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2016 DIGILAW 1017 (GAU)

Union of India v. T. Zirkunga

2016-11-18

M.R.PATHAK

body2016
JUDGMENT AND ORDER : M.R. Pathak, J. (CAV) Heard Ms. Zairemsangpuii, learned CGC appearing for the appellants and Mr. C. Lalramzauva, learned senior counsel assisted by Mr. Jonathan L. Sailo, learned counsel for the respondent Nos. 1 and 2. 2. The present respondent Nos. 1 to 3 alleged that the appellants herein and the respondents No. 4 to 7 damaged their land at Aizawl-Lunglawn road, Lunglei by entering forcefully and therefore they as plaintiffs filed a suit against the appellants and respondent nos. 4 to 7 being Title Suit No. 5/2004 before the Court of Additional District Magistrate, Lunglei, Mizoram praying for a decree for payment of compensation towards damages with interest @ 12% from the date of cause of action arose till the full payment is made, for a decree that the defendants shall not to encroach their land involved in the suit in further and further for a decree for payment of the cost of the suit payable by the defendants. 3. The contention of the plaintiffs respondents Nos. 1 to 3 are that they are the lawful land holders of patta land at Aizawl-Lunglawn road, Lunglawn, Lunglei through (i) LSC No. 440/1984 comprising an area of 769 sq. feet, (ii) LSC No. 878/1990 comprising an area of 3050 sq. feet and LSC No. 7/1978 comprising an area of 4843 sq. feet respectively and the defendants while widening the National Highway between Aizawl and Lunglei forcibly encroached their said land involved in the case and destroyed the same by depositing huge amount of moulded excavated soil over it and thereby destroyed the interest and the production of the said land. In their said plaint the plaintiffs also contended that the present appellants, i.e. the Border Task Force by encroaching their land, deposited large volume of excavated soil over it using JCB and Bull dozers and also dragged their said land by which they endangered their life, making the plaintiffs unable to build or construct any house over it. It was also stated that though the plaintiffs approached the defendants they did not pay any heed to it. The plaintiffs submitted that the cause of action that suit arose on 10.03.2003 when the plaintiffs had to abandon their land owing to the encroachment made by the defendants' appellants. 4. To established their claims the plaintiffs with their said pliant enclosed Xerox copies of their LSCs mentioned above. 5. The plaintiffs submitted that the cause of action that suit arose on 10.03.2003 when the plaintiffs had to abandon their land owing to the encroachment made by the defendants' appellants. 4. To established their claims the plaintiffs with their said pliant enclosed Xerox copies of their LSCs mentioned above. 5. The present appellants, the defendants Nos. 1 to 5 on receipt of summon entered into the suit and contested the matter by filling their written statement. During pendency of the said suit, the original plaintiff Nos. 1 and 2 expired and they were duly substituted by their legal representatives on their application which were allowed by the Court vide Order dated 09.07.2007. Though the present appellants as defendants No. 1 to 5 filed objection in the suit stating that it was barred by limitation, bad for non-joinder of parties, no cause of action arose against them and that the suit is liable to be rejected on the ground of latches waiver and acquiesce and that the plaint is incomplete in its material particulars. In their written statements the defendants present appellants also stated that land, structures entries etc. standing over the land effected for widening the road between Aizawl to Lunglei was jointly assessed by a Joint Enumeration Committee (JEC) comprising the Officers of the Government of Mizoram including Deputy Commissioner of Lunglei, Settlement Officer, concerned Village Councils, residents of the concerned locality and that such enumerations were done in presence of the representatives of the present appellants BRTF and the effected land owners and thereafter, the said JEC prepared the assessment of compensation payable to the effected land owners. It was further stated in their written statement that the damage compensation so assessed for the land and the trees, structure standing over such land were deposited to the Deputy Commissioner, Lunglei in 2002 itself, which were paid to the land owners whose land were effected while widening the said road, but the present plaintiffs at the relevant time during such JEC and while widening the road in question did not approach the authority nor filed any such complaints or objections and an they served legal notice only on March 2004. The defendant BRTF in their written statements also stated that the excavated soils that were extracted during widening the said road in question were disposed of on the valley side of the road in natural slope in a proper manner in open and barren land which did not destroy any structure visitation etc. nor they encroached, occupied or utilised any portion of plaintiffs land as claimed by them and they have only constructed the said road as per the direction issued by the Deputy Commissioner, Lunglei. During the adjudication of said suit following 7 issues were framed :- (i) Whether the present suit is maintainable in its present form and style ? (ii) Whether the present suit is barred by law limitation doctrine of estoppels, waiver and acquisitions ? (iii) Whether there is any cause of action against the defendants ? (iv) Whether the plaintiffs are entitled to any reliefs claimed and if so to what extent and in what manner ? (v) Whether the plaintiffs have any locus standi to file the suit ? (vi) Whether the defendants had encroached the plaintiffs land ? (vii) Whether the plaintiffs had LSCs or not ? 