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2020 DIGILAW 736 (GAU)

C. Lalhriatrenga v. P. C. Lalthazovi

2020-11-02

MICHAEL ZOTHANKHUMA

body2020
JUDGMENT Michael Zothankhuma, J. - Heard Mr. L.H Lianhrima, learned counsel for the petitioner. Also heard Mr. F. Lalengliana, learned counsel for the respondent No. 2. No one appears for the respondent No. 1, who is the mother of the petitioner. 2. The petitioner has challenged the impugned Judgment & Order dated 11.12.2017 passed by the Court of the Civil Judge-I, in Review Application No. 16/2008, on the ground that the provisions of Order XLVII Rule 1 CPC has not been followed while disposing of the Review Petition submitted by the present Revision Petitioner. 3. The brief facts of the case is that on the death of the petitioner's father on 12.01.1997, the petitioner, who was born on 29.03.1990, continued to live with his mother (respondent No. 1). 4. The respondent No. 1 filed a petition on 01.08.2005 before the Magistrate, SubDistrict Council Court, Aizawl, praying for issuance of an Heirship Certificate in respect of her deceased husband's land covered by LSC No. Azl-1678 of 1994. The Court of the Magistrate, Sub-District Council Court (SDCC), Aizawl, subsequently issued Heirship Certificate No. Azl-1678/1994 on 02.08.2005. 5. The petitioner attained the age of majority on 29.03.2008. On learning that his mother (respondent No. 1) had been granted Heirship Certificate in respect of his deceased father's land, the petitioner filed Review Application No. 16/2008 in the year 2008 before the Magistrate, SDCC, Aizawl. In the meantime, due to the Mizoram Civil Courts Act, 2005 having come into force w.e.f. 26.04.2006 in the State of Mizoram, the Review Application No. 16/2008 was taken up by the Court of the Civil Judge-I, Aizawl. 6. The Review Court dismissed Review Application No. 16/2008 on the ground of delay vide Judgment & Order dated 16.12.2013. Being aggrieved by the same, the petitioner herein filed CRP (I/O) No. 4/2014 in this Court. 7. This Court disposed of CRP (I/O) No. 4/2014 vide Judgment & Order dated 02.02.2016 stating that as the starting point of limitation was the date the minor attained majority and the period of limitation being 3 (three) years, the Review Court should dispose of the Review Petition on merit. 8. The case was then proceeded with by the learned Review Court and the same was disposed of vide the impugned Judgment & Order dated 11.12.2017, by holding that no case for review had been made out. The Review Application No. 16/2008 was accordingly dismissed. 9. 8. The case was then proceeded with by the learned Review Court and the same was disposed of vide the impugned Judgment & Order dated 11.12.2017, by holding that no case for review had been made out. The Review Application No. 16/2008 was accordingly dismissed. 9. The learned counsel for the petitioner prays for setting aside the impugned Judgment & Order on the ground that the learned Review Court had gone beyond the provisions of Order XLVII Rule 1 CPC, while deciding the Review Application. He submits that the learned Review Court had recorded evidence of the parties and had also impleaded the respondent No. 2, who had purchased the said land covered by LSC No. Azl-1678 of 1994 from one Shri. F. Aikhuma, who had lent money to the respondent No. 1. 10. The petitioner's counsel submits that the respondent No. 1 borrowed Rs. 5 lakhs from Shri. F. Aikhuma with the condition that if the amount was not repaid within a period of 60 days, the ownership/title to the land would devolve/vest upon Shri. F. Aikhuma. The respondent No. 1 did not repay the loan amount within 60 days. Subsequently, Shri. F. Aikhuma sold the land to the present respondent No. 2. The petitioner's counsel submits that the impleadment of the respondent No. 2 should have been done in the Trial Court and not in the Review Court. 