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2018 DIGILAW 1540 (GAU)

LALMUANPUIA CHAWNGTHU v. REMCHHUNGA CHAWNGTHU

2018-10-12

MICHAEL ZOTHANKHUMA

body2018
JUDGMENT : MICHAEL ZOTHANKHUMA, J. 1. Heard Mr. C. Lalramzauva, learned senior counsel assisted by Ms. Vanlalhriati, learned counsel for the appellants. Also heard Mr. Zoramchhana, learned counsel for the respondent No. 1 and cross objector. Mr. Samuel Vanlalhriata Chhangte, appears for respondent Nos. 2 to 5. 2. The appellants, who were the plaintiffs, have challenged the Judgment & Order dated 24.04.2016, passed by the Senior Civil Judge, Lunglei, by which Declaratory Suit No. 3/2012 was dismissed on the ground that the suit was barred by limitation and lacked merit. 3. The appellants case is that the original owner of the suit land covered by LSC No. 504/1985 & 505/1985 was Mr. C. Patea (L). Mr. C. Patea had 9 (nine) children. The appellant No. 1 is the son of Chawngchhuanliana, who in turn was the youngest son of C. Patea. The appellant No. 2 is the youngest daughter of C. Patea. The respondent No. 1 is the third youngest son of C. Patea. The respondent Nos. 2 to 5 are the State respondents. 4. The appellants counsel submits that during the lifetime of C. Patea, the family of Chawngchhuanliana (youngest son of C. Patea) and Biakvela (second youngest son of Mr. C. Patea (L)), all lived in the suit property covered by LSC No. 504/1985 & 505/1985, along with C. Patea. At that time, the respondent No. 1 was living separately with his family in a separate house as he was indang. Indang means to live in a separate house. C. Patea died on 16.09.1989. 5. That on 29.06.2010, the father of the appellant No. 1, i.e., Chawngchhuanliana and the second youngest son of C. Patea (L), Biakvela received a notice asking them to vacate/leave the house covered by the suit property. The Notice dated 29.06.2010 was issued by the respondent No. 1. On enquiry, the appellants came to learn that after the death of C. Patea on 16.09.1989, the land and buildings covered by LSC No. 504/1985 & 505/1985 had been mutated by the Government into the name of the respondent No. 1 on 30.11.1989. Chawgchhuanliana (youngest son of C. Patea(L)) expired on 15.03.2012. The appellant No. 1 was thereafter verbally told to vacate the suit land. Chawgchhuanliana (youngest son of C. Patea(L)) expired on 15.03.2012. The appellant No. 1 was thereafter verbally told to vacate the suit land. Being aggrieved, the appellants filed the Declaratory Suit No. 3/2012 on 26.06.2012, praying for a declaration that the mutation of the LSC No. 504/1985 & 505/1985 in the name of the respondent No. 1 by the Government, should be declared as illegal, null and void. 6. The Court of the Senior Civil Judge, after taking the evidence of the parties dismissed Declaratory Suit No. 3/2012, vide Judgment & Order dated 25.04.2016, by holding that the suit was barred by the law of limitation and that it lacked merit. 7. The appellants counsel submits that the cause of action for filing the suit arose only when the notice for eviction from the house was issued to them on 29.06.2010 and when they came to know of the illegal mutation of the suit land of Mr. C. Patea (L) in the name of the respondent No. 1 on 15.03.2012. Accordingly, the appellants having filed the Declaratory Suit No. 3/2012, in the month of June, 2012, the suit was not hit by the law of limitation. He further submits that the learned Trial Court had dismissed the suit under Article 58 of the Schedule to the Limitation Act, 1963, while in fact, the suit should have been considered in consonance with Article 59 of the Schedule. He also submits that the appellant No. 1 being the youngest son of the C. Patea, i.e., Chawngchhuanliana, who died on 15.03.2012, the inheritance to the property in question would have go to the youngest son as per the Mizo Customary Law. He thus submits that the learned Trial Court erred in dismissing the suit on grounds of limitation and lack of merit. He, accordingly prays for setting aside the impugned Judgment & Order dated 25.04.2016, passed by the Court of the Senior Civil Judge, Lunglei in Declaratory Suit No. 3/2012 and for remanding the matter back to the learned Trial Court to decide the issues afresh. 8. Mr. C. Zoramchhana, learned counsel for the respondent No. 1 submits that the LSC Nos. He, accordingly prays for setting aside the impugned Judgment & Order dated 25.04.2016, passed by the Court of the Senior Civil Judge, Lunglei in Declaratory Suit No. 3/2012 and for remanding the matter back to the learned Trial Court to decide the issues afresh. 