6. The present appellants/defendants raised the issue of submission of xerox copies of Land Settlement Certificates (LSCs) of the plaintiffs with their plaint and their failure to produce its original documents to prove their claim stating that those xerox copies produced by the plaintiffs cannot be considered as evidence. 7. To establish their claim the plaintiffs examined 4 (four) witnesses including the wife of the deceased plaintiff No. 1, son of the deceased plaintiff No. 2, being their legal representatives, the plaintiff No. 3 himself and the then President of Young Mizo Association, Lunglawn Branch, who were duly cross examine by the defendants. Further, the defendants/appellants examined only one witness from their side who was serving as an Assistant Engineer (Civil) in the BRTF. 8. After examination of the witnesses and hearing the parties the District Judge, Lunglei by his Judgment and Decree dated 26.5.2009 partly allowed the said suit of the plaintiffs respondent Nos. 1, 2 and 3 directing the defendants the present appellants to pay Rs. 10,000/- to the legal heirs of the plaintiff No. 1, Rs. 40,000/- to the legal heir of plaintiff No. 2 and Rs. 50,000/- to the plaintiff No. 3, together amounting to Rs. 1, 2 and 3 directing the defendants the present appellants to pay Rs. 10,000/- to the legal heirs of the plaintiff No. 1, Rs. 40,000/- to the legal heir of plaintiff No. 2 and Rs. 50,000/- to the plaintiff No. 3, together amounting to Rs. 1 lakh, further directing the present appellant Nos. 3, 4 and 5 to deposit the said amount within a month from the date of said judgment, observing that failure to deposit the said amount as directed will carry 10% interest per annum, from the date of a copy of this order. 9. Being aggrieved with the same the present appellants preferred an appeal being RFA No. 7/2009 before this Court stating that the value of the said suit as incorporated in the plaint by the plaintiff was beyond Rs. 10 lakhs and therefore the said suit ought to have been tried by a Senior Civil Judge of the District who has the unlimited pecuniary jurisdiction and the District Judge of the District being the First Appellate Court it has no original jurisdiction to try the said suit and therefore submitted before the Court to set aside and quash the said Judgment and Decree dated 26.05.2009 passed by the District Judge, Lunglei in Title Suit No. 5/2004. Considering the arguments of the parties and accepting the prayer of the appellants, this Court by Order dated 18.05.2010 allowed the said RFA No. 7/2009 and set aside and quashed the said Judgment and Decree dated 26.05.2009 passed by learned District Judge, Lunglei and remanded back the matter to the Court of Civil Judge Senior Division, Lunglei to try the said Title Suit No. 5/2004 denovo and to pass the decree in the said suit in accordance with law. 10. After its remanded, said Title Suit No. 5/2004 was adjudicated by learned Senior Civil Judge, Lunglei and after hearing the parties passed the impugned Judgment and Decree dated 28.07.2010 in favour of the plaintiffs, holding that the defendants, i.e. the present appellant Nos. 3 to 5 illegally encroached the land of the plaintiffs in their LSC Nos. 440/1984, 878/1990 and 7/1978 respectively while widening the National Highway No. 54, Aizawl to Lunglei and therefore, the said defendants/appellants are bound to pay compensation to the plaintiffs. 3 to 5 illegally encroached the land of the plaintiffs in their LSC Nos. 440/1984, 878/1990 and 7/1978 respectively while widening the National Highway No. 54, Aizawl to Lunglei and therefore, the said defendants/appellants are bound to pay compensation to the plaintiffs. By the said Judgment and Decree dated 20.08.2010, the learned Trial Court directed the Deputy Commissioner, Lunglei, who is in charge of the Revenue Department of the District, to make necessary assessment of the compensation payable by the defendants/appellants Nos. 3 to 5 that are entitled by the plaintiffs of the suit, with regard to destruction of their land under those LSCs that are located at Lunglawn, Lunglei and to submit his report/assessment of compensation to the said Court within a period to two months from the date of said Judgment. In the impugned Judgment and Decree dated 28.07.2010, the learned Trial Court further directed the appellants herein to deposit the amount of compensation that is to be assessed by the Deputy Commissioner, Lunglei before the Trial Court within a period of one month from the date of submissions of said assessment report by the by the concerned Deputy Commissioner. 