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2019 DIGILAW 1289 (GAU)

C. Dailova v. State of Mizoram

2019-11-26

MICHAEL ZOTHANKHUMA

body2019
JUDGMENT : Michael Zothankhuma, J. Heard Mr. A.R. Malhotra, learned counsel for the appellant/plaintiff. Also heard Ms. Mary L. Khiangte, learned counsel for the respondent Nos. 1 to 4/defendant Nos. 1 to 4. Also heard Mrs. Dinary T. Azyu, learned counsel for the respondent Nos. 5 & 6/defendant Nos. 5 & 6. 2. This appeal has been filed against the impugned Judgment & Order dated 13.07.2012 passed by the Senior Civil Judge-I, Aizawl, by which Declaratory Suit No. 4/2010 has been dismissed and the counter claim of the respondent Nos. 5 & 6 has been decreed. The subject matter in issue relates to the sale of a lease-hold land covered by a land lease, which was in the name of the Secretary, IKK, ITI Veng. However, the land was sold by the IKK Republic/ITI Veng to the appellant. It should be noted that though the IKK Republic/ITI Veng and IKK, ITI Veng were one single group belonging to one Church denomination earlier, they had split into two groups sometime in December 1994. 3. The appellant's case is that the appellant purchased land from the Church denomination, namely Isua Krista Kohhran, Republic/ITI Veng, (hereinafter referred to as IKK Republic/ITI Veng) on 02.05.2000, by way of an unregistered Sale Deed. The land that had been bought was covered by a land lease bearing Registration No. DLP Misc. No. 43/1995. After selling the land, the IKK, Republic/ITI Veng surrendered the land covered by DLP Misc No. 43/1995 to the Government vide Letter dated 28.05.2000 and requested the Government to issue a Land Pass to the appellant. However, due to the objection raised by the respondent Nos. 5 & 6, who belonged to the IKK, ITI Veng, with regard to the sale of land to the appellant, a dispute arose between the IKK, Republic/ITI Veng and the IKK, ITI Veng, regarding the sale of the land to the appellant. The Government thereafter approved the conversion of the land covered by DLP Misc. No. 43/1995 to a House Site Land Settlement Certificate (LSC), in favour of the appellant on 05.02.2002 and vide Cancellation Order dated 18.02.2002 issued by the Director, Land Revenue & Settlement Department, the DLP Misc. No. 43/1995 was cancelled. Thereafter, Land Settlement Certificate (LSC) No. 104402/01/176 of 2002 was issued in respect of the land in favour of the appellant on 23.09.2004. The Land Revenue & Settlement Department, Govt. No. 43/1995 was cancelled. Thereafter, Land Settlement Certificate (LSC) No. 104402/01/176 of 2002 was issued in respect of the land in favour of the appellant on 23.09.2004. The Land Revenue & Settlement Department, Govt. of Mizoram had to eventually intervene in the dispute between the parties. A stay order Dated 19.03.2002 was also issued by the Revenue & Settlement Department directing the appellant not to carry on any further development on the suit land. Many attempts were made by the State Government to settle the matter. However, as no settlement could be reached between the parties, the Under Secretary to the Govt. of Mizoram, Revenue & Settlement Department issued Letter dated 08.01.2010 to the Director, Land Revenue & Settlement stating that the observation of the Government was that the dispute could not be settled at the Government level and accordingly, the parties were advised to approach the Civil Court. 4. Consequent to the Letter dated 08.01.2010 issued by the Under Secretary to the Govt. of Mizoram, Revenue & Settlement Department, the appellant filed Declaratory Suit No. 4/2010 in the Court of the Senior Civil Judge, Aizawl, praying for a decree declaring the appellant as the legal and lawful owner of the land covered by LSC No. 104402/01/176 of 2002, on the ground that he had purchased the same from the respondent Nos. 5 & 6 for Rs. 1.3 lakhs. The other prayer was for a decree declaring that the stay Order dated 19.03.2002 issued by the respondent No. 3 as illegal. 5. The respondent Nos. 5 & 6, who were representatives of the IKK, ITI Veng, filed a counter claim praying for a decree declaring that the appellant did not have the locus standi to file the suit and for declaring the sale deed to be null and void. The respondent Nos. 5 & 6 also prayed that the actions of the respondent Nos. 1 to 4, on the basis of the sale deed should be declared null and void. They also prayed for a decree for setting aside the approval for conversion of the DLP into a House Site LSC as given in the Letter dated 05.02.2002 and 18.02.2002. They also prayed that the DLP Misc No. 43/1995 should be declared valid and that the respondent Nos. 5 & 6 should have the right over the said property, during the lease period. They also prayed that the DLP Misc No. 43/1995 should be declared valid and that the respondent Nos. 5 & 6 should have the right over the said property, during the lease period. The further prayer was for a decree of mandatory and permanent injunction against the appellant and the respondent Nos. 1 to 4, from doing any act detrimental to the interest of respondent Nos. 5 & 6 as regards the suit property. 