as one of the respondent and thereby no opportunity of hearing was given to him. He claimed that he, since 02.04.1989, i.e., from the date of purchase of the disputed land, has been cultivating the land without any disturbance and therefore, he has acquired title by way of adverse possession. 6. After hearing learned counsels for both sides, following issues were framed by the appellate Court :- "Whether appeal filed by the appellant is maintainable? Whether the appellant has right to file appeal against the decision of the Keba? Whether sale transaction between Marbe Basar and Karjum Basar is sustainable as per law? If appellant has not pleaded for non admissibility in lower Court can the appellant plead as per limitation act in appellant Court? Whether the first application filed by Sri Jumkar Basar is admissible as per Limitation Act? 7. Learned Additional Deputy Commissioner held that appeal was maintainable as the petitioner in his complaint had mentioned that Marbe Basar (respondent No. 2) illegally sold his land to Katjum Basar (respondent No. 1). Therefore Karjum Basar comes under the definition of "Any person" under Section 46(1) of the Regulation, 1945. 8. It was further held by the Appellate Authority that although the sale transaction been respondent No. 1 & 2 was documented on plain paper with revenue stamp in particular settings of Arunachal Pradesh it was valid document. 9. While deciding the third issue on limitation it was observed that the illegal sale transaction was known to the petitioner but no complaint was made due to domestic problem of the petitioner and therefore law of limitation applies which bars the petitioner from making any claim at this stage. 10. It has been strenuously argued by Mr. P.K. Tiwari, learned Senior Counsel for the petitioner that under Assam Frontier (Administration of Justice) Regulation, 1945, there is no provision for limitation which governs the indigenous people. 10. It has been strenuously argued by Mr. P.K. Tiwari, learned Senior Counsel for the petitioner that under Assam Frontier (Administration of Justice) Regulation, 1945, there is no provision for limitation which governs the indigenous people. Moreover, there was no evidence to prove that the petitioner had knowledge of sale transaction since 1989. 11. It is submitted by the learned counsel for the petitioner that suit before the kebang is not guided by Civil Procedure Code and intricacies of Limitation Act is not applicable to suits before the Kebang. Relying on the case of Nityananda M. Joshi & Ors. v. Life Insurance Corporation of India, 1969 (2) SCC 199 and Town Municipal Council, Athani v. The Presiding Officer Labour Courts, Hubli, reported in 1969 (1) SCC 873 , it is submitted by the learned counsel that Article 137 of Limitation Act only contemplates application to Courts. In the cited decisions it was held that provisions of Limitation Act are not applicable to proceedings before bodies other than Courts. 12. In the cited case of L.S. Synthetics Ltd. v. Fairgrowth Financial Services Ltd., (2004) 11 SCC 456, it has been observed in para 33 and 41, as follows:- "33. The Limitation Act, 1963 is applicable only relation to certain applications and not all applications despite the fact that the words "other proceedings" were added in the long title of the Act in 1963. The provisions of the said Act are not applicable to the proceedings before bodies other than Courts, such as a quasi-judicial tribunal or even an executive authority. The Act primarily applies to the civil proceedings or some special criminal proceedings. Even in a tribunal, where the Code of Civil Procedure or Code of Criminal Procedure is applicable; the Limitation Act, 1963 per se may not be applied to the proceedings before it. Even in relation to certain civil proceedings, the Limitation Act may not have any application. As for example, there is no bar of limitation for initiation of a final decree proceeding or to invoke the jurisdiction of the court under Section 151 of the Code of Civil Procedure or for correction of accidental slip or omission in judgments, orders or decrees; the reason being that these powers can be exercised even suo motu by the Court and, thus, no question of any limitation arises. 41. A statute of limitation bars a remedy and not a right. 41. A statute of limitation bars a remedy and not a right. Although a remedy is barred, a defence can be raised. In construing a special statute providing for limitation, consideration of plea of hardship is irrelevant. A special statute providing for special or no period of limitation must receive a liberal and broader construction and not a rigid or a narrow one. The intent and purport of Parliament enacting the said Act furthermore must be given its full effect. We are, therefore, of the opinion that the provisions of the Limitation Act have no application, so far as directions required to be issued by the Special Court relating to the disposal of attached property, are concerned." 