11. Being aggrieved with the said Judgment Decree dated 28.07.2010, the appellants preferred this appeal stating that as directed by this Court on 18.05.2010 in RFA 7/2009 there was no denovo trial of the Title Suit No. 5/2004 and the plaintiffs failed to adduce any evidence regarding their land by producing the original land documents except enclosing the Xerox copies of LSCs. 12. It is also contended by the appellants that without any basis and evidence the trial court arbitrarily came to the to the conclusion and decided the issues that the land of the plaintiffs were encroached and damaged by the appellants without the land documents of the plaintiffs being proved with the originals. It is also urged by the appellants that as the plaintiffs failed to prove the original land documents to prove their rights over it. The appellants also contended that as per the assessment made by the Joint Enumeration Committee regarding any such damage caused to the land owners while widening the road in question was already deposited to the Deputy Commissioner Lunglei and the Trial Court by the impugned Judgment and Decree arbitrarily saddled the liability for payment of compensation to the plaintiffs by the appellants. 13. Learned senior counsel Mr. 13. Learned senior counsel Mr. C. Lalramzauva appearing for the respondent Nos. 1 to 3 submitted that the present appellants, the defendants Nos. 1 to 5 did not challenge the title of land of the plaintiffs and as such they now cannot challenge the same and for that purpose they have not even prayed for it. Moreover, the Deputy Commissioner Lunglei have not yet assessed the compensation in terms of the impugned decree and therefore, the present appeal is a premature one. 14. Order 7 of the Code of Civil Procedure relates to plaint. Order 7, Rule 1 of the CPC prescribed the particulars to be contained in plaint. As per the provisions of Order 7, Rule 3 of the CPC, where the subject matter of the suit is immovable property, the plaint should contain description of the property sufficient to identify it and in case of such property can be identified by boundaries or numbers in a record of settlement or survey the plaint should specify such boundaries or numbers. Order 7 of CPC also includes documents relied on in plaint and Order 7, Rule 14 provides for production of documents on which plaintiffs sues or relies and it reads as follows - 14. Production of document on which plaintiff sues or relies (1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such document in a list, and shall produce it in court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint. (2) Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is. (3) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit. (4) Nothing in this rule shall apply to document produced for the cross examination of the plaintiffs witnesses, or, handed over to a witness merely to refresh his memory. 15. (4) Nothing in this rule shall apply to document produced for the cross examination of the plaintiffs witnesses, or, handed over to a witness merely to refresh his memory. 15. Similarly Order 8 of CPC relates to written statement, set off and counter claim. Further Order 8, Rule 1 of CPC relates to written statement whereas Order 8, Rule 1A provides the duty of the defendants to produce documents upon which relief is claim or relied upon by it. 16. With regard to the suit involved in the case, plaintiffs relied upon the three LSCs and enclosed Xerox copies of those LSCs with their plaint. From the evidence on record it is seen that the plaintiffs did not produce the original copy of the land documents relied by the plaintiffs and also submitted before the Trial Court that the land documents in originals with regard to their LSCs, on the basis of which they are claiming damage compensation from the defendants were not produced before Court but submitted that LSCs in their favour are not fake. The PW-1, wife of the deceased plaintiff No. 1 in her evidence in chief supported the claim as in the plaint admitting the exhibit P-1 LSC No. 440/1994 is in the name of her husband as shown in its Xerox copy and that she could not show the copy of the original before the Court and further admitted that the defendants (the present appellants) are not familiar with the locality of Lunglei, but stated that the Deputy Commissioner, Lunglei verified and survey the area in question and denied the fact that her deceased husband was not the owner in the land involved in the case. 17. Similarly son of the deceased plaintiff No. 2 in his evidence in chief supported the contention of the plaint and in his cross examination stated denied the fact that LSC No. 878/1890 on the basis of which his father claimed over his land is a fake LSC and that his father possess a fake LSC. But he admitted that he did not produce the original LSC before the Court and also admitted that the defendants (present appellants) are not familiar with the locality of Lunglei and therefore they are not suppose to know the land involved in the case and each respective owners. But he admitted that he did not produce the original LSC before the Court and also admitted that the defendants (present appellants) are not familiar with the locality of Lunglei and therefore they are not suppose to know the land involved in the case and each respective owners. The said PW-2 in his cross evidence also admitted that it is the Deputy Commissioner, Lunglei who should survey and verify the land before widening the road and he is not personally aware where the land was verified by the Deputy Commissioner or not and whether other persons received compensation towards damage of their land while widening the Aizawl-Lunglei road, but at the same time he did not deny that the compensation has to be paid to them by defendants. 