11. The learned counsel for the petitioner also submits that while the learned Review Court framed 5 (five) issues, 6 (six) issues was settled by the learned Review Court. He also submits that while the Court of the Civil Judge-I had a pecuniary jurisdiction of only Rs. 2 lakhs, the land value was around Rs. 10 lakhs and as such, the Court of the Civil Judge-I did not have the jurisdiction to issue the Heirship Certificate. The Heirship Certificate was accordingly void. 12. The petitioner's counsel also submits that the Mortgage Deed executed by the respondent No. 1 in favour of Shri. F. Aikhuma was not properly stamped and neither was it registered under the Registration Act. He also submits that the learned Review Court had decided the Heirship Certificate Case as per the Mizo Customary Law, as published in the Mizoram Gazette Extra Ordinary No. Vol. XXXIV dated 06.04.2005, which cannot be accepted to be the Mizo Customary Law. He also submits that the learned Review Court had decided the Heirship Certificate Case as per the Mizo Customary Law, as published in the Mizoram Gazette Extra Ordinary No. Vol. XXXIV dated 06.04.2005, which cannot be accepted to be the Mizo Customary Law. He submits that as per the Mizo Customary Law, the respondent No. 1 had no legal right to apply for Heirship Certificate. 13. Mr. F. Lalengliana, the learned counsel for the respondent, on the other hand, submits that the petitioner cannot make a challenge to the recording of evidence by the Review Court and the impleadment of the respondent No. 2, inasmuch as, the petitioner did not make any challenge to the same even during the proceedings of CRP (I/O) No. 4/2014, which had been disposed of on 02.02.2016. He submits that the recording of evidence and impleadment of the respondent No. 2 had been done prior to the disposal of CRP (I/O) No. 4/2014. 14. The learned counsel for the respondent submits that the petitioner in his crossexamination before the learned Review Court had clearly admitted the fact that his mother (respondent No. 1) had taken a loan from F. Aikhuma and given the land as security. Further, the petitioner had also admitted to knowing that the land had been bought by respondent No. 2 from Shri. F. Aikhuma. He accordingly submits that as the respondent No. 1 had acted as a beneficiary in the whole transaction, the petitioner who was a representative/son of the respondent No. 1, he could not deny the truth of the events and as such, the petitioner was estopped from making a challenge to the Heirship Certificate. He accordingly prays that the impugned Judgment & Order passed by the learned Review Court should be upheld. 15. I have heard the learned counsels for the parties. 16. As can be seen from the impugned Judgment & Order and the records, the learned Review Court had recorded evidence of the parties and also impleaded the respondent No. 2. 17. He accordingly prays that the impugned Judgment & Order passed by the learned Review Court should be upheld. 15. I have heard the learned counsels for the parties. 16. As can be seen from the impugned Judgment & Order and the records, the learned Review Court had recorded evidence of the parties and also impleaded the respondent No. 2. 17. Order XLVII Rule 1 CPC states as follows:- "1.Application for review of judgment.---- (1) Any person considering himself aggrieved,-- (a) by a decree or order from which an appeal is allowed, but from no appeal has been preferred, (b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order. (2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review." 18. The Apex Court, in the case of Inderchand Jain vs. Motilal, (2009) 14 SCC 663 has discussed the review jurisdiction of a Court under Order XLVII Rule 1 CPC and has held at para 33 as follows:- "33. The Apex Court, in the case of Inderchand Jain vs. Motilal, (2009) 14 SCC 663 has discussed the review jurisdiction of a Court under Order XLVII Rule 1 CPC and has held at para 33 as follows:- "33. The High Court had rightly noticed the review jurisdiction of the court, which is as under: "The law on the subject - exercise of power of review, as propounded by the Apex Court and various other High Courts may be summarized as hereunder: (i) Review proceedings are not by way of appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 C.P.C. (ii) Power of review may be exercised when some mistake or error apparent on the fact of record is found. But error on the face of record must be such an error which must strike one on mere looking at the record and would not require any long drawn process of reasoning on the points where there may conceivable be two opinions. (iii) Power of review may not be exercised on the ground that the decision was erroneous on merits. (iv) Power of review can also be exercised for any sufficient reason which is wide enough to include a misconception of fact or law by a court or even an Advocate. (v) An application for review may be necessitated by way of invoking the doctrine 'actus curiae neminem