13. No period of limitation has been prescribed for filing a suit before the Kebang in the 1945 Regulation. Section 52 of the Regulation provides that the High Court, the Court of Deputy Commissioner, Assistant Commissioner shall be guided by the spirit, but shall not be bounded by the letter, of the Code of Civil Procedure, 1908 and shall follow subject to express provisions of these rules, in principles of the Indian Limitation Act, 1908 in disputes between persons who are not indigenous to the Union Territory of Arunachal Pradesh. 14. Thus, Section 52 expressly provides (i) High Court; (ii) Deputy Commissioner and (iii) Assistant Deputy Commissioner shall be guided by spirit of Civil Procedure Code and principles of Limitation Act only in case of disputes between persons who are not indigenous to the state of Arunachal Pradesh. Sub-Clause 2 Section 29 of the Limitation Act reads as under:- "Where any special or local law prescribed for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law." 15. In the cited case of Kobe Ete v. State of Arunachal Pradesh, reported in 2005 (Suppl) GLT 626, there was delay of 41 days in filing the Civil Revision Petition and application for condonation of delay was moved. This Court held as follows:- "12. Now having satisfied the requirement of Section 29(2) of the Limitation Act so far the provisions regarding the local law or special law is concerned, we are to see at this stage whether Section 52 of the 1945 Regulation can be interpreted to exclude the provisions of Section 4 to 24 of the Limitation Act, 1963 in the context of the said 1945 Regulation. On a bare reading of Section 29(2) shows that such exclusion is permissible so far as and the extent to which they are not expressly excluded by the special or local law. Section 52 of the 1945 Regulation incorporates specific provisions regarding applicability of the principles of the Limitation Act so for the persons who are not indigenous to the present State of Arunachal Pradesh. It has not provided expressly about the applicability or non applicability of the provisions of the Limitation Act so for the indigenous persons are concerned and Section 52 is silent about it. On the other hand, as discussed herein above, the scheme of the 1945 Regulation do not excluded the applicability of the provisions of the limitation altogether. Section 29(2) of the Limitation Act clearly indicates that such special or local law must provided the period of limitation under such special or local law must provided the period for limitation as contained in Sections 4 to 24 (inclusive) as found in the Limitation Act shall apply. Section 29(2) gets attracted for computing the period of limitation for any suit, appeal or application to be filed before authorities under special or local law if the conditions laid down therein are satisfied and once they get satisfied, the provisions contained in Sections 4 to 24 of the Limitation Act shall apply to such proceedings which obviously means that the procedural scheme contemplated by these sections of the Limitation Act would be applicable in case of filing appeal/revision under the provision of special or local law. 13. Turning to expression "expressly excluded' in Section 29(2) of the Limitation Act, the said expression is clearly demonstrative. It signifies exclusion by wants. 13. Turning to expression "expressly excluded' in Section 29(2) of the Limitation Act, the said expression is clearly demonstrative. It signifies exclusion by wants. It will not mean exclusion by a process of construction or by reasoning. If we are to exclude the provisions of applicability of the principles of the Indian Limitation Act, then we are to go for reasoning to the extent that as the said Section 52 makes a provision of applicability of the Limitation Act so far the persons who are not indigenous to the State of Arunachal Pradesh, therefore, the persons who are indigenous to the State of Arunachal Pradesh, are excluded. Such a construction will go against the provisions of the expression "expressly excluded". 16. It is submitted by Mr. Tiwari that the judgment of Kobe Ete v. State of Arunachal Pradesh & Ors., 2005(suppl) GLT 626 has no application to the facts of the present case. A judgment is only an authority for what is actually decides. In the case of Kobe Ete (supra) an argument was advanced that in indigenous person of Arunachal Pradesh cannot file an application under Section 5 of the Limitation Act for condonation of delay in filing a revision before High Court under regulation 50 of the Assam Frontier (Administration of Justice) Regulation, 1945. It was contended that under regulation 52 of the 1945 regulation, the provisions of Limitation Act, 1963 and Code of Civil Procedure, 1908 were made applicable in dispute between persons who are not indigenous to the State of Arunachal Pradesh. Since the period of limitation for application under regulation 50 of the 1945 regulation is 30(thirty) days, in the event of such an application being beyond the period of 30(thirty) days a person