6. The stand of the Government was that the respondent Nos. 5 & 6 had no right to sell or dispose of the suit land and that the Government had approved the application of the appellant for conversion of the DLP Misc. No. 43/1995 into a House Pass and the eventual issue of a Land Settlement Certificate in favour of the appellant. 7. The learned Trial Court framed 5 issues, which are as follows:- 1. Whether the suit is maintainable or not. 2. Whether the Sale Deed dated 02.05.2000 executed by IKK, ITI Veng, Aizawl and the plaintiff is legally valid or not. 3. Whether the plaintiff is entitled to the relief claimed or not. If so, to what extend. 4. Whether the counter claim filed by defendants 5 and 6 is maintainable or not. 5. Whether the defendants 5 & 6 are entitled to the relief in their counter claim. If so, to what extend." 8. With regard to the 1st and 4th issues, the learned Trial Court held that the suit and the counter claim were maintainable. With regard to whether the Sale Deed dated 02.05.2000 was legally valid (issue No. 2), the Trial Court held that as the term and condition No. 4 of the Lease Deed did not permit transfer of the land by way of sale, the sale and the Sale Deed was held to be invalid. With regard to whether the appellant was entitled to the relief claimed (issue No. 3), the Trial Court held that the permission to convert DLP Misc. No. 43/1995 into House Site LSC and the issuance of the LSC to the appellant was bad in law, as the order for converting the DLP Misc. No. 43/1995 into a House Site LSC was bad in its inception and could not be sanctified by any subsequent action. Thus issue No. 3 was decided against the appellant. With regard to issue No. 5, i.e., "whether the defendant/respondent Nos. No. 43/1995 into a House Site LSC was bad in its inception and could not be sanctified by any subsequent action. Thus issue No. 3 was decided against the appellant. With regard to issue No. 5, i.e., "whether the defendant/respondent Nos. 5 & 6 were entitled to the relief claimed in the counter claim," the Trial Court held that the evidence disclosed the fact that the IKK Republic/ITI had clandestinely sold the suit land to the appellant, without the knowledge of the respondent Nos. 5 & 6, who were members of the IKK, ITI Veng. Accordingly, the plaint was dismissed, while the prayers in the counter claim were decreed. 9. The learned counsel for the appellant submits that after the pronouncement of the impugned Judgment and Order dated 13.07.2012, the appellant came to know that the two groups of the IKK, i.e., IKK Republic/ ITI Veng and IKK ITI Veng had reached an amicable settlement on 11.01.2002 and had joined together as one Unit/group, by passing a joint resolution on 11.01.2002. In the joint resolution dated 11.01.2002, it was resolved that the Land Revenue & Settlement Department should be requested to settle the matter regarding the lease land covered by DLP Misc. Pass No. 43/1995. He also submits that the joint IKK have issued various letters proving the amicable settlement of the parties and the coming together of the two IKK Units. He further submits that they resolved that the land covered by DPL Misc. No. 43/1995 should be given to the appellant as per the Letter dated 16.01.2002 issued by Upa K.C. Zoramchhana of the unified IKK. He also submits that the respondent No. 3 has issued a Show Cause Notice dated 04.04.2002 to Upa K.C. Zoramchhana of the unified IKK, asking him as to why the LSC issued in favour of the appellant should not be cancelled. In reply to the Show Cause Notice dated 04.04.2002, Upa K.C. Zoramchhana has, vide Letter dated 17.04.2002, stated that IKK Units had come together by way of a settlement and that there was no reason to cancel the LSC issued in favour of the appellant. The learned counsel thus prays that additional evidence may be taken under Order 41 Rule 27 CPC so as to bring on record the new facts, as stated above. 10. The learned counsel thus prays that additional evidence may be taken under Order 41 Rule 27 CPC so as to bring on record the new facts, as stated above. 10. The learned counsel for the appellant further submits that the objection to the sale of land to the appellant was no longer important and was no longer an issue even though the learned Trial Court has held that the surrender of the DLP Misc. No. 43/1995 to the Government had been done by the IKK Republic/ ITI Veng, as the two IKK Units had come together and reached an amicable settlement on 11.01.2002,. He accordingly submits that though the Trial Court had held that the surrender of the DLP had not been done by the lessee, the issuance of the LSC to the appellant by the Government should not have been interfered with by the learned Trial Court, due to the subsequent amicable settlement of the two Units of the IKK. He accordingly prays for setting aside the impugned Judgment and Order dated 13.07.2011, passed in DS No. 4/2010. 