8. Mr. C. Zoramchhana, learned counsel for the respondent No. 1 submits that the LSC Nos. 504/1985 and 505/1985, which were in the name of his father, namely C. Patea, were mutated in the name of the respondent No. 1, on the basis of a Heirship Certificate issued in favour of the respondent No. 1, as per information received by him. He further submits that the Heirship Certificate was issued on the basis of a Will executed by Mr. C.Patea, whereby the properties in question were given to the respondent No. 1. He also submits that as the appellants had filed a Declaratory Suit, the learned Trial Court did not commit any error in dismissing the suit on grounds of limitation, in view of Article 58 of the Schedule to the Limitation Act, 1963. He further submits that as notice under Section 80 of the CPC was not served upon the State respondents prior to filing the suit, the suit has to be dismissed for non-compliance of Section 80 CPC. 9. The counsel for the respondent No. 1 has relied upon the Judgment of the Apex Court in the case of Vasant Ramchandra Deshpande -vs- State of Maharashtra & Ors reported in, (1997) 11 SCC 305 and the Judgment of the Division Bench of this Court in Premier Enterprises and Others -vs- The State of Meghalaya and Ors reported in, (1991) 2 GauLR 360 . 10. I have heard the learned counsels for the parties. 11. The issue that has to be decided in this appeal is whether the Declaratory Suit No. 3/2012 was barred by the law of limitation. Secondly, whether the Declaratory Suit was maintainable, as no notice under Section 80 CPC had been issued by the appellants/plaintiffs prior to filing the Declaratory Suit. Thirdly, whether the suit property could have been inherited by the respondent No. 1 as per the Mizo Customary Law, or by way of a Will. 12. The appellant's prayer in the Declaratory Suit No. 3/2012 is as follows:- (i) For a decree in the form of declaration(s) in favour of the Plaintiffs and against the Defendants. Thirdly, whether the suit property could have been inherited by the respondent No. 1 as per the Mizo Customary Law, or by way of a Will. 12. The appellant's prayer in the Declaratory Suit No. 3/2012 is as follows:- (i) For a decree in the form of declaration(s) in favour of the Plaintiffs and against the Defendants. (ii) For a declaration that the mutation of LSCs No. 504 & 505 of 1985 belonging to C. Patea (L) in the name of Remchhunga Chawngthu (Defendant No. 1) by Proforma Defendant No. 5 vide Order Memo No. Pex/5-6/89/193-96 dated 13/11/89 as illegal, null and void due to want of entitlement and authority since the same was done/executed without the knowledge, consent or approval of the other offspring’s of C. Patea (L). (iii) For passing an interim injunction order suspending the operation of LSCs No. 504 & 505 of 1985 in its present form. (iv) For any other relief(s)/Declaration(s) as deem fit and proper. 13. Article 58 & 59 of the Schedule to the Limitation Act, 1963 states as follows:- "PART III - SUITS RELATING TO DECLARATIONS 56. To declare the forgery of an Three years When the issue or registration instrument issued or becomes known to the plaintiff. registered. 57. To obtain a declaration that an Three years When the alleged adoption becomes alleged adoption is invalid, or known to the plaintiff. never, in fact, took place. 58. To obtain any other Three years When the right to sue first accrues. declaration. PART IV - SUITS RELATING TO DECREES AND INSTRUMENTS 59. To cancel or set aside an Three years When the facts entitling the plaintiff instrument or decree or for to have the instrument or decree the rescission of a contract. cancelled or set aside or the contract rescinded first become known to him." 14. A perusal of the prayer made by the appellants/plaintiffs in the Declaratory Suit shows that the suit is a Declaratory Suit and as such, Article 58 of the Schedule to the Limitation Act, 1963 would be applicable to the case in hand. However, the question that arises is whether the limitation would start running from the date when the appellant came to know of the mutation of the suit land in the name of the respondent No. 1, or from the date when the mutation had been made in the land records. 15. However, the question that arises is whether the limitation would start running from the date when the appellant came to know of the mutation of the suit land in the name of the respondent No. 1, or from the date when the mutation had been made in the land records. 