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2019 DIGILAW 1133 (GAU)

Ng Chiaipai v. Sh Tlacho

2019-10-17

MICHAEL ZOTHANKHUMA

body2019
JUDGMENT : Michael Zothankhuma, J. Heard Mr. J.C. Lalnunsanga, the learned counsel appears for the appellant. No one appears for the respondent, despite notice being served upon the respondent. 2. This Regular Second Appeal has been filed against the Judgment and Order dated 16.01.2018, passed by the District Council Court, Mara Autonomous District Council, Siaha in Civil Appeal No. 1/2015, by which the First Appellate Court has held that while the Appellant (divorced wife) is the legal and valid owner of the land covered by LSC No. LSC/R/Amb/32/13 of 02/09/2013, while the ownership of the residential house/building standing on the land has been held to be belonging to the respondent. This Regular Second Appeal also challenges the Judgment and Order dated 19.12.2014, passed by the Subordinate District Council Court, Siaha in Civil Suit No. 2/2013, by which the learned Trial Court has decreed that the respondent shall be entitled to continue to occupy the residential house during his lifetime, while coming to a finding that the land in question belonged to the appellant. 3. The brief facts of the case is that the appellant and the respondent/plaintiff were married in the year 1982 and they had 5 children. All the 5 children are married and have separate households, except for the youngest son, who is living with the appellant. 4. On the divorce of the parties herein, claiming title over the land and building covered by LSC No. LSC/R/Amb/32/13 of 02/09/2013, the respondent filed Civil Suit No. 2/2013 before the Sub-ordinate District Council Court, Siaha. Civil Suit No. 2/2013 was disposed of vide Judgment & Order dated 19.12.2014 by decreeing that the respondent shall be entitled to continue to occupy the building, which was constructed on the land covered by LSC No. LSC/R/Amb/32/13, during his lifetime. However, title to the land in question was held to be in favour of the appellant. The Trial Court further directed that the respondent would not alienate or dispose of the building. 5. Being aggrieved by the above Judgment & Order dated 19.12.2014, passed in Civil Suit No. 2/2013, the appellant filed Civil Appeal No. 1/2015 before the District Council Court, Siaha. As the District Council Court, Siaha did not dispose of the appeal, despite having heard the matter in the year 2015, the appellant filed CRP No. 16/2017 before this Court. 5. Being aggrieved by the above Judgment & Order dated 19.12.2014, passed in Civil Suit No. 2/2013, the appellant filed Civil Appeal No. 1/2015 before the District Council Court, Siaha. As the District Council Court, Siaha did not dispose of the appeal, despite having heard the matter in the year 2015, the appellant filed CRP No. 16/2017 before this Court. This Court, vide Judgment & Order dated 16.11.2017 disposed off CRP No. 16/2017, with a direction to the District Council Court to dispose of Civil Appeal No. 1/2015. 6. In pursuance to the Judgment & Order dated 16.11.2017 passed in CRP No. 16/2017, the District Council Court, Siaha disposed of Civil Appeal No. 1/2015 vide Judgment & Order dated 16.01.2018, by not only upholding the Judgment & Order of the Trial Court, but also modifying the same by holding that though the appellant was the owner of the land, the building belonged to the respondent. 7. The appellant has challenged the Judgment & Orders of the lower Courts below, on the ground that while it has been established that the said land in question belongs to the appellant on the basis of a gift made to the appellant by her brother, the enjoyment/occupation and ownership of the building standing on the said land has been held to be in favour of the respondent. 8. The learned counsel for the appellant submits that the granting of lifelong occupational and ownership right of the building to the respondent by the Courts below, while at the same time holding that the title to the land, on which the building stands, to the appellant, shows that the findings of the lower Courts below are not supported by any evidence. 9. The appellant's counsel thus prays for setting aside the impugned Judgments of the Courts below and submits that the learned Courts below, having come to a finding that the appellant was the owner of the land, the ownership and title to the land should include within it, the building standing upon it. 10. This Court had framed the following substantial question of law:- "Whether learned Courts below could have decreed giving occupational right to the respondent, without relying on the evidence adduced, while giving the title of the land to the appellant on the basis of evidence and whether the same could be said to be an error of law." 11. 