Research › Search › Judgment

Gauhati High Court · body

2017 DIGILAW 1268 (GAU)

SANGTHANGA v. C. LALMALSAWMI

2017-09-08

MICHAEL ZOTHANKHUMA

body2017
JUDGMENT : Zothankhuma, J. Heard Mr. C. Lalramzauva, learned senior counsel assisted by Ms. Emily L. Chhangte, learned counsel appearing for the appellant. Also heard Mr. Zochhuana, learned counsel for the respondent. The appellant's case in brief is that the appellant had constructed an Assam Type building in the year 1991 over the suit land with the consent of the owner, Smt. Lalrinpuii (L), sister of the respondent. The appellant also paid Rs. 400/- per month as rent for occupation of the land of Smt. Lalrinpuii (L) from 1991 till May 1992. The appellant gave a loan of Rs. 50,000/- to Smt. Lalrinpuii (L) on 29.05.1992 with a condition that she would repay the same within one month with interest @ 10% per month, failing which said Smt. Lalrinpuii (L) would forfeit half of her land including the portion in which the appellant had built his house. There was no written agreement executed between the appellant and Smt. Lalrinpuii (L) with regard to the loan of Rs. 50,000/- or the terms and conditions for the loan, that had been agreed between the appellant and Smt. Lalrinpuii (L). As Smt. Lalrinpuii (L) did not repay the loan amount of Rs. 50,000/-, with interest within one month, the appellant became the owner of the land on which he had built his house. 2. The appellant's further case is that despite the appellant being the owner of the suit land, besides being in occupation of the land that originally belonged to Smt. Lalrinpuii (L), the respondent issued a letter dated 24.08.2005 to the appellant which states as follows:- "Subject : Regarding occupation of land. Having constructed a house building within my land located at Bawngkawn Sairang Road, you have occupied the same since 1991 on a monthly rent of Rs. 400/-. You had paid the said monthly rent for a period of one year. On 29.05.1992 you had paid a sum of Rs. 50,000/- (Rupees fifty thousand) as an advance payment of rent to my sister Lalrinpuii. The said advance payment of the amount lasted till the month of May, 2002. Therefore, a sum of Rs. 12,800/- (Rupees twelve thousand eight hundred) is already due from you for the rent for the period from June, 2002 to August, 2005. The rent for the said land is being increased to Rs. The said advance payment of the amount lasted till the month of May, 2002. Therefore, a sum of Rs. 12,800/- (Rupees twelve thousand eight hundred) is already due from you for the rent for the period from June, 2002 to August, 2005. The rent for the said land is being increased to Rs. 2500/- p.m. w.e.f. August, 2005 and you are instructed to pay the amount already due before the expiry of September, 2005 failing which you shall have to vacate my said land within a period of one month, and that you shall have to demolish the house building constructed by you within my land within the same period of one month". 3. The appellant thereafter, submitted a reply dated 30.09.2005, in response to the respondent's letter dated 24.08.2005, stating that the appellant had constructed a house over the land belonging to Smt. Lalrinpuii (L) in the year 1991 and had been paying the monthly rent of Rs. 400/-. The appellant also stated in his letter that the land on which he had constructed the house had been gifted to Smt. Lalrinpuii (L) by the respondent's father, Shri. C. Sailala (L) in the year 1992. The appellant further stated that on 29.05.1992, Smt. Lalrinpuii (L) was given a loan of Rs. 50,000/- on the condition that half the portion of her share of the land would devolve upon the appellant if she failed to repay the loan amount along with interest @ 10% per month, within one month. The appellant in his reply dated 30.09.2005 thus stated that as he had been in occupation of the suit land for a period of 13 years and as the same had been mortgaged by him by Smt. Lalrinpuii (L), the respondent could not have any claim over the said land. Further, if the respondent wanted to repay the loan amount taken by her sister, the loan amount along with interest amounted to Rs. 8.5 lakhs. 4. The respondent thereafter, approached the Village Council Court, Bawngkawn in the year 2005, in respect of the dispute regarding non-payment of rent by the appellant and the claim of the appellant that the suit land belonged to him. The respondent had approached the Village Council Court, Bawngkawn as per the Lushai Hills Autonomous District (Administration of Justice) Rules, 1953 (herein after referred to as the 1953 Rules). 5. The respondent had approached the Village Council Court, Bawngkawn as per the Lushai Hills Autonomous District (Administration of Justice) Rules, 1953 (herein after referred to as the 1953 Rules). 