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2022 DIGILAW 1010 (GAU)

Lalnuntluanga v. Union of India

2022-09-12

NELSON SAILO

body2022
JUDGMENT : Heard Lalawmpuii Fanai, learned counsel for the appellant, Ms. Zairemsangpuii, learned CGC for the respondent Union of India and Ms. Linda L. Fambawl, learned Government Advocate for the State respondents. 2. The appellant has filed the instant appeal under Section 97 r/w Section 151 of the Code of Civil Procedure, 1908 (CPC) against the Order dated 21.03.2017 passed by the learned Senior Civil Judge, Aizawl in Civil Suit No. 2/2013 dismissing the suit on the ground of delay. 3. Be it stated herein that the original appellant was also the plaintiff before the learned Trial Court. During the pendency of the instant appeal, he expired on 16.01.2021 and therefore, an application for his substitution was filed by his son Sh. Lalnuntluanga through I.A(C) No. 73/2021 and the same was allowed vide Order dated 27.10.2021. Therefore, the present appellant is the son of the original appellant and will be referred to as the appellant. 4. Brief facts of the case is that the father of the appellant was issued House Pass No. 167/1965 by the Village Council of Zemabawk on 12.03.1965. He was looking after his plot of land by erecting structures, etc., until the Indian Army came to forcefully occupy his land during the disturbances in Mizoram in the year 1966. The House Pass was subsequently converted into a Land Settlement Certificate i.e., LSC No. AZL 4081/1986. The Armed Forces according to the appellant continued