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2021 DIGILAW 624 (GAU)

Kamin Dai S/o Late Oni Dai v. Oyem Dai

2021-10-27

ROBIN PHUKAN

body2021
JUDGMENT : ROBIN PHUKAN, J. 1. This Civil Revision Petition, under section 50 of the Assam Frontier (Administration of Justice) Regulation, 1945 is preferred by Shri Kamin Dai, Shri Kading Dai and Shri Kanggong Dai, challenging the legality and correctness of the Order, dated 31.07.2017, passed by the Deputy Commissioner, Pasighat in Civil Appeal No. 05/2016 (Shri Kanggong Dai and Others vs. Shri Oyem Dai). 2. It is to be mentioned here that vide impugned order the Deputy Commissioner has dismissed the appeal preferred by the petitioners and upheld the decision Kebang dated 12.01.2016. 3. The factual background leading to filing of the present Civil Revision Petition is adumbrated herein-below: “Late Oni Dai was the father of the present petitioners. He was a Government Servant and retired as DFO. He possessed huge plot of land at Diking area of Pasighat. In the year 1987, Oni Dai and Shri Oyem Dai entered into an agreement (verbal) that Oyem Dai will clear forest land of Oni Dai and in lieu of the same Oni Dai will allot/cede a plot of land for residential purpose ‘Kumol’ or ‘Kumkor’ to him. Pursuant to said verbal agreement Oyem Dai has cleared the jungle and while Oni Dai was ready to allot a plot of land to Oyem Dai in the said location for residential purpose. However, he could not materialize the same due to objections from his family members. But, he assured to provide the land somewhere else except in Diking area, where he cleared the forest. Then after elapse of 26 years, Oyem Dai again reminded Oni Dai about the verbal agreement. Then regretting for the delay, Oni Dai agreed to pay compensation in lieu of the land. But, Oyem Dai did not agree and insisted on for a plot of land for residential purpose. Thereafter, a family level Kebang was called in the house of one Obang Dai, on 12.01.2016, wherein a decision was taken to provide ‘one pura’ of land to Oyem Dai at Ramro-Tulap area. And Oyem Dai also accepted the offer without any hesitation. Thereafter, one agreement to that effect was signed by Oni Dai and Oyem Dai in presence of Shri Dading Daso, Kaling Dai, Shri Oshek Dai, Kanggong Dai, Tarin Dai, Smt. Omi Dai W/o Oni Dai, and Kalig Dai, who have signed over the same as witness. And Oyem Dai also accepted the offer without any hesitation. Thereafter, one agreement to that effect was signed by Oni Dai and Oyem Dai in presence of Shri Dading Daso, Kaling Dai, Shri Oshek Dai, Kanggong Dai, Tarin Dai, Smt. Omi Dai W/o Oni Dai, and Kalig Dai, who have signed over the same as witness. Then being aggrieved, the petitioners filed one complaint before the Deputy Commissioner, Pasighat. Then as ordered by the Deputy Commissioner, vide Memo No. HT-95/2003, dated 9.11.2016, one Kebang was conducted on 14.11.2016, under the chairpersonship of Smt. Opet Gao, HGB-Mibuk Village. The complainant and the respondent also remained present in the said Kebang. The elderly members of Dai Clan and other village elders also remained present. In the said Kebang it has been decided that a sum of Rs. 50,000/- shall be paid by Oyem dai as a cost of one pura of land allotted to him by Oni Dai and that the same is full and final settlement which shall not be reviewed by either party. But, the present petitioners did not sign the Kebang decision, though the same was signed by Smt. Opet Gao, HGB-Mibuk Village and Smt. Omi Dai W/o Oni Dai. Then being aggrieved by the Kebang decision the present revisionists have preferred an appeal before the Deputy Commissioner, Pasighat. Then hearing both the parties on 31.07.2017 the Deputy Commissioner, Pasighat has passed the impugned order dismissing the appeal and upholding the Kebang decision.” 4. Being highly aggrieved by the decision of the Deputy Commissioner, Pasighat, dated 31.07.2017, the appellants preferred the present revision petition under section 50 of the Assam Frontier (Administration of Justice) Regulation, 1945 on the following grounds: (i) That, the learned court below has committed grave error in facts by declaring that the petitioners and their mother have assented to the DAI family decision dated 12.01.2016, and that the petitioners’ mother Smt. Omi Dai put her signatures in the decision. (ii) That, as per Adi customs, once the male heirs attains the age of majority, they become co-owners of all landed properties and in case of unilateral sale they have right of preemption even against their father and no traditional land can be parted without their consent. (ii) That, as per Adi customs, once the male heirs attains the age of majority, they become co-owners of all landed properties and in case of unilateral sale they have right of preemption even against their father and no traditional land can be parted without their consent. In the instant case, the Petitioner No. 1 was the owner of the particular plot of land and he was not made a party and his consent was not taken while his land was being parted to the sole respondent and on this