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2018 DIGILAW 1272 (GAU)

SIAMPHUNGA v. STATE OF MIZORAM

2018-08-29

MICHAEL ZOTHANKHUMA

body2018
JUDGMENT : MICHAEL ZOTHANKHUMA, J. 1. Heard Mrs. Dinari T. Azyu, learned counsel for the appellant as well as Mr. A.K. Rokhum, learned Addl. Advocate General for all the State respondents. 2. The appellant was the plaintiff in Title Suit No. 27/2003. The appellant has prayed for setting aside the Judgment & Order dated 07.12.2011, passed by the learned Senior Civil Judge - I, Aizawl, dismissing the Title Suit No. 27/2003. 3. The appellant's case in brief is that the respondents have encroached upon the land of the plaintiff, which was originally covered by Village Council Pass dated 25.11.1973, issued by the President of Luangmual Village Council. 4. The appellant's counsel submits that the appellant was the original owner of the land covered by Village Council Pass dated 25.11.1973 and the said land was divided into 12 plots of land and converted to 12 House Passes, which are as follows: Sl. No. Plot No. H. Pass No. Area Name of the Pass Holder 1. 1 349 of 1995 900 Sq.m Lalrinliana Colney 2. 2 102 of 1996 1200 " Siamphunga 3. 3 103 of 1996 1000 " Thanseii 4. 4 353 of 1995 750 " Laldinpuii 5. 5 104 of 1996 760 " Vanlalhruaia 6. 6 352 of 1995 975 " Lalbiakmawia 7. 7 105 of 1976 760 " Lalrintluanga 8. 8 351 of 1995 1328 " Lalengmawii 9. 9 350 of 1995 990 " Lalhmingmawii 10. 10 101 of 1996 514 " Lalnuntluangi 11. 11 354 of 1995 1065 " Lalhruaia 12. 12 106 of 1996 1212 " Lalrammawia 5. The appellant's counsel submits the owners of the 12 plots of land covered by the House Passes thereafter tried to construct buildings on the said land. However, they were obstructed by the respondents, who had started burying dead bodies on their lands and also constructed a huge water tank. The appellant's counsel also submits that the respondents land covered by DPL No. 85/1977 is adjacent to the appellant's land and there is no overlapping of the respondents land with the appellant's land. The appellant herein had however, already constructed his house within the land, at the time of it being covered by the Village Council Pass. The appellant thereafter applied for conversion of House Pass into Land Settlement Certificate and the application is still pending before the Government. The appellant herein had however, already constructed his house within the land, at the time of it being covered by the Village Council Pass. The appellant thereafter applied for conversion of House Pass into Land Settlement Certificate and the application is still pending before the Government. As the House Pass owners were not allowed to construct their buildings on their land, which had been encroached by the respondents, the appellant Siamphunga filed Title Suit No. 27/2003, praying for a decree, declaring that the Pass issued by the Village Council in favor of the plaintiff/appellant was valid and the conversion of the Village Council Pass into 12 House Passes by the Revenue Department was also valid. The appellant also prayed for a decree to convert the 12 House Passes into Land Settlement Certificates. The appellant also prayed that the water pipes and the bodies buried on the appellant's land should be removed and that the respondents should be restricted from interfering with the peaceful possession of the land covered by the 12 House Passes. A prayer for payment of compensation of Rs. 1 lakh was also made. 6. The Court of the learned Senior Civil Judge - I, Aizawl thereafter framed 4 (four) issues in Title Suit No. 27/2003. However, the Trial Court discussed eight issues and vide Judgment & Order dated 07.12.2011 dismissed the Suit on the ground that the Suit was not maintainable and that it had been filed beyond the limitation period. The learned Trial Court also held that the appellant did not have the locus standi to make any prayer for a decree in respect of the other 11 House Pass holders, as they were not parties to the case. Further, those 11 House Pass owners did not give any power of attorney or authorization to the appellant to act on their behalf. 