15. The original owner of the land was C. Patea, who died on 16.09.1989. The respondent No. 1 mutated the suit land in his name on 30.11.1989, on the basis of an alleged Will executed by his father C. Patea. There is no Will produced by the respondent No. 1 in the Trial Court or in this Court. Further, there is no averment made by the respondent No. 1 that the alleged Will executed by C. Patea has been probated by any Court. Further, no documents have been produced showing the Probate of the alleged Will or that any notice was issued to the other children of C. Patea, prior to the Probate of the alleged Will. This gives rise to a presumption that no WILL was executed by C. Patea. 16. The stand of the appellant that they became aware of the mutation of the suit land in the name of the respondent No. 1 only after an Eviction Notice was issued to them on 29.06.2010 has not been denied by the respondent No. 1. The only ground taken by the counsel for the respondent No. 1, in taking the stand that the suit was hit by limitation is that as per Article 58 to the Schedule of the Limitation Act, 1963, the right to sue accrued to the appellants/plaintiffs when the suit land was mutated in the name of the respondent No. 1 on 30.11.1989. Thus, the suit had to be filed within 3 years from 30.11.1989, i.e., by 29.11.1992. However, as the suit was filed only on 26.06.2012, the suit was barred by limitation as it had been filed beyond 3 years after the right to sue first accrued. 17. In the case of Rameshwar Dubey & Ors Vs. Masomat Asha Kaur & Ors reported in, (1996) 11 SCC 160 , the Apex Court has held in para 4 as follows:- "4. It is contended by the appellants that whatever may be the finding regarding the sale deed of 1966, there cannot be any second fraud in the case of the second sale deed. Masomat Asha Kaur & Ors reported in, (1996) 11 SCC 160 , the Apex Court has held in para 4 as follows:- "4. It is contended by the appellants that whatever may be the finding regarding the sale deed of 1966, there cannot be any second fraud in the case of the second sale deed. The suit ought to have been filed under Article 58 of the Schedule to the Act and not under Article 64. We find no force in the contention. In view of the finding recorded by the courts below as a finding of fact that a fraud was played upon her, the fraud unravels the entire transaction to be a void document. Therefore, the limitation starts running from the date when the cause of action had arisen, viz., when dispossession was sought to be made. It is seen that the first respondent was sought to be dispossessed from her land in 1973. The sale deed came to be executed within three years from the date. Under these circumstances, since she remained in possession till that date, there is no need to file a suit under Article 59 of the Schedule to the Act. Therefore, the suit was rightly filed within three years under Article 58 of the Schedule to the Act and the courts below decreed it and the High Court upheld the same. Accordingly, it does not warrant interference." 18. In the case of MD. Noorul Hoda Vs. Bibi Raifunnisa & Ors reported in, (1996) 7 SCC 767 , the Apex Court has held:- "There is no dispute that Article 59 would apply to set aside the instrument, decree or contract between the inter se parties. The question is whether in case of person claiming title through the party to the decree or instrument or having knowledge of the instrument or decree or contract and seeking to avoid the decree by a specific declaration, whether Article 59 gets attracted? As stated earlier, Article 59 is a general provision. In a suit to set aside or cancel an instrument, a contract or a decree on the ground of fraud, Article 59 is attracted. The starting point of limitation is the date of knowledge of the alleged fraud. As stated earlier, Article 59 is a general provision. In a suit to set aside or cancel an instrument, a contract or a decree on the ground of fraud, Article 59 is attracted. The starting point of limitation is the date of knowledge of the alleged fraud. When the plaintiff seeks to establish his title to the property which cannot be established without avoiding the decree or an instrument that stands as an insurmountable obstacle in his way which otherwise binds him, though not a party, the plaintiff necessarily has to seek a declaration and have that decree, instrument or contract cancelled or set aside or rescinded." A reading of the above 2 (two) judgments of the Apex Court shows that the limitation starts running from the date when dispossession