5. The Village Council Court, Bawngkawn thereafter passed its Judgment dated 18.10.2005, directing the respondent to pay to the appellant, a sum of Rs. 50,000/- borrowed by her sister Smt. Lalrinpuii (L), within the year 2005. The appellant was also directed by the Village Council Court to vacate the suit land within the year 2005. 6. Smt. Lalrinpuii died on 05.11.2005. 7. Being aggrieved with the Judgment dated 18.10.2005 passed by the Village Council Court, Bawngkawn, the appellant preferred Civil Appeal No. 6/2005 in the Sub-District Council Court at Aizawl as per Rule of the 1953 Rules. Civil Appeal No. 6/2005 was disposed of by the Sub-District Council Court, Aizawl vide Judgment & Order dated 06.08.2009 wherein, it held that the suit filed by the respondent before the Village Council Court was barred by limitation under Article 65 of the Limitation Act. The Court of the Sub-District Council Court also held that the appellant claimed adverse position over the suit land, as he had been in possession of the said land by claiming the right and title over the suit land w.e.f. 29.06.1992. The First Appellate Court also held that the starting point for the respondent to claim right and title over the suit land was in the year 1992 when the respondent's sister Smt. Lalrinpuii (L) could not repay the loan amount of Rs. 50,000/-, within one month from 29.05.1992 and as the appellant had taken adverse possession of the land w.e.f. 29.06.1992. The Judgment of the Village Council Court dated 18.10.2008 was accordingly set aside in the Civil Appeal No. 6/2005. 8. Being aggrieved by the Judgment & Order dated 06.08.2009 passed in Civil Appeal No. 6/2005, the respondent preferred an appeal to the District Council Court as per Rule 30 of the 1953 Rules. The said appeal was registered as RFA No. 25/2009. 9. In the meantime, the Mizoram Civil Courts Act, 2005, (in short, the 2005 Act) came into force on 26.04.2006 and by way of the Mizoram Civil Courts Act, 2005, separation of Judiciary from the Executive took place in the State of Mizoram. The said appeal was registered as RFA No. 25/2009. 9. In the meantime, the Mizoram Civil Courts Act, 2005, (in short, the 2005 Act) came into force on 26.04.2006 and by way of the Mizoram Civil Courts Act, 2005, separation of Judiciary from the Executive took place in the State of Mizoram. Section 10 of the 2005 Act, was a transitory provision, inasmuch as, the District Council Court existing immediately prior to the appointed date w.e.f. promulgation of the 2005 Act, was deemed to be the Court of the Senior Civil Judge under the Mizoram Civil Courts Act, 2005. Accordingly, RFA No. 25/2009, which was pending before the District Council Court was decided by the Court of the Senior Civil Judge, Aizawl in view of Section 10(2) of the Mizoram Civil Courts Act, 2005. 10. RFA No. 25/2009 was disposed of vide Judgment & Order dated 11.04.2012 by the Court of the Senior Civil Judge-I by holding that the plea of adverse possession was not applicable in the present case and that the appellant had occupied the suit land as a tenant by paying monthly house rent. It also held that merely on the pretext of a debt owned by Smt. Lalrinpuii (L), the appellant could not claim ownership of the suit land without any valid agreement to prove the same. 11. The Judgment & Order dated 11.04.2012 passed by the Court of the Senior Civil Judge-I thereafter, set aside the Judgment & Order dated 06.08.2009 passed in Civil Appeal No. 6/2005 and restored the Judgment & Order dated 18.10.2005 passed by the Village Council Court, Bawngkawn. 12. Being aggrieved by the impugned Judgment & Order dated 11.04.2012 passed in RFA No. 25/2009, the appellant has filed the present appeal, which is registered as Regular Second Appeal No. 3/2012. 13. This Court vide Order dated 18.06.2012 has formulated the following substantial question of law:- "Whether the suit filed by the respondent before the Bawngkawn Village Court was barred by limitation". 