7. The learned counsel for the appellant submits that the fact that the respondents are the owners of the adjacent land, covered by DPL No. 85/1977 is not disputed by the appellant, inasmuch as, the boundary description given in the DPL No. 85/1977 states that the boundary line running from Pillar No. 28 to 29 and from 29 up to Pillar No. 1 meets the boundary line and runs along the appellant's Cattle Farm boundary. She also submits that the learned Trial Court has erroneously taken the cause of action to have arisen in the year 1977, i.e., at the time when the DPL No. 85/1977 was issued. The evidence having shown that the burial of dead bodies by the respondents having taken place in the land covered by the Village Council Pass dated 25.11.1973 in the year 1993 and as the water tank started functioning in 1977, the cause of action first arose only in the year 1993. Thus, the Title Suit, which was filed in 2003, could not be said to have been filed beyond the limitation period of 12 years, as Article 65 of the Schedule to the Limitation Act, 1963 provides 12 years, as the limitation period for filing of a Suit in respect of an immovable property. 8. Mr. A.K. Rokhum, learned Addl. Advocate General for the State respondents submits that the Village Council Pass dated 25.11.1973 is a void document, as the Village Council of Luangmual did not have any authority/competence to allot land, in view of the bar placed upon the Village Councils vide Executive (REV) Order No. 28/1971 issued by the Revenue Officer, Mizo District Council, Executive Order No. 3/1972 issued by the Secretary, Executive Committee, Mizo District Council and letter dated July 1975 issued by the Director, Settlement & Land Records, Mizoram. The learned Addl. Advocate General also submits that the validity of the House Passes was only for a period of 2 years and as such, the 12 House Passes that were issued in the year 1995 & 1996, which includes the House Pass of the appellant herein, are deemed to be automatically cancelled, as a House has to be built within the land covered by the House Pass within 2 years from the date of receipt of the Pass by the Pass holder. However, the said buildings were never constructed by the House Pass Holders. 9. The learned Addl. Advocate General also submits that the evidence of the Secretary of the Luangmual Village Council that permission had been given to them by the Government for allotting land in 1973 is not corroborated by any document. Accordingly, the said evidence cannot be said to be admissible in the Court. He therefore prays that the present appeal should be dismissed. 10. I have heard the learned counsels for the parties. 11. Accordingly, the said evidence cannot be said to be admissible in the Court. He therefore prays that the present appeal should be dismissed. 10. I have heard the learned counsels for the parties. 11. The Executive (REV) Order No. 28/1971 issued by the Revenue Officer, Mizo District Council, Executive Order No. 3/1972 issued by the Secretary, Executive Committee, Mizo District Council and letter dated July 1975, issued by the Director, Settlement & Land Records, Mizoram are reproduced below: "EXECUTIVE (REV) ORDER NO. 28 OF 1971 Under Section 3 (1) of the Lushai Hills District (House Sites) Act, 1953 as amended the Executive Committee of the Mizo District Council is pleased to declare that all lands within the jurisdiction of the Village Councils of Luangmual, Tanhril and Sakawrtuichhun shall hence forth be "Protected Area" within the meaning of the said Act. No allotment of land for residence, trade, Agricultural lands or other purposes within the said Area shall be made by the Village Councils without previous sanction of the Executive Committee of the Mizo District Council. This order shall not bar the Village Councils from distributing ordinary jhum lands for a year within their respective jurisdictions." "EXECUTIVE ORDER NO. 3 OF 1972 It had been noticed, that the Luangmual Village Council has allotted house site to numerous people to widen their council area without the permission of the District Council. Moreover, it is also noticed that house and garden sites are also allotted without the approval of the Executive Member, i.e. Agriculture. Therefore, the Executive Committee hereby cancelled all house and garden sites allotted and no individual shall take any steps for the development of the site. The Village Council, Luangmual shall inform all the illegally allotted Pass holders that the Pass is cancelled, and also submit the names and other particulars of the Pass holders to the undersigned immediately." "Letter dated July 1975 To, The Village Council President Luangmual/Tanhril/Sakawrtuichhun It has come to our knowledge that against Mizo District Council Executive (Rev) Order No. 28 of 1971, you have continued to issue Paddy Fields and House Passes from January, 1972. All Passes that you have issued from 1st January, 1972 onwards are therefore considered invalid. Henceforth, you are directed as Village Councils to refrain from issuing Passes. You are also directed to submit a list of Passes issued by you after 1st January, 1972 to my office at the earliest. All Passes that you have issued from 1st January, 1972 onwards are therefore considered invalid. Henceforth, you are directed as Village Councils to refrain from issuing Passes. You are also directed to submit a list of Passes issued by you after 1st January, 1972 to my office at the earliest. I have also attached a copy of Executive Order No. 28 of 1971. This Order will be upheld until further order." 