was sought to be made, i.e., the date when the cause of action had arisen. In the present case, the parties being governed by the Mizo Customary Law, inheritance should devolve upon the children on the death of the owner of the property as per the Mizo Customary Law. However, the Mizo Customary Law does not seem to have been followed in this case, and the same has also not been clarified by the counsel for the respondent No. 1, when he states that the land was inherited by the respondent No. 1 on the basis of a Will executed by the Late C. Patea. However, as stated above, there is nothing on record to show that the respondent No. 1 has inherited a suit land on the basis of a Will, which if in existence, has also not been probated. 19. In the case of Vasant Ramchandara Deshpande Vs. State of Maharashtra & Ors reported in, (1997) 11 SCC 305 , the Apex Court has held at para 2 as follows:- "2. This appeal by special leave arises from the judgment and order made on 4-9-1996 of the Maharashtra Administrative Tribunal, Nagpur Bench in Transfer Application No. 532 of 1992 (Reg. Civil Suit No. 963 of 1980). The respondent-Government compulsorily retired the appellant from service, in exercise of its power, by order dated 29-12-1973 giving three months' notice to the appellant. It became effective from 28- 10-1974. The suit was filed after issuance of the notice under Section 80, Code of Civil Procedure, 1908 on 28-7-1980. Civil Suit No. 963 of 1980). The respondent-Government compulsorily retired the appellant from service, in exercise of its power, by order dated 29-12-1973 giving three months' notice to the appellant. It became effective from 28- 10-1974. The suit was filed after issuance of the notice under Section 80, Code of Civil Procedure, 1908 on 28-7-1980. Article 58 of the First Schedule to the Limitation Act, 1963 envisages limitation period for filing suit for any other declaration, i.e., three years from the date when the right to sue first accrues. It would, therefore, be seen that in a suit for declaration that the order of compulsory retirement was invalid under Article 311 or any other law, comes under Article 58 of the Schedule to the Limitation Act. Thus the right to sue accrued when the order of compulsory retirement was made on 29-12-1973 and it became effective from 28-10-1974. That being the date on which the right to seek such declaration accrued and became effective in respect of the appellant for the first time, the period of limitation would start from that date. Even after excluding the time required for issuance of the notice under Section 80, the suit is barred by limitation. The Tribunal, therefore, rightly dismissed the petition on the ground that it was time-barred. Under these circumstances, we do not find any error of law warranting interference." It is settled law that the ratio of any decision must be understood in the background of the facts of that case. A case is only an authority for what it decides and not what logically follows from it. A little difference in facts may make a lot of difference in the precedential value of a decision. The facts of the above case being different from the facts of this case, the above judgment is not applicable to the facts of this case. 20. In the case of M/S Premier Enterprises, New Hills, Jawai, Meghalaya & Ors Vs. State of Meghalaya & Ors reported in,1994 2 GauLR 360, the Division Bench of this Court held that dismissal of a suit as not maintainable implies the rejection of the plaint. On going through the judgment of this Court in 1991 2 GLR 360, this Court finds that the decision made in the light of the facts in the above case is not applicable to the case in hand. 21. On going through the judgment of this Court in 1991 2 GLR 360, this Court finds that the decision made in the light of the facts in the above case is not applicable to the case in hand. 21. In view of the above reasons, this Court is of the view that the starting point for limitation to start running would be from the date of knowledge of the mutation of the suit land in the name of the respondent No. 1, which was some time in the year 2010. Accordingly, the appellants having filed a Declaratory Suit in the year 2012, the suit was not hit by limitation. 