gravabit'." In our opinion, the principles of law enumerated by it, in the facts of this case, have wrongly been applied. A reading of the above provision and para 33 of the above case, i.e. Inderchand Jain (supra) clearly goes to show that there can be review of a Judgment only on the grounds mentioned under the said provision. Though a review of the order passed in the Heirship Certificate case could have been done, the manner in which the learned Review Court has proceeded with the Review case is not as per Order 47 CPC. Accordingly, the proceedings in the Review case are impermissible. Though a review of the order passed in the Heirship Certificate case could have been done, the manner in which the learned Review Court has proceeded with the Review case is not as per Order 47 CPC. Accordingly, the proceedings in the Review case are impermissible. On perusing the Order dated 02.08.2005 issued by the Court of the Civil Judge-I, Aizawl, in Heirship Certificate Case No. 260/2005, it is seen that the order of the Trial Court consist of only two words which are reproduced below:- "Issue HC" It is also seen that there was no evidence recorded by the learned Trial Court and no notice was issued to any of the parties. The above facts clearly goes to show that the Heirship Certificate had been issued without following the rudimentary process of law and without coming to any finding that the Heirship Certificate could be issued to the respondent No. 1. The question of deciding the Heirship Certificate case had been taken up by the Review Court, after impleading the respondent No. 2. This Court is of the view that even if the respondent No. 2 was to be impleaded, the same should have been done before the learned Trial Court. The impugned Heirship Certificate having been issued only on the basis of a 2 (two) letter order, i.e. "Issue HC", this Court is of the view that the learned Trial Court order is not in consonance with Order XX CPC. No issues were framed or evidence taken by the learned Trial Court. No finding had been made by the Trial Court. As such, not only is the impugned Judgment & Order dated 11.12.2017 passed in Review Application No. 16/2008 not sustainable, but the order dated 02.08.2005 passed in Heirship Certificate Case No. 260/2005 is also not sustainable. 19. In view of the reasons stated above, this Court is of the view that the present case should be remanded back to decide the issuance of Heirship Certificate in respect of the LSC No. Azl-1678 of 1994 by having a fresh proceeding/trial. As the value of the land is around Rs. 10 lakhs, the Heirship Certificate No. 260/2005 should be decided by a Court of the learned Senior Civil Judge, Aizawl, after the same is endorsed to it by the District Judge. As the value of the land is around Rs. 10 lakhs, the Heirship Certificate No. 260/2005 should be decided by a Court of the learned Senior Civil Judge, Aizawl, after the same is endorsed to it by the District Judge. The Trial Court shall thereafter issue notice to all the parties including the respondent No. 2 and allow them to file a plaint/written statement/replication, if any. 20. This Court is not going into the question of whether the Mortgage Deed was properly stamped or registered or whether the application of the Mizo Customary Law by the learned Review Court had been correctly applied. These issues will be taken up by the learned Trial Court at the time of de novo Trial/proceedings. 21. However, so that time taken for disposal of Heirship Certificate No. 260/2005 is mitigated, this Court, with the consent of the parties, allows for the evidence already recorded by the learned Review Court to be deemed to be evidence recorded by the Trial Court and be used as evidence by the learned Trial Court for coming to a decision. Besides the above, the learned Trial Court shall also allow the recording of further evidence, if required by the parties. 22. Consequently, the impugned Judgment & Order dated 11.12.2017 passed in Review Application No. 16/2008 and the Order dated 02.08.2005 passed in Heirship Certificate No. 260/2005 are hereby set aside. However, status quo with respect to the possession of the land covered by LSC No. Azl-1678 of 1994 shall continue till such/further orders are issued by the learned Trial Court. 23. The LCR be sent back to the learned District Judge, Aizawl for endorsement to the concerned Court for disposal. The Review Petition is accordingly disposed of.