12. A reading of the above Orders and letter clearly show that the Luangmual Village Council did not have the authority or competence to allot land subsequent to 23.12.1971. Accordingly, the allotment of land vide Village Council Pass issued to the appellant on 25.11.1973 cannot be said to be a valid Land Pass and it will have to be deemed to be a void/invalid Land Pass. Though the Secretary of Luangmual Village Council has stated in his evidence that the Luangmual Village Council had been given permission by the Government in the year 1973, allowing them to allot land, the said statement made by the Secretary of Luangmual Village Council is not supported or corroborated by any material particulars. No document has been submitted to prove the above statement. Accordingly, the said statement, which is not backed up by material evidence is not acceptable to this Court and accordingly, the validity of the Village Council Pass dated 25.11.1973 cannot be said to be proved. 13. The State respondents have however issued House Pass No. 102/1996 to the appellant herein and 11 other House Passes in the names of 11 other persons from the land of the appellant covered by the appellant's Village Council Pass. The above gives rise to an inference that the respondents had accepted the erstwhile Village Council Pass to be a valid Pass. Be that as it may, only the appellant's case is in issue in this case. Accordingly, the appellant's House Pass would have to be considered to be valid as on the date the same was issued by the State Government. 14. The Terms and Conditions of the House Pass issued to the appellant is reproduced below: "1. This Pass is valid for (two) 2 years only. A habitable house should be built within 2 years (from the date of receipt of the Pass) and if a house is not built within that period the Pass cannot be converted to LSC. 2. The Terms and Conditions of the House Pass issued to the appellant is reproduced below: "1. This Pass is valid for (two) 2 years only. A habitable house should be built within 2 years (from the date of receipt of the Pass) and if a house is not built within that period the Pass cannot be converted to LSC. 2. Stone pillar to demarcate the boundary, Notice Board displaying Plot No., Pass No. And area should be erected within 30 days from the date of receipt of the Pass. 3. The Pass holder should intimate the Director LR&S Mizoram prior to building a house. 4. The land should not be sold either partially or wholly without the prior permission of the Govt. 5. The Pass holder is not the owner of the land 6. A space of 1 meter should be left on either side of the house from the boundary; the housing will include toilet, water tank, pig sty, chicken pen, urinal etc. 7. The house Pass can be cancelled or altered if the land is used for illegal activities or if the govt. feels that the land can be better utilized for public. 8. The Pass can be cancelled if the Pass holder does not abide by the order of the govt." The above Terms and Conditions would go to show the House Pass is valid for 2 years only and a habitable House should be built within 2 years from the date of receipt of the Pass by the Pass Holder. There is no specific particulars given in the Plaint with regard to the date on which the appellant had attempted to construct a House within his House Pass. However, the Plaint at para No. 2 states that the appellant had constructed a House and started living in the said land when the land had been allotted to him by the Luangmual Village Council. In that context, it cannot be stated that the appellant did not construct a House on his land as the same is stated in his evidence given in the Trial Court. However, the question remains whether the appellant had built his house on the land covered by House Pass No. 102/1996. 15. In that context, it cannot be stated that the appellant did not construct a House on his land as the same is stated in his evidence given in the Trial Court. However, the question remains whether the appellant had built his house on the land covered by House Pass No. 102/1996. 