22. With regard to the question as to whether the Declaratory Suit was maintainable or not in view of no notice being issued by the appellants to the State respondents under Section 80 CPC prior to filing of the suit, the Apex Court in the case of State of A.P & Ors Vs. M/s Pioneer Builder, A.P. reported in, (2007) AIR SC 113, has held that the plea of want of notice under Section 80 CPC not having been raised by the Government in their written statement or additional written statement in the suit, the defect is deemed to have been waived and accordingly, it was not open to raise a fresh issue as to the maintainability of the suit in an appeal. The Apex Court in State of A.P & Ors Vs. M/s Pioneer Builder, A.P (supra) has held at para 18 as follows:- "Accordingly, we decline to interfere with the finding recorded by the High Court on this aspect of the matter. The High Court has held that having participated in the original proceedings, it was not now open to the State to raise a fresh issue as to the maintainability of the suit, in view of waiving the defect at the earliest point of time. The High Court has also observed that knowing fully well about non-issue of notice under Section 80 CPC the State had not raised such a plea in the written statement or additional written statement filed in the suit, and therefore, deemed to have waived the objection. The High Court has also observed that knowing fully well about non-issue of notice under Section 80 CPC the State had not raised such a plea in the written statement or additional written statement filed in the suit, and therefore, deemed to have waived the objection. It goes without saying that the question whether in fact, there is waiver or not necessarily depends on facts of each case and is liable to be tried by the Court, if raised, which, as noted above, is not the case here." 23. On perusing the written statement made by the Government in the Declaratory Suit, this Court finds that no plea had been taken by the Government with regard to the defect in not filing a notice under Section 80 CPC by the appellant, prior to filing the suit. The respondent No. 1 also did not take any such plea in his written statement. Even assuming that the respondent No. 1 had taken such a plea, the same could not be said to be relevant in deciding the issue with regard to non-compliance with Section 80 CPC, as the same is relatable only with regard to the Government. Accordingly, in view of the above reasons, this Court finds that the defect in not issuing notice under Section 80 CPC, did not make the Declaratory Suit as being "not maintainable", as the said defect had been deemed to be waived by the Government. 24. The Mizo Customary Law provides for inheritance through the male line. The Mizo Customary law of inheritance explicitly excludes women, if the deceased is survived by the son. In the present case, the original owner of the property was C. Patea. On his death on 16.09.1989, the inheritance and title to the properties started to flow automatically on the legal heirs in accordance with the Mizo Customary Law. Accordingly, the suit land had to devolve upon the legal heirs as per the customary laws of succession/inheritance applicable for Mizo's in the state of Mizoram and which are protected by Article 371 G of the Constitution. The exception to the above is, when the owner of the property has made a Will. As stated earlier, the respondent No. 1 has not been able to produce the alleged Will executed by C. Patea, by which the respondent No. 1 has claimed inheritance of the properties of the Late C. Patea. The exception to the above is, when the owner of the property has made a Will. As stated earlier, the respondent No. 1 has not been able to produce the alleged Will executed by C. Patea, by which the respondent No. 1 has claimed inheritance of the properties of the Late C. Patea. Further, the respondent No. 1 has not been able to produce any document showing that the alleged Will has been probated by a competent Court. All the above clearly gives rise to an inference that the mutation of the suit land in the name of the respondent No. 1 has been done illegally, behind the back of the appellants and without their knowledge. Accordingly, this Court is of the view that the mutation of the suit land in favour of the respondent No. 1 is illegal. Thus, this Court declares that the mutation of the suit property in the name of the respondent No. 1 is null and void. The parties are given the liberty to claim the suit properties as per the Mizo Customary Law before the competent Court. Consequently, the impugned Judgment & Order dated 25.04.2016, passed by the Court of the Senior Civil Judge, Lunglei in Declaratory Suit No. 3/2012 is hereby set aside. 25. The appeal is accordingly allowed and the Cross Objection dismissed. Send back the LCR.