10. This Court had framed the following substantial question of law:- "Whether learned Courts below could have decreed giving occupational right to the respondent, without relying on the evidence adduced, while giving the title of the land to the appellant on the basis of evidence and whether the same could be said to be an error of law." 11. In the case of Shri. Pachhunga v. Mrs. Zokhumi, (1989) 2 GauLR 28 (NOC), the Division Bench of this Court under Order III of the Assam High Court (Jurisdiction over District Council Courts) Order, 1954 has held that a second appeal can be treated as a first appeal and the evidence of the parties can be re-appreciated. 12. The learned Subordinate District Council Court, Mara Autonomous District Council, Siaha had framed the following issues in Civil Suit No. 2 of 2013:- "i) Whether the present suit is maintainable or not? (ii) Whether the plaintiff is entitled to occupy the present residential house? If so, on what ground and to what extent? (iii) Whether the LSC Pass issued by the concerned authority in favor or the defendant during the period of divorce of the couple can be upheld or not? (iv) Whether the present suit building was constructed out of the income of the plaintiff/defendant or not? (v) Whether the plaintiff is entitled to the relief claimed?" 13. In respect of Issue No. 1, the Trial Court held that the suit was maintainable and with regard to Issue No. 2, the Court held that the respondent was entitled to continue to occupy the residential house, on the ground that he had been allowed to do so by earlier orders of the Court and also due to the said house being constructed by the said respondent during the subsistence of his marriage with the appellant. 14. In respect of Issue No. 3, the Trial Court came to a finding that the land had been given to the couple by the brother of the appellant, Sh. Hrangchhuana and that the land Pass had been properly issued by the concerned authority in favour of the appellant. Accordingly, the Trial Court upheld the issuance of the land Pass to the appellant, i.e. LSC/R/Amb/32/13 of 02/09/2013. In respect of Issue No. 4, the Trial Court again came to a finding that the land was given to the appellant and the respondent by the brother of the appellant. Accordingly, the Trial Court upheld the issuance of the land Pass to the appellant, i.e. LSC/R/Amb/32/13 of 02/09/2013. In respect of Issue No. 4, the Trial Court again came to a finding that the land was given to the appellant and the respondent by the brother of the appellant. 15. In respect of Issue No. 5, the Trial Court came to a finding that the house had been built on the loan taken out in the name of the defendant as the defendant was a salaried person working as a primary school teacher. The Trial Court thus held that the building had been constructed out of the income of the appellant and the loan taken by the appellant. In respect of Issue No. 6, the Trial Court came to a finding that though the house had been constructed out of the income of the appellant, the respondent was entitled to occupy the house as the parties had been husband and wife earlier. 16. On a perusal of the findings given by the Trial Court, it is crystal clear that title to the land has been found to be in favour of the appellant and no challenge has been made against the same by the respondent till date. 17. In the impugned Judgment and Order dated 16.01.2018 passed by the District Council Court, Mara Autonomous District Council, Siaha in Civil Appeal No. 1/2015, the First Appellate Court held that the house site/land was acquired by way of a gift by the appellant and the land Pass was duly issued in the name of the appellant. Accordingly, the house site/land belonged to the appellant. However, due to the house being built by both the appellant and the respondent during the subsistence of their marriage, the respondent, as the head of the family was to be considered to be the owner of the family property under the customary practice of the Mara Community. The First Appellate Court thereafter held that while the land on which the house was built rightfully belonged to the appellant, the ownership of the house was given to the respondent. 18. The operative portion of the Judgment and Order dated 16.01.2018 passed in Civil Appeal No. 1/2015 is reproduced below:- "Therefore, it is held that the house-site of the disputed residential house rightfully belongs to the Appellant while the Respondent is entitled to the ownership of the house only. 18. The operative portion of the Judgment and Order dated 16.01.2018 passed in Civil Appeal No. 1/2015 is reproduced below:- "Therefore, it is held that the house-site of the disputed residential house rightfully belongs to the Appellant while the Respondent is entitled to the ownership of the house only. ORDER 1. That the Respondent, Shri K. Tlacho shall be entitled to continue to occupy the present residential house in dispute at Zero Village for as long as the building is fit to live in. 2. That in the event of the death of the Respondent or at the instance of vacation of the house dispute by the Respondent on his own free will, the right and title over the house in dispute and the LSC pass thereof shall automatically go to the Appellant. 