Lalrammawii Bethlehem Vengthlang Aizawl v. Jerry Lalengzauva Bethlehem Vengthlang Aizawl
2021-10-22
NELSON SAILO
body2021
DigiLaw.ai
JUDGMENT : Parties are represented by their respective counsels. Considering the nature of the controversy, both the I.A as well as the Civil Revision Petition are being disposed of by this common order. [2] The grievance of the petitioner is that vide the impugned order dated 19.11.2020 passed in CMA No. 165/2020 arising out of RFA No. 5/2020, the Court of the Addl. District Judge – I, Aizawl not only condoned the delay of 365 days in filing the connected appeal but also remanded the case back to the Trial Court for reconsideration of the Heirship Certificate Application filed by the petitioner. The petitioner is also aggrieved with the order dated 19.11.2020 passed by the lower Appellate Court in RFA No. 5/2020 by which the Court disposed of the appeal in terms of the order passed in CMA No. 165/2020. [3] This Revision Petition was moved on 26.08.2021, on which date Court issued notice to the respondent, returnable by 16.09.2021. Since the respondent was represented on that date by her counsel, an opportunity was granted to file objection to the Civil Revision Petition, if so advised. Pursuant thereto, the respondent has not filed objection to the Civil Revision Petition but has filed I.A(Civil) No. 59/2021 praying for an injunction against the petitioner to restrain him from continuing construction upon the plot of land involved in the Heirship Certificate i.e., LSC No. CAD-546 of 2010. Be it stated herein that while issuing notice in the Civil Revision Petition on 26.08.2021, this Court had stayed the order passed by the lower Appellate Court in both the CMA No. 165/2020 as well as in RFA No. 5/2020. This Court on 26.08.2021 in I.A (C) No. 59/2021 had also passed an order directing the parties to maintain status quo in respect of the construction work over the disputed land. The parties appearing today submit that status quo is being maintained in terms of the direction of this Court till date. [4.] The basic grievance of the petitioner is that after the death of his father, he obtained Heirship Certificate in respect of the LSC in question and the respondent who is his sister, after a lapse of about one (1) year filed an appeal before the lower Appellate Court against the order granting him Heirship Certificate along with an application for condonation of delay.
As stated earlier, the learned lower Appellate Court while condoning the delay also remanded the case back to the Trial Court for reconsideration of the Heirship Certificate. [5.] Mr. T. Lalnunsiama, learned counsel for the petitioner submits that the learned lower Appellate Court was only required to consider as to whether there was sufficient explanation for the delay in filing the appeal before the lower Appellate Court. However, the learned lower Appellate Court apart from considering the delay, entered into the merits of the case in the CMA and remanded the case back to the Trial Court. He also submits that although the Heirship Certificate was granted by the Civil Judge, the learned lower Appellate Court remanded the case back to the Senior Civil Judge. Under the circumstances, the learned counsel submits that the orders passed by the lower Appellate Court may suitably be interfered with by this Court. [6.] Ms. Jacinta Zothanmawii, learned counsel for the respondent on the other hand submits that since the respondent is a widowed daughter of their deceased father Sh. F. Sawithuama, she is also entitled to a share of the property of her deceased father. However, the learned Civil Judge without giving any opportunity to the respondent issued the Heirship Certificate to the petitioner and that is why the respondent filed the appeal before the lower Appellate Court. In so far as the remand made by the learned lower Appellate Court to the Senior Civil Judge, the same is due to the pecuniary jurisdiction of the Civil Court being limited to only Rs. 2 lakhs whereas, the property in question is valued over Rs. 2 lakhs. She therefore submits that the order passed by the learned lower Appellate Court may not be interfered with. [7.] I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record. There is no dispute to the fact that the parties are brother and sister and the claim is made in respect of the property left behind by their late father Sh. F. Sawithuama of Bethlehem Vengthlan, Aizawl, Mizoram. It is also a fact that the respondent was not heard prior to the issuance of the Heirship Certificate.
There is no dispute to the fact that the parties are brother and sister and the claim is made in respect of the property left behind by their late father Sh. F. Sawithuama of Bethlehem Vengthlan, Aizawl, Mizoram. It is also a fact that the respondent was not heard prior to the issuance of the Heirship Certificate. In so far as the impugned order dated 19.11.2020 passed in CMA No. 165/2020 is convened, this Court is of the considered view that the learned lower Appellate Court should have restricted itself only on the issue of condonation of delay in filing the connected appeal and not remand the case back through the order passed in an application for condonation of delay. It is further noticed that the Heirship Certificate was granted by the Civil Court but the learned lower Appellate Court remanded back the matter to the Senior Civil Judge. There is also no reason assigned for remanding the case back to the Senior Civil Judge and not to the Civil Judge although the counsel for the respondent submits that it is due to the pecuniary limit of the learned Courts below. In the considered opinion of this Court, the issue as to whether the property involved is beyond the pecuniary jurisdiction of the Civil Judge or not can be raised before the Civil Court and considered after affording opportunities to the rival parties. [8.] Thus, upon due consideration of the matter in its entirety, both the impugned orders passed by the learned lower Appellate Court are set aside and the following directions are passed:- (i) The Heirship Certificate No. 300 of 2019 stands remanded back to the Civil Court for reconsideration by giving opportunities to both the petitioner as well as the respondent to contest the case. (ii) While contesting the Heirship Certificate Application, the parties will be at liberty to raise the issue of pecuniary jurisdiction of the Court for adjudication of the Heirship Certificate in respect of the property in question. If the property in question is found to be beyond the pecuniary jurisdiction of the Civil Court, the parties will have to approach the Senior Civil Judge. (iii) The learned Civil Judge shall consider and dispose of the Heirship Certificate Application as expeditiously as possible.
If the property in question is found to be beyond the pecuniary jurisdiction of the Civil Court, the parties will have to approach the Senior Civil Judge. (iii) The learned Civil Judge shall consider and dispose of the Heirship Certificate Application as expeditiously as possible. (iv) Pending final decision of the learned Civil Judge, the parties are directed to maintain status quo in respect of the property in question, including further construction. (v) The parties are directed to appear before the Civil Judge – V, Aizawl District, Aizawl on 02.11.2021 whereafter, the learned Civil Court shall proceed with the matter in accordance with law.