who is indigenous to Arunachal Pradesh cannot seek condonation of delay by filing an application under Section 5 of the Limitation Act, 1963. Hence, a provision which was made to protect the indigenous people of Arunachal Pradesh from technicalities of Code of Civil Procedure, 1908 and Limitation Act, 1963 was sought to be used against them. The objective behind the 1945 regulation was not to subject the simple tibal people from the technicalities of Limitation Act, 1963 and Code of Civil Procedure, 1908 while at the same time subjecting non tribal people to such technicalities of law. The objective behind the 1945 regulation was not to subject the simple tibal people from the technicalities of Limitation Act, 1963 and Code of Civil Procedure, 1908 while at the same time subjecting non tribal people to such technicalities of law. However, in Kobe Ete (supra) a reverse argument was advanced to deny tribal people the advantage of beneficial provision of the limitation act in the form of delay condonation if their application for revision under regulation 50 is not within the period of limitation. The judgment of this Hon'ble Court in Kobe Ete (supra) wherein the advantage of Section 5 of the Limitation Act, 1963 was also extended to the tribal people has to be seen in this context. 17. In case of Kaushalya Rani v. Gopal Singh, (1964) 4 SCR 982 : AIR 1964 SC 260 , it was held that Section 29(2) is supplemental in its character in so far as it provides for the application of Section 3 to such cases as would not come within its purview but for this provision. And for the purposes of determining any period of limitation prescribed by any special law, it has made the provisions of the Limitation Act, referred in clause (a) of subsection (2) of Section 29 applicable to such cases to the extent to which they are not expressly excluded by such special or local law, and clause (b) of the sub-section expressly lays it down that the remaining provisions of the Limitation Act shall not apply to cases governed by any special or local law. 18. This clause (b) of Section 29 has been excluded by Limitation Act, 1963. Now Section 5 is specifically made applicable by virtue of Section 29(2) of the Limitation Act, 1963. 19. 18. This clause (b) of Section 29 has been excluded by Limitation Act, 1963. Now Section 5 is specifically made applicable by virtue of Section 29(2) of the Limitation Act, 1963. 19. In views of Section 29(2) of the Limitation Act, 1963 Sections 4 to 24 of the Act are applicable to the proceedings not only before the Civil Court, but before all other authorities and not only the proceedings under the Civil Procedure Code, but to all other proceedings under the Civil Procedure Code, but to all other proceedings even under the special or local law, provided two conditions are fulfilled namely (1) that the special or local law does not exclude the operation of the operation of the Limitation Act, 1963 and (2) that the limitation prescribed under the special or local law is different from what is prescribed under the schedule to the Limitation Act. 20. The Assam Frontier (Administration of Justice) Regulation, 1945 does not expressly exclude the operation of Limitation Act and therefore, it cannot be considered that any suit/application can be filed anytime as no limitation is prescribed in the Regulation 1945. The provisions of the limitation can be made applicable in accordance with provisions of Section 29(2) of Limitation Act, 1963. 21. Apart from what has been discussed above, it has been consistently held that "even if there is no express provisions of Indian Limitation Act," state claims should not be given effect to where bar of the statute was inapplicable; the equity Courts refused to entertain the application filed after a considerable lapse of time to discourage laches and negligence. In the case of M/s Tilokchand and Motichand & Ors. v. H.B. Munshi & Anr., 1969 (1) SCC 110 , in para 10 & 11 has been observed as under:- "10. If then there is no period prescribed what is the standard for this Court to follow? I should say that utmost expedition is the sine qua non for such claims. The party aggrieved must move the Court at the earliest possible time and explain satisfactorily all semblance of delay. I am not indicating any period which may be regarded as the ultimate limit of action for that would be taking upon myself legislative functions. I should say that utmost expedition is the sine qua non for such claims. The party aggrieved must move the Court at the earliest possible time and explain satisfactorily all semblance of delay. I am not indicating any period which may be regarded as the ultimate limit of action for that would be taking upon myself legislative functions. In England a period of 6 months has been provided statutorily, but that could be because there is no guaranteed remedy and the matter is one entirely of discretion. In India I will only say that each case will have to be considered on its own facts. Where there is appearance of avoidable delay and this delay affects the merits of the claim, this Court will consider it and in a proper case hold the party dis entitled to invoke the extraordinary jurisdiction. 