3. That the Appellant nor the Respondent shall allenate or dispute of the house-site or the house in dispute in any manner without the consent of each other. 4. The present form and condition of the house in dispute shall not be altered by way of reconstruction, repair or renovation. No other party shall disturb or cause inconvenience to the peaceful occupation of the house by the Respondent. With this Judgment and Order, the present case is disposed of." 19. The findings of the learned Court below clearly shows that the land of the appellant was not ancestral property but had been given to the appellant by the appellant's brother and the same had been registered in the name of the appellant under Section 11 of the Mara Autonomous District Council (Land & Revenue) Act, 1963. Thus, the appellant being the legal and rightful owner of the land in question and as the house on the said land had been built out of the income and loan taken by the appellant, this Court finds that the giving of lifelong occupancy and ownership of the house to the respondent to be perverse, as the evidence does not support such a finding/decree. Further, no evidence had been adduced by the respondent in the Trial Court or the First Appellate Court to show that the customary practice of the Mara Community provided for the man of the house to become the owner of the house sans the land. Further, no evidence had been adduced by the respondent in the Trial Court or the First Appellate Court to show that the customary practice of the Mara Community provided for the man of the house to become the owner of the house sans the land. The evidence clearly reflects the fact that the appellant is the owner of the land and building in question, though the respondent had also helped in the construction of the house. The title to the land being found to be in favour of the appellant, the giving of occupational right and holding the ownership of the building in favour of the respondent is found to be perverse and unreasonable, as it sets at naught the giving of title to the land to the appellant. In the case of Maria Colaco and Another Vs. Alba Flora Herminda D Souza and Others, (2008) 5 SCC 268 , the Apex Court has held that normally in the second appeal, the High Court should not interfere on questions of fact. However, if on the scrutiny of the evidence, it is found that the finding recorded is totally perverse then the High Court can interfere in the matter as it constitutes a question of law. In the present case, this Court finds that the learned Courts below have given occupational and ownership right to the respondent in respect of the building, without there being any evidence for the learned Courts below to come to such a finding or decision. Besides the above, the grounds for giving occupational and ownership rights of the building to the respondent is basically on the ground that the appellant and respondent had been married at an earlier point of time. As the perverse findings of fact constitutes a question of law, this Court holds that the first part of the substantial question of law framed by this Court would have to be answered in the negative and the finding and decision of the lower Courts that the respondent is the owner and can occupy the building have to be held to be an error of law. 20. The findings of the Trial Court and the evidence adduced therein have clearly proved the fact that the legal and rightful owner of the land and building in question is the appellant. 20. The findings of the Trial Court and the evidence adduced therein have clearly proved the fact that the legal and rightful owner of the land and building in question is the appellant. Also, as the house had been built out of the income and loan taken by the appellant, there was no basis for the learned Courts below to have given ownership of the house to the respondent, especially as the house sits upon the land belonging to the appellant. In that view of the matter, this Court is of the view that the impugned Judgment & Order passed by the Trial Court and the First Appellate Court are perverse and are not sustainable. Accordingly, the decision of the learned Courts below holding that the appellant is the owner of the land covered by LSC/R/Amb/32/13 of 02/09/2013 is upheld and the giving of occupational and ownership rights of the building to the respondent is set aside. The appellant is thus held to be the owner of the land in question and the building standing upon it. The respondent is accordingly directed to give peaceful vacant possession of the building to the appellant immediately. Accordingly, the impugned Judgment & Order dated 16.01.2018 passed by the District Council Court, Mara Autonomous District Council in Civil Appeal No. 1/2015 and the Judgment & Order dated 19.12.2014 passed by the Sub-ordinate District Council Court, Siaha in Civil Suit No. 2/2013 are hereby set aside to the extent indicated above. The appeal is accordingly allowed. Send back the LCR.