14. The counsel for the appellant submits that the appellant had built his house over the suit land after taking the permission of Smt. Lalrinpuii (L), the owner of the suit land. He submits that the suit land was gifted to Smt. Lalrinpuii (L) by the respondent's father, when he distributed his land between his three daughters. He submits that though the appellant was paying Rs. He submits that the suit land was gifted to Smt. Lalrinpuii (L) by the respondent's father, when he distributed his land between his three daughters. He submits that though the appellant was paying Rs. 400/- per month as rent while occupying the land of Smt. Lalrinpuii (L), Smt. Lalrinpuii (L) took a loan of Rs. 50,000/- from him on 29.05.1992, on the condition that the same would be repaid within one month with interest @ 10% per month. In the event, Smt. Lalrinpuii (L) could not repay the said loan, half of the land of Smt. Lalrinpuii (L), including the land on which the appellant had built his house, was to devolve upon the appellant along with all the ownership rights, title and interest. As Smt. Lalrinpuii (L) could not repay the amount within the 1 month period agreed to, the appellant became the owner of the suit land from 29.06.1992. The counsel for the appellant submits that the respondent was aware that Rs. 50,000/- had been taken as loan by Smt. Lalrinpuii (L) and the same was not advance rent. Accordingly, the period of limitation had to be counted from July 1992, as the appellant became the owner of the suit land from 29.06.1992. He also submits that as the appellant became the owner of the suit land w.e.f. 1992, the filing of the suit by the respondent in respect of the suit land in the Village Council Court in the year 2005 was barred by limitation and the doctrine of adverse possession also came into play. He submits that in view of the Limitation Act, 1963 being applicable to the State of Mizoram, the impugned Judgment & Order dated 11.04.2012 passed in RFA No. 25/2009 should be set aside. 15. Mr. Zochhuana, learned counsel for the respondent on the other hand submits that the respondent's sister Smt. Lalrinpuii (L) was never the owner of the suit land. He submits that after the death of the respondent's father, Sh. C. Sailala in the year 1988, the suit land which was covered by LSC No. Azl-18/1983, with an area of .62 Bighas, was transferred in the name of the respondent by the Land Revenue & Settlement Department, Government of Mizoram on 09.08.1990. He submits that after the death of the respondent's father, Sh. C. Sailala in the year 1988, the suit land which was covered by LSC No. Azl-18/1983, with an area of .62 Bighas, was transferred in the name of the respondent by the Land Revenue & Settlement Department, Government of Mizoram on 09.08.1990. Thereafter, a portion of the land was sliced out from LSC No. Azl-18/1983 in favour of the respondent's sister C. Lalthlamuani on 24.05.2001 and the remaining portion, having an area of .20 Bighas, was re-issued to the respondent vide LSC No. Azl-18/1983. 16. He submits that the above facts clearly goes to show that Smt. Lalrinpuii (L) was never the owner of the suit land in question. He also submits that the doctrine of adverse possession cannot be applied in the present case, inasmuch as, the request of the respondent to the appellant to vacate the respondent's land was made only in the year 2005, vide letter dated 24.08.2005, and accordingly, the suit filed in the Village Council Court, Bawngkawn in the year 2005 was within the limitation period. He also submits that adverse possession can be pleaded only against the owner of the land and it cannot be pleaded against Smt. Lalrinpuii (L). He also submits that there is no averment or evidence to show that the respondent had requested the appellant to vacate the suit land prior to the letter dated 24.08.2005. 17. He also submits that in view of Section 31 of the Mizoram Civil Courts Act, 2005, the Judgment & Order dated 11.04.2012 passed in RFA No. 25/2009 by the Court of the Senior Civil Judge-I would have to deemed to be a proceeding under the said 2005 Act. Accordingly, the RFA No. 25/2009 would have to be considered to be a second appeal, even though a wrong nomen-clature of "RFA" had been fixed. He thus submits that the present appeal is not permissible as there cannot be any third appeal under the CPC or the 2005 Act. He submits that the only alternative for the appellant is to approach the Apex Court by way of a Special Leave Petition as the present appeal is not maintainable. 18. I have heard the learned counsels for the parties. 19. As shown in the preceeding paragraphs, the respondent had filed a case for eviction of the appellant in the Village Council Court. 18. I have heard the learned counsels for the parties. 