11. Therefore, the question is one of discretion for this Court to follow from case to case. There is no lower limit and there is no upper limit. A case may be brought within Limitation Act by reason of some article but this Court need not necessarily give the total time of the litigant to move this Court under Article 32. Similarly in a suitable case this Court may entertain such a petition even after a lapse of time. It will all depend on what the breach of the Fundamental Right and the remedy claimed are when and how the delay arose." 22. While perusing the Keba decision as well the impugned judgment passed by Additional Deputy Commissioner, it is pertinent to note that the respondent No. 1, who preferred appeal before the Deputy Commissioner was not party to the proceeding before the Keba. He produced a piece of paper before the appellate Court to show that the land was purchased by him in the year 1989. The contention of the petitioner in the said appeal was that cause of action for suit arose sometime in the year 2000 when the petitioner came to know about the sale transaction of the land. 23. Alternatively it is submitted that assuming the petitioner had filed a suit before the Civil Court of competent jurisdiction for possession of land based on previous possession, then under the Limitation Act, the period of limitation for filing of such suit under Article 64 of the Limitation Act been 12 years from the date of dispossession. 23. Alternatively it is submitted that assuming the petitioner had filed a suit before the Civil Court of competent jurisdiction for possession of land based on previous possession, then under the Limitation Act, the period of limitation for filing of such suit under Article 64 of the Limitation Act been 12 years from the date of dispossession. Under Section 17 of the Limitation Act when the suit is based upon the fraud of the defendant or respondent or his agent, the period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud. In the present case the petitioner had averred in his appeal before the Additional Deputy Commissioner that the factum of fraudulent sale was discovered by him in 2000 or 2006 (as mentioned in the impugned order of Deputy Commissioner). Since the complaint of the petitioner was dated 09.05.2011, in either case such a suit, if filed, would have been well within the limitation period of 12 years. Hence, in his view of the matter also the initial application of the petitioner cannot be held barred by limitation. 24. Article 64 of the Limitation Act, 1963, relates to suits for possession of immovable property based on previous possession, and not on title, whereas Article 65 applies to the category of suits where the action is founded on title. In both the cases period of limitation prescribed is 12 years, meaning thereby where the relief regarding possession of the suit property is the main relief, it would not be affected by lesser period of limitation. 25. It is not clear from the Kebang decision when the petitioner was dispossessed whether possession of the respondent No. 2 was permissive or adverse when the petitioner came to know about the sale transaction. Section 46(3) of the Assam Frontier(Administration of Justice) Regulation, 1945 says:- (i) The appellate Court shall, if necessary, examine the parties, and if the decision appears to be just, shall affirm and enforce the decision as its own. (ii) However, if the appellate Court sees grounds to doubt the justice of the decision, it shall try the case de novo. (iii) Or refer to a Panchayat; and in any case so referred the provision of Section 38 shall apply as if the parties had agreed to submit to arbitration. 26. (ii) However, if the appellate Court sees grounds to doubt the justice of the decision, it shall try the case de novo. (iii) Or refer to a Panchayat; and in any case so referred the provision of Section 38 shall apply as if the parties had agreed to submit to arbitration. 26. In this case, decision of village authority was reversed but neither de novo trial was conducted nor the matter was referred to Panchayat. The original proceeding before the Kebang itself was bad for non-joinder of respondent No. 1. The decision of appellate Court is bad in as much as there was no de novo trial. No opportunity was afforded to the parties to adduce evidence and rebuttal evidence on material issues. 27. In view of aforesaid discussions, this Court finds that it is a fit case to remit for de novo trial in terms of Section 46 of the Assam Frontier (Administration of Justice) Regulation, 1945. The impugned judgment and order passed by the Additional Deputy Commissioner, West Siang District, Basar in Case No. BSR/JDL(LK-176/10-11 Vol-III, Vol-II/175), is hereby set aside and quashed. The matter is remanded back for de novo trial in terms of Section 46 of the Regulation, 1945.