15. On a perusal of the impugned Judgment & Order dated 07.12.2011, passed in Title Suit No. 27/2003, this Court finds that the following 4 issues had been framed by the Trial Court vide order dated 06.03.2007 :- 1. Whether the present suit is maintainable in its present form and style? 2. Whether the suit is barred by the principle of limitation, doctrine of estoppel and acquiescence? 3. Whether the passes of the plaintiffs overlap the Pass No. DPL 85 of 1977 belonging to the defendant No. 1-3? 4. Whether the plaintiff is entitled to the relief claimed by him. If so, to what extent and who is liable.? The learned Trial Court, while relying upon the judgments of the Apex Court, which states that affidavits without verification suffers from the mischief of lack of proper verification and are accordingly not admissible in evidence, has held that the Suit was not maintainable. However, on perusal of the Plaint, it is seen that there is a verification of the Plaint in the last page of the Plaint. 16. The learned Trial Court also held that the cause of action had arisen in favor of the appellant and that he had the locus standi to file the Suit. However, the appellant/plaintiff did not have the locus standi to file the Suit in respect of the other 11 House Pass owners, as no power of attorney or authorization had been given to the appellant to act on their behalf. Further, none of the other 11 Pass Holders were made parties in the Title Suit. The learned Trial Court thereafter held that the Title Suit could not be decided in respect of the lands involving the 11 other House Passes as they were not parties to the case. Accordingly, this Court does not find any infirmity with the findings of the learned Trial Court on this issue. 17. The learned Trial Court thereafter held that the Title Suit could not be decided in respect of the lands involving the 11 other House Passes as they were not parties to the case. Accordingly, this Court does not find any infirmity with the findings of the learned Trial Court on this issue. 17. With regard to whether the Title Suit was hit by limitation, the learned Trial Court held that, as the date when the cause of action had arisen had not been mentioned by the appellant in his Plaint, the cause of action was to be counted from the issuance of the DPL No. 85/1977, which was 09.05.1977. As the Suit was filed only in the year 2003, i.e., beyond 12 years from the date of issue of DPL No.85/1977, the learned Trial Court held that the suit was hit by limitation. In this respect, this Court will have to see when the encroachments over the land of the appellant took place to find out when the cause of action arose, as the appellant's case is that there is no over lapping of the appellant's land with the land covered by DPL No. 85/1977. It may be mentioned that the Limitation Act, 1963 is applicable in the State of Mizoram. The evidence of the Assistant Jailer (Defendant Witness) is to the effect that "At the time of my transfer in 1993, we had buried 2 deceased people. For 7 years no one ever claimed the burial ground belongs to them." Thus, with regard to the issue of whether the suit was filed beyond the limitation period, this Court will have to rely upon the contents of the Plaint. The written statement of the respondent Nos. 1 to 3 is to the effect that the water tank started functioning since 05.02.1997. The above facts do not show the exact date or time when the cause of action had arisen or when the encroachment of the appellant's land had become adverse to the appellant. However, para 6 and 9 of the Plaint states as follows: "6. Further, during the last month the I.G.Prisons and his men started construction of water tank and pipe line and a building within the lands covered under the passes 350/95, 351/95, 101/96 & 104/96." "9. However, para 6 and 9 of the Plaint states as follows: "6. Further, during the last month the I.G.Prisons and his men started construction of water tank and pipe line and a building within the lands covered under the passes 350/95, 351/95, 101/96 & 104/96." "9. Further, the defendant no.2 and the Jail authorities had also buried dead bodies of persons within the plaintiff's land despite the request made by him to the Jail authorities not to do so." The appellant's House Pass No. 102/1996 not being encroached upon as per para 6 of the Plaint, the appellant cannot be said to have any cause of action against the respondents, in respect of the construction of the water tank, pipe line etc. The only issue is with regard to whether/when the dead bodies were buried on the appellant's land. This aspect has to be clarified. The date of issuance of the DPL No. 85/1977 cannot