11. Mrs. Dinari T. Azyu, the learned counsel for the respondent Nos. 5 and 6, on the other hand, submits that the residents of the Republic and I.T.I. Veng locality of Aizawl, who were the part of "Isua Krista Kohhran Kross Sen" (a Church congregation), had been worshipping in the Unit Church of Isua Krista Kohhran at I.T.I. Veng for more than 10 years. During Christmas time in the year 1994, the Unit Church came to be divided into two units viz; IKK, ITI Veng and IKK, Republic/ITI Veng. Though the Church was divided into two units, both groups were worshipping at the Church located at ITI Veng. After the Church was divided, the two Unit Churches had separate church elders, seals, letterhead etc. After the IKK, Republic/ITI Veng was divided into two, the ITI Veng Unit approached the then Chief Minister of Mizoram and requested him to provide a plot of land for the construction of their church. Therefore, at the instance of the then Chief Minister of Mizoram, the IKK, ITI Veng was provided with a plot of land under a Land lease bearing DLP Misc. No. 43/95. 12. Therefore, at the instance of the then Chief Minister of Mizoram, the IKK, ITI Veng was provided with a plot of land under a Land lease bearing DLP Misc. No. 43/95. 12. However, without the knowledge and consent of the answering respondents, the Church leaders of the Unit Church of IKK Republic/ITI Veng, tried to sell the said plot of land covered by Pass No. DLP Misc. No. 43 of 1995. No sooner did the IKK, ITI Veng come to know about their intention, they made a newspaper publication in three daily newspapers to the effect that the respondent Nos. 5 & 6 were not going to sell the Church land and that it belonged to their Church Unit i.e., IKK, ITI Veng. However, the land covered by DPL Misc. No. 43 of 1995 was sold by the leaders of the IKK Republic/ITI Veng using a forged land pass. Upon coming to know the same, the matter was reported to the IKK Church Headquarters and a complaint was also lodged with the Revenue Department. The counsel for the respondent Nos. 5 & 6 also submit that as the unit church of IKK Republic/ITI Veng had illegally sold the said land by using a forged Pass, the IKK Church Assembly in its Executive Meeting (AEC) reprimanded the said Unit Church and also ordered them not to use their Seal etc. She also submits that the IKK, ITI Veng still have the original Land Pass in their custody and possession. She also submits that the Secretary of the unified IKK Upa. K.C. Zoramchhana has fabricated the resolutions made by the unified IKK, as the IKK, ITI Veng have never agreed to sell the suit land or surrender the same to the Government at any time. Also, no resolution was passed by the unified IKK that the suit land should be allotted to the appellant. 13. I have heard the learned counsels for the parties. 14. The fact that the unified IKK have never resolved that the suit land should be transferred/allotted in the name of the appellant in the year 2000 is clear from the Letter dated 08.01.2010 issued by the Under Secretary to the Govt. of Mizoram, Revenue & Settlement Department, which states the Government observation that the dispute cannot be settled at the Government level and the parties should approach the Court with their dispute. of Mizoram, Revenue & Settlement Department, which states the Government observation that the dispute cannot be settled at the Government level and the parties should approach the Court with their dispute. The Lower Court Record also clearly reveals that there is no evidence that the respondent Nos. 5 & 6 sold the suit property to the appellant. This is admitted by the appellant's counsel. 15. The facts of the case shows that the IKK Republic/ITI Veng split into two groups in December 1994 and IKK Republic/ITI Veng was one group, while the other was IKK ITI Veng. As the IKK ITI Veng did not have any Church for the purpose of worship, they made an application for allotment of land to to Chief Minister of Mizoram. Land was allotted to the IKK ITI Veng, vide DLP Misc. No. 43/1995, on lease for 25 years from July 1995 to June 2020. 16. Term and condition No. 4 of the Lease Deed prohibits the transfer of land in part or in whole by way of sale. Term and condition No. 5 of the Lease Deed states that if the lessee has no further use for the land for which it was leased, he shall surrender the land free of cost to the Govt. of Mizoram but he may claim the cost of the building and other works executed in the land on PWD schedule of rates. 17. The appellant has however purchased the said land covered by DLP Misc. No. 43/1995 at the cost of Rs. 1.3 lakhs from the IKK Republic/ITI Veng on 02.05.2000, though the land holder is IKK ITI Veng. The sale of the said land by the IKK Republic/ITI Veng to the appellant is void as the sale deed was not registered under the Indian Registration Act, 1908 and neither was sufficient stamp duty paid. 18. In the case of State of U.P. Vs. Amar Singh & Ors., (1997) 1 SCC 734 , the Apex Court has held that it is settled law that mutation entries are only for the purpose of enabling the State to collect land revenue from the person in possession, but it does not confer any title to the land. The title would be derived from an instrument executed by the owner in favour of an alienee as per the Stamp Act and registered under the Registration Act. In Bondar Singh & Ors. Vs. The title would be derived from an instrument executed by the owner in favour of an alienee as per the Stamp Act and registered under the Registration Act. In Bondar Singh & Ors. Vs. G. Narasimha Reddy & Ors., (2003) 4 SCC 161 , the Supreme Court held that under the law, a sale deed is required to be properly stamped and registered before it can convey title to the vendee. 