ground alone the Kebang decision, dated 14.11.2016, ought to have been quashed by the Deputy Commissioner. (iii) That, the Deputy Commissioner has misconstrued the meaning of KUMKOL and misinterpreted the same. The total measurement of a House Plot cannot be a Plot measuring 5319 Sq. Meters which is equivalent to a Jhum Agricultural plot or agricultural plot, whereas the State Government norms for allotment of Standard House Plot is 500 Sq. Meters, therefore the illegalities committed are so stark that it is not sustainable in the eyes of law. (iv) That, the claims of the Respondent was stale and barred by limitation and the same has not been taken into consideration while passing the Kebang Decisions. (v) That, the Kebang decisions, dated 12.01.2016 and 14.11.2016, was arbitrary, perverse and against the Adi customs and rules and the impugned order, dated 31.7.2017, passed by the Deputy Commissioner being a result of these decisions is equally arbitrary and perverse. (vi) That, by simply refusing to adjudicate upon whether or not the arbitrary fixation of Rs 50,000/- for large area of land measuring 5319 Sq Meters was proper and legal, the Deputy Commissioner had failed to consider that once the Kebang Decided that cost of land (aare) is liable to pay, it was incumbent on them to allow proper cost of land as per market value. (vii) That, the Deputy Commissioner failed to appreciate that the Kebang decision passed on dated 14.11.2016, which is perverse and bad as it has taken a decision to part with the plot of land of the Petitioner No. 1 without impleading him as a necessary party to any of the Kebang proceedings. (viii) That, the decision of the Deputy Commissioner, is illegal as he should have conducted a de-novo trail of the case. 5. (viii) That, the decision of the Deputy Commissioner, is illegal as he should have conducted a de-novo trail of the case. 5. The respondent, having entered appearance on receipt of notice, had submitted his Affidavit-in-opposition, denying the averments made in the petition by the petitioners. It is stated that at the request of father of the petitioners and on the assurance given by him to offer a plot of land “Kumkor” at Diking, he had cleared jungle of 4 puras of land engaging some labourers at his own expenses and make the land suitable for human dwelling. And while the father of the petitioner decided to materialize the assurance, then due to some disputes in the family, the same could not be given effect to. It is also stated that when the father of the petitioner was terminally ill in the year 2016, and when the respondent paid a courtesy visit to him then the father of the petitioner regretted for the delay in fulfilling his promise and summoned his close relatives and elders of Dai clan and on a given date i.e. 12.01.2016, he executed an agreement-Annexure-I, and bestowed ‘one puras’ of land at Ramro Tulap Arik area in lieu of Diking area. Pursuant to that decision of Kebang, another Kebang was held on 16.01.2016, and the father of the petitioner had demarcated the plot of land in presence of O.P. No. 3 Shri Kanggon Dai and his mother Smt. Omi Dai and in presence of witnesses and Annexure II is the said Final Settlement, where the petitioner No. 3 and his mother and other witnesses also signed. Thereafter, respondent No. 3, on 13.10.2016, lodged one complaint Annexure-III before the Deputy Commissioner in respect of non-payment of cost. Then the Deputy Commissioner had issued an order to hold Kebang which was conducted by HGB Tigra Mibuk Village-Smt. Opet Gao on 14.11.2016, and the same was concluded with a decision, Annexure-V, that the respondent shall pay a sum of Rs. 50,000/ to the petitioners, towards the cost of the land, and the respondent had deposited the same before the Kebang within the stipulated period. 50,000/ to the petitioners, towards the cost of the land, and the respondent had deposited the same before the Kebang within the stipulated period. But, the petitioners filed an appeal before the Deputy Commissioner against the decision of the Kebang and the Deputy Commissioner, having taken cognizance, decided and dismissed the same vide order dated 31.07.2016, Annexure-IX, after hearing both sides and there is no illegality in the said order and therefore, it is contended to upheld the decision. 6. Heard Ms. N. Daggen ld. Counsel for the petitioners and also heard Mr. O. Pada, the ld. Counsel for the respondent. 7. Ms. N. Daggen ld. Counsel for the petitioners submitted that the impugned order is legally and factually incorrect. It is further submitted that the petitioners never signed the Kebang decision which is based on wrong factual finding, and they were never consulted. It is further submitted that the petitioner was minor at that time and he put his signature over the sale deed and he was never consulted. It is further submitted that the Deputy Commissioner has misconstrued the house plot, which is about 1000 square meter, with that of agricultural plot and allotment of such a plot of land to the respondent caused unjust enrichment to him. Ms. Daggen has referred one case law Indian Council for Enviro-legal Action vs. Union of India, (2011) 8 SCC 161 , in support of her submission. It is further submitted that the subsequent Kebang has decided the cost of the land at Rs. 50,000/- without taking into account the market value. Therefore, Ms. Daggen contended to allow this petition by setting aside the impugned order. 