be the date when the appellant's cause of action arose, as he does not deny the validity or dispute the area covered by DPL No. 85/1977. The appellant's only case is that the respondents have encroached upon his land, which is beyond the area of DPL No. 85/1977. There is no specific averment made or evidence adduced by the appellant with regard to whether there was any burial of dead bodies in the land covered by House Pass No. 102/1996. A general statement stating that dead bodies were buried does not prove that the same were buried on the appellant's land. As such, there cannot be a cause of action with regard to encroachment, on the ground of burial of dead bodies, if the same are not buried on the appellant's land. 18. With regard to the prayer of the appellant for conversion of his House Pass into Land Settlement Certificate, this Court does not find any infirmity with the finding of the learned Trial Court as the said question would have to be decided by the State Government. 18. With regard to the prayer of the appellant for conversion of his House Pass into Land Settlement Certificate, this Court does not find any infirmity with the finding of the learned Trial Court as the said question would have to be decided by the State Government. With regard to the finding of the learned Trial Court that the appellant did not have the locus standi to file the suit in respect of the 11 other House Pass holders, this Court finds no infirmity in the said finding or decision of the learned Trial Court, as no power of attorney or authorization has been given by the 11 other House Pass holders to the appellant herein to sue on their behalf. 19. With regard to whether there is any overlapping of the land covered by the respondents DPL No. 85/1977 and the House Pass of the appellant, this Court finds that the name of the Cattle Farm owner, given in the boundary description in the DPL No. 85/1977 is Pu Siana, whereas the name of the appellant herein is "Siamphunga". There is nothing to show that "Pu Siana" and "Siamphunga" are one and the same person. Thus, the boundary description given in the DPL No. 85/1977 does not prove that the respondents land and the appellant's land are adjacent to one another. 20. Thus, in view of the above facts, the appellant cannot claim to be the owner of the land that was initially covered by Village Council Pass dated 25.11.1973, as the same has been divided/bifurcated into twelve House Passes and mutated in the names of 12 persons, one of them being the appellant. The appellant can claim to be the owner of the land covered by House Pass No. 102/1996 only. The pleadings show that there is no construction of water tank, pipeline etc., on the appellant's land covered by House Pass No. 102/1996. There is no averment or evidence adduced by the appellant to the effect that dead bodies had been buried by the respondents in the land covered by House Pass No. 102/1996. Further, it is the appellant's own stand that there is no overlapping of the appellant's land covered by House Pass No. 102/1996 with the respondents land, as per the boundary description given in the respondents DPL No. 85/1977. Further, it is the appellant's own stand that there is no overlapping of the appellant's land covered by House Pass No. 102/1996 with the respondents land, as per the boundary description given in the respondents DPL No. 85/1977. Thus, in view of the above, this Court finds that no cause of action had arisen for the appellant to have filed the Title Suit. However, the appellant has taken the stand that a house had been built by him in the land covered by the Village Council Pass No. 25/11/1973. In order to fulfill the terms and conditions of the House Pass No. 102/1996, the appellant would have to satisfy the Court as to whether the said house that had been built by him and which has allegedly been demolished, was built on the House Pass No. 102/1996. It is settled law that parties cannot make submissions beyond their pleadings. The appellant has not made any pleading or adduced any evidence that he had built a habitable house on the land covered by House Pass no: 102/1996. Accordingly, there was no occasion for the Ld. Trial Court to decide whether the appellant had constructed a house on the land covered by House Pass No. 102/1996 within the stipulated period and during the validity period of the House Pass. Accordingly, this Court finds no ground to interfere with the impugned Judgment & Order dated 07.12.2011, passed by the learned Senior Civil Judge - I, Aizawl, in Title Suit No. 27/2003. The Appeal is accordingly dismissed. Send back the LCRs.