19. Thus, besides the sale deed not being properly stamped or registered under the Indian Registration Act, 1908, the sale of the Suit property has not been made by the IKK ITI Veng, but by persons who have no right to sell the same as they were not the allotees of the land. Also the suit land being a lease-hold land, the land could not be sold as per the Term and Condition No. 4 of the DLP Misc. 43/1995. 20. In view of the above, this Court holds that there is no infirmity with the finding of the learned Trial Court that the sale of the suit land was void and illegal. The approval by the State Government for conversion of the DLP Misc. No. 43/1995 to a House Site LSC and the subsequent issuance of LSC No. 104402/01/176 of 2002 in favour of the appellant is also void ab initio, as the same has been made in pursuance to the unregistered Sale Deed dated 02.05.2000. 21. There is nothing to show that the IKK ITI Veng had surrendered the suit land to the Government, as the Letter dated 28.05.2000 surrendering the suit land to the Government has been made by the IKK Republic/ITI Veng and not by the IKK ITI Veng. 22. The certificate of land lease, i.e., DLP Misc. No. 43/1995 is for a period of 25 years, from July 1995 to June 2020. There is nothing to show that the IKK ITI Veng has surrendered the suit land till date and as such, the validity of the land lease cannot be said to have expired till date. 23. 22. The certificate of land lease, i.e., DLP Misc. No. 43/1995 is for a period of 25 years, from July 1995 to June 2020. There is nothing to show that the IKK ITI Veng has surrendered the suit land till date and as such, the validity of the land lease cannot be said to have expired till date. 23. The learned counsel for the appellant has prayed for taking additional evidence under Order 41 Rule 27 CPC on the ground that after the impugned Judgment & Order dated 13.07.2012 was pronounced by the Trial Court, the appellant came to know that the IKK Republic/ITI Veng and IKK ITI Veng had joined together and reached an amicable settlement and that the Secretary of the joint IKK Units have resolved that the land covered by the DLP Misc. No. 43/1995 should be given to the appellant. The same has however been denied and objected by the learned counsel for the respondent Nos. 5 & 6, on the ground that the Secretary of the unified IKK Units, Upa. K.C. Zoramchhana has forged and fabricated document and there was no resolution that the appellant should be given/allotted the suit land. The stand of the respondent Nos. 5 & 6 appears to be correct, inasmuch as, if a settlement had been reached between the parties in the year 2002, regarding sale of the Suit Land, the appellant would not have filed D.S. No. 4/2010 in the year 2010. 24. This Court has to see whether the prayer for taking additional evidence should be allowed. 25. Order 41 Rule 27 states as follows:- "27. Production of additional evidence in Appellate Court.-(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. 24. This Court has to see whether the prayer for taking additional evidence should be allowed. 25. Order 41 Rule 27 states as follows:- "27. Production of additional evidence in Appellate Court.-(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if- (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or [(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or] (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission." 26. In the present case, it is not the case of the appellant that the learned Trial Court has refused to admit the evidence, which ought to be admitted. This Court, on considering the fact that the sale of the suit land was made by a 3rd party, who did not have any right over the land and the sale having been done on the basis of an unregistered sale deed, the additional evidence sought to be adduced will not have any bearing to the subject matter in issue that has to be decided in the present case. Even assuming that the re-united IKK Republic/ITI Veng and IKK ITI Veng had taken a resolution for allotment of the suit land to the appellant, the same does not take away the fact that the sale of the said land to the appellant was illegal and void. In that view of the matter, the prayer of the appellants counsel for production of additional evidence in the Appellate Court is rejected. This Court is of the view that this Court would be able to adjudicate the present appeal, within the existing evidence and records of the learned Trial Court. 27. In that view of the matter, the prayer of the appellants counsel for production of additional evidence in the Appellate Court is rejected. This Court is of the view that this Court would be able to adjudicate the present appeal, within the existing evidence and records of the learned Trial Court. 27. In view of the above reasons, this Court does not find any reason to interfere with the impugned judgment & order of the learned Trial Court. The appeal is accordingly dismissed. Send back the LCR.