19. As shown in the preceeding paragraphs, the respondent had filed a case for eviction of the appellant in the Village Council Court. Civil Appeal No. 6/2005 was filed in the Sub District Council Court as per the 1953 Rules. Subsequently, a further appeal was preferred in the District Council Court as per Rule 30 of the 1953 Rules. The said appeal filed in the District Council Court was registered as RFA No. 25/2009. In view of seperation of the judiciary from the executive in Mizoram vide the Mizoram Civil Courts Act, 2005, RFA No. 25/2009, which was pending in the Court of the District Council Court was decided by the Court of the Senior Civil Judge, Aizawl in view of Section 10(2) of the Mizoram Civil Courts Act, 2005. Section 10 of the Mizoram Civil Courts Act, 2005 is a transitory provision incorporated in the 2005 Act due to dissolution of the District Council Courts as per Section 31 of the 2005 Act. Section 10(2) of the 2005 Act is reproduced below:- "10(2) The District Council Court existing immediatley prior to the appointed date shall, with effect from the appointed date be deemed to be Court of Senior Civil Judges under his Act until they are constituted in accordance with this Act". 20. There is no provision in the CPC or in the Mizoram Civil Courts Act, 2005 for filing a third appeal. However, as per Clause-3 of the Assam High Court (Jurisdiction over District Council Courts) Order, 1954, an appeal against the final order or the decision of the District Council Court in a Civil Suit, where the valuation of the suit is Rs. 1000/- or more, lies to the High Court. Section 17(2) of the 2005 Act states as follows:- "17. Appeals etc. --- (2) Appeals from the decrees and orders passed by a Court of Senior Civil Judge in original suits and proceedings of civil nature, shall when such appeals are allowed by law, lie - (a) to the Court of the District Judge of that district when the amount or value of the subject matter of the original suit or proceedings is less than five lakhs of rupees or such other sum as the High Court may, from time to time, specify. (b) to the High Court, in other cases". 21. (b) to the High Court, in other cases". 21. Thus, at the time of admission of this appeal, this Court vide Order dated 18.06.2012 had formulated the following substantial question of law:- "whether the suit filed by the respondent before the Bawngkawn Village Court was barred by limitation". 22. The evidence adduced by the parties goes to show that there was no agreement/document executed between the appellant and Smt. Lalrinpuii (L) in respect of the alleged loan amount of Rs. 50,000/-. There being no document, the alleged terms and conditions of the oral agreement made between the appellant and Smt. Lalrinpuii (L) is all speculative in nature. There is nothing to show that Smt. Lalrinpuii (L) was the owner of the suit land or that the property in which the appellant was residing was gifted to Smt. Lalrinpuii by her late father. In fact, the suit property covered by the Land Settlement Certificate (LSC No. 18/1983) had been transferred in the name of the respondent from her father Sh. C. Sailala on 09.08.1990. Thereafter, LSC No. 18/1983 was again re-issued to the respondent on 24.05.2001, after a portion of the land had been sliced out in favour of the respondent's sister Smt. C. Lalthlamuani. It is an admitted fact that there is nothing on record to show that the suit land was in the name of Smt. Lalrinpuii (L) at any point of time. 23. The cross examination of the appellant's witness Sh. Lalzarliana, A.S.I. of Police is to the effect that he remembers the appellant filing a complaint in 1994 with regard to the Rs. 50,000/- given to Smt. Lalrinpuii (L). If the appellant became the owner of the suit property w.e.f. July 1992 due to non repayment of the loan amount, as he has claimed, there was no reason for the appellant to have filed a complaint in 1994 with respect to the Rs. 50,000/- given to Smt. Lalrinpuii (L). The appellant could not have claimed to be the owner of the suit land in 1994 on the plea of adverse possession, if he had filed a complaint with regard to the money in the year 1994, which was allegedly a loan. The concept of adverse possession contemplates a hostile possession, i.e., a possession which is expressly or impliedly in denial of the title of the true owner. The concept of adverse possession contemplates a hostile possession, i.e., a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge other's rights, but denies them. The principle of law is firmly established that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to a denial of his title to the property. Thus, the filing of the complaint by the appellant with the Police in the year 1994 with regard to his alleged unpaid loan implies that his possession of the property was not adverse/hostile to the rights of the real owner. Also the adverse possession could have at best be claimed only after the filing of the Police complaint and as the suit against the appellant was filed in the 2005, the suit is not hit by limitation as only 11 years, and not 12 years would have expired, by the time of filing of the suit in the Village Council Court, Bawngkawn. In any event, the possession of the suit land became adverse to the owner, i.e., the present respondent, only after receipt of the letter dated 30.09.2005 issued by the appellant in reply to the respondent's letter dated 24.08.2005. There is nothing to show that the appellant was in adverse possession of the suit land, vis-a-vis the present respondent prior to the letter dated 24.08.2005 issued by the respondent or at best from June 2002, as the advance payment of rent seems to have been paid till the month of May 2002. 