8. Whereas. Mr. O. Pada, the ld. Counsel for the respondent has submitted that the Deputy Commissioner has not committed any wrong in upholding the decision of the Kebang, dated 14.11.2016. Mr. Pada has submitted that the grievance is only nonpayment of cost of the land by the respondent and the same is apparent from the Annexure-III of the Affidavit-in-opposition filed by the respondent. Mr. Pada further submitted that regarding non-payment of cost of the land, a complaint, i.e. Annexure-III was lodged with the Deputy Commissioner by Kangong Dai, the petitioner No. 3, on 13th October 2016. Mr. Pada further submitted that regarding non-payment of cost of the land, a complaint, i.e. Annexure-III was lodged with the Deputy Commissioner by Kangong Dai, the petitioner No. 3, on 13th October 2016. And accordingly, the Deputy Commissioner, has vide order dated 9th November 2016 Annexure-IV, has directed to conduct a Kebang and accordingly Kebang was held and a decision was taken on 14.11.2016, and the respondent was directed to pay a sum of Rs. 50,000/ being the cost ‘one pura’ of land at Ramro Tulap Arik area. Mr. Pada therefore, contended to dismiss the petition. 9. Having heard the submission of ld. Advocates of both the parties I have gone through the impugned order and also the petition and Affidavit in opposition and the documents placed on record, carefully. And from the same following undisputed facts emerges: (i) In the year 1986-87, the father of the petitioner was serving as DFO at Daporijo, and he called the respondent to the house of his fatherin-law at Tigra Village, and requested him to clear jungle and bushes situated at Diking are for construction of his house, and in lieu of the same he had assured to give a plot of land ‘Kumkor’ to the respondent at Diking area. (ii) The respondent then cleared jungle of 4 puras of land engaging some labourers’ at his own expenses, and make the land suitable for human dwelling. (iii) But, the father of the petitioners’ could not materialize the assurance due to some disputes in the family. (iv) While the father of the petitioner was terminally ill, in the year 2016, and when the respondent paid a courtesy visit to him then the father of the petitioner regretted for the delay in fulfilling his promise, and on 12.01.2016, he executed an agreement-Annexure-I, and bestowed ‘one puras’ of land at Ramro Tulap Arik area in lieu of Diking area. (v) Then another Kebang was held on 16.01.2016, wherein the father of the petitioners’ had demarcated the plot of land in presence of O.P. No. 3 Shri Kanggon Dai and his mother Smt. Omi Dai and also in presence of witnesses and executed a final settlement deed Annexure II, where the petitioner No. 3 and his mother and other witnesses also signed. (vi) Thereafter, the petitioner No. 3, on 13.10.2016, lodged one complaint Annexure-III, before the Deputy Commissioner in respect of nonpayment of cost. (vi) Thereafter, the petitioner No. 3, on 13.10.2016, lodged one complaint Annexure-III, before the Deputy Commissioner in respect of nonpayment of cost. (vii) Then the Deputy Commissioner had issued an order to hold Kebang, which was conducted by HGB Tigra Mibuk Village-Smt. Opet Gao on 14.11.2016, and the same was concluded with a decision, Annexure-V, that the respondent shall pay a sum of Rs. 50,000/- to the petitioners, towards the cost of the land and the respondent had deposited the same before the Kebang within the stipulated period. (viii) But the petitioners filed an appeal before the Deputy Commissioner against the decision of the Kebang and the Deputy Commissioner, vide order dated 31.07.2016, Annexure-IX, after hearing both sides dismissed the appeal. 10. It also appears from the impugned order, i.e. Annexure-IX, dated 31.07.2017, that the Deputy Commissioner has upheld both the decision of Kebang, i.e. the decision on 12.01.2016, by which it was decided to allot a plot of land, measuring ‘one pura’ to the respondent at Ramro Tulap Arik area in lieu of Diking area and the decision dated 14.11.2016, by which it was decided that the respondent shall pay a sum of Rs. 50,000/- to the petitioners being the cost of ‘one pura’ of land on the complaint made by the petitioner No. 3. 