18. PW-3 the plaintiff himself in his evidence in chief also supported the contention of the pliant in his favour but in his cross examination admitted the fact that the defendants (appellants herein) are strangers to their locality and are not familiar with their locality, more particularly with regard to their land and the respective owners and that he is aware regarding the joint verification conducted by the Deputy Commissioner Lunglei and that they are claiming damage on account of wrong done by the defendants over their land. Said PW-3 also admitted the fact that they did not submit compliant before the defendants or anything in that regard in writing. He denied the fact that he is not the owner of the land in question. 19. PW-4 is the president of the YMA Branch of Lunglam and he supported the claim of the plaintiffs. In his cross evidence he stated that he saw the LSCs of the plaintiffs but he admitted the fact that he did not personally verify the suit land with the documents of LSCs in question. On the other hand the defendants produced the necessary receipts of Rs. 14,39,950/- regarding payment of compensation towards land, building crops, foot bearing trees that were damaged during widening the National Highway No. 54 Aizawl to Lunglei and that Rs. 9,19,000/- was the assessment for Luanglam Village amongst such compensation. 20. On the other hand the defendants produced the necessary receipts of Rs. 14,39,950/- regarding payment of compensation towards land, building crops, foot bearing trees that were damaged during widening the National Highway No. 54 Aizawl to Lunglei and that Rs. 9,19,000/- was the assessment for Luanglam Village amongst such compensation. 20. As per the provisions of Section 63, 64 and 65 of the Evidence Act with regard to documentary evidence it must be proved with the evidence The Hon'ble Supreme Court in the case of Ram Surah Singh v. Prabath Singh @ Chhaotu Singh & Anr. Reported in (2009) 6 SCC 681 have held that for the purpose of considering evidence basically it must be proved that there was the original documents in existence at one point of time and in comparison with it photocopy was obtained and in absence of the original a photocopy is not admissible in evidence it is also settled that mere production of photocopies of a document do not amount to prove the same unless the copy given in evidence is shown aware to have been made from the original or to have been compared with the original from the evidence in record. 21. It is seen that the learned Trial Judge did not consider and ascertain the fact that the Xerox copies of the LSCs produced by the plaintiffs with regard to their claim over the land involved in the suit that those were copied from the original one as required under Section 67 of the Indian Evidence Act to prove and consider as valid documentary evidence. 22. The learned Trial Judge, Lunglei also failed to consider that the plaintiffs failed to produce the original land document to prove the issues involved in the suit in their favour and that the plaintiffs failure to explain any reason for non-production of the same. Therefore such secondary document cannot be considered as valid evidence in the eye of law, as the possibility of manipulation in Xerox or photocopy cannot be ruled out and it is only when the accuracy of such Xerox or photocopy is done then only such Xerox or photocopy can be considered as evidence, which shall come in the purview of secondary evidence as provided in the Indian Evidence Act. 23. 23. From the above it is clear that the Trial Judge passed the impugned judgment and decree dated 28.07.2010 solely on the basis of the Xerox copy of the LSCs that were produced on behalf of the plaintiffs, without being proved in original as per the requirement of the Indian Evidence Act and therefore those Xerox copies of the LSCs being not proved in original are not acceptable in the eye of the law. 24. From the reasons and discussions made above, the Court found that the decision arrived by the impugned judgment and decree dated 28.07.2010 passed by learned Senior Civil Judge, Lunglei in Title Suit No. 5/2004 is bad in law and accordingly set aside and quashed and now the learned Senior Civil Judge, Lunglei shall decided the said Title Suit No. 5/2004 afresh after hearing the parties on the basis of evidence already submitted by both plaintiffs and defendants. 25. Both the plaintiffs and defendants including the appellants and the respondents herein shall appear before the learned Senior Civil Judge, Lunglei on 09.12.2016 in the said Title Suit O. 5/2014. As the parties are represented by their respective counsels, the learned Trial Court need not issue fresh notice to the parties. 26. With the aforesaid observation and direction this appeal stands allowed. 27. Registry shall send the back the LCR with the copy of the Judgment forth with.