24. Smt. Lalrinpuii expired on 05.11.2005 and there is no evidence to show that she made a claim for any portion of the respondent's land at any point of time. The appellant has in his cross examination also stated that "It is a fact that the said LSC in respect of the land in question was never in the name of Smt. Lalrinpuii (L)". If the appellant was the owner of the land, on the basis of an oral agreement, due to non-repayment of a loan in the year 1992, the appellant should have made a claim for the land on the basis of the oral agreement and not on the basis of adverse possession. If the appellant was the owner of the land, on the basis of an oral agreement, due to non-repayment of a loan in the year 1992, the appellant should have made a claim for the land on the basis of the oral agreement and not on the basis of adverse possession. The appellant has however, not done the same. In any event, adverse possession can only be claimed against the true owner of the land. Also, there is nothing to show that the respondent had asked the appellant to vacate the land prior to 2005. 25. This Court, vide Order dated 18.06.2012, has formulated the following substantial question of law:- "whether the suit filed by the respondent before the Bawngkawn Village Court was barred by limitation". 26. In view of the fact that the cause of action for eviction from the suit land arose w.e.f 24.08.2005, when the respondent issued a letter to the appellant asking him to vacate the land in the event of failure to pay the rent, this Court holds that the suit filed by the respondent in the Bawngkawn Village Court is not barred by limitation. 27. In the case of Karnataka Board of Wakf v. Government of India & Ors., reported in (2004) 10 SCC 779 , the Apex Court has held in Para-11 as follows:- "11. In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearing asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (See S.M. Karim v. Bibi Sakina, Parsinni v. Sukhi and D.N. Venkatarayappa v. State of Karnataka). It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (See S.M. Karim v. Bibi Sakina, Parsinni v. Sukhi and D.N. Venkatarayappa v. State of Karnataka). Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession". 28. In T. Anjanappa & Ors. v. Somalingappa & Anr., reported in (2006) 7 SCC 570 the Apex Court has held that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession, the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. 29. The Apex Court in Tribhuvanshankar v. Amrutlal, reported in (2014) 2 SCC 788 , has referred to the decision of the Madhya Pradesh High Court in Sultan Jehan Begum v. Gul Mohd., reported in AIR 1973 MP 72 , wherein it has been held that "when a person entitled to possession does not bring a suit against the person in adverse possession within the time prescribed by law his right to possession is extinguished. From this it only follows that if the former brings a suit against the latter within the prescribed period of limitation his right will not be extinguished." 30. From this it only follows that if the former brings a suit against the latter within the prescribed period of limitation his right will not be extinguished." 30. In the present case, this Court finds that the possession of the suit property in question against the true owner i.e., the respondent became adverse only after the respondent's letter dated 24.08.2005 was not accepted by the appellant. There is no evidence that possession became adverse to the respondent prior to 24.08.2005 and just because the appellant has been living in the said land for a number of years on the basis of an unproven oral agreement executed with a person who is not a true owner of the land, cannot bring into existence, the question of adverse possession, from a date prior to 24.08.2005, when the respondent has been under a belief that rent was paid till May, 2002. 31. The FIR filed by the appellant, as well the absence of any written agreement that the money given to Smt. Lalrinpuii (L) was a loan, does not support the appellant's case that the money was a loan amount. 32. In view of the reasons stated above, the appeal is dismissed.