11. It also appears that the verbal agreement between the respondent and father of the petitioner was held in the year 1986-87, that in lieu of clearing jungle by the respondent, the father of the petitioner would give a plot of land ‘Kumkor’ to the respondent. The respondent, pursuant to said request, cleared jungle of four puras of land by engaging labourers’ at his own cost and made the land feasible for human dwelling. But, the promise could not be materialized till the 12.01.2016, on which a Kebang of Dai family clan was held and finally the same was settled on 16.01.2016 when a final agreement was made and instead of giving land to the respondent at Diking area, the same was given at Ramro Tulap Arik area. The agreement, dated 16.01.2016, Annexure-II, was signed by both the parties and also by the petitioner No. 3-Shri Kanggon Dai and his mother Smt. Omi Dai and other witnesses present there. The agreement, dated 16.01.2016, Annexure-II, was signed by both the parties and also by the petitioner No. 3-Shri Kanggon Dai and his mother Smt. Omi Dai and other witnesses present there. In the said decision of Kebang and also in the decision of Kebang held on 12.01.2016, the issue of cost of the land was never raised and discussed nor was the same in the verbal agreement between the father of the petitioners and the respondent held in the year 1986-87. 12. The issue of payment of cost was raised by petitioner No. 3 by filing a complaint before the Deputy Commissioner on 13th October 2016, for the first time and then the Deputy Commissioner has ordered for a Kebang and the same was held on 14.11.2016. It also appears from the decision of the Kebang Annexure V, of the affidavit-in-opposition that the Kebang heard the petitioner No. 3 and his mother Smt. Omi Dai and the respondent and elderly members of Dai Clan, and only thereafter a decision was taken that the respondent shall pay a sum of Rs. 50,000/- being the cost of the ‘one pura’ of land given to him. And the respondent had paid the same in compliance of the decision of Kebang. 13. Since the issue of payment of cost of land was not there in the verbal agreement between the father of the petitioner and the respondent and in the two decisions of Kebang held on 12.01.2016 and in 16.01.2016, subsequent rising of the same is neither legal nor equitable. The respondent is not legally bound to honour such illegal demand. Despite, being a responsible person, the respondent and honoring the decision of the Kebang held on 14.11.2016, he had paid the amount. Now raising the issue of inadequacy of the cost in the present day context seems to be totally uncalled for. It may be correct that the value of the land will be much more higher than Rs. 50,000/-. But, at the same time the value of service rendered by the respondent and the cost of labour in the year 1986-87, also cannot be ignored. In view of above, the decision of Kebang, directing the respondent to pay of sum of Rs. 50,000/- seem to have balanced the rights and interest of both the parties. And as such the question of unjust enrichment by the respondent, as submitted by Ms. In view of above, the decision of Kebang, directing the respondent to pay of sum of Rs. 50,000/- seem to have balanced the rights and interest of both the parties. And as such the question of unjust enrichment by the respondent, as submitted by Ms. Daggen, the ld. Counsel for the respondent appears to be devoid of any force. Unjust enrichment occurred when a person has and retains money or benefits which in justice and equity belongs to others. Here in this case the land was allotted/parted to the respondent by the father of the petitioners, in lieu of service rendered by the respondent for clearing jungle of ‘four puras’ of land by engaging labourers’ at his own cost in the year 1986-87. Moreover the respondent never demanded one pura of land from the father of the petitioners’. It is the father of the petitioners who has decided to allot/part ‘one pura’ of land to the respondent in a Kebang held amongst the members of Dai Clan. Therefore, the question unjust enrichment does not arise. The case law, referred by Ms. Daggen, to my considered opinion would not help her any more. It may, however, be correct to say that the dimension of ‘one pure’ of land allotted to the respondent is much higher than that of ‘Kumol’. But, it was the father of the petitioners’ who had decided to allot/part such a plot of land to the respondent in a Kebang held amongst the members of Dai Clan. He never demanded the same. And as such, non consideration of this aspect by the Deputy Commissioner, Pasighat, in the impugned order, never renders the same illegal. Moreover, the petitioner No. 3 and his mother had put their signature in Annexure II, i.e. the deed of final settlement. Now, the petitioner cannot raise the issue, because of the principle of estoppel, which is the rule of equity, incorporated in section 115 and 117 of the Evidence Act, precludes him from asserting the same. 14. Thus, the impugned order, dated 31.07.2017, passed by the Deputy Commissioner, Pasighat in Civil Appeal No. 05/2016, suffers from no infirmity or illegality requiring any interference of this court. In the result, I find this civil revision petition devoid of merit, and accordingly, the same stands dismissed. Send down the record of ld. Court below with a copy of this judgment and order. In the result, I find this civil revision petition devoid of merit, and accordingly, the same stands dismissed. Send down the record of ld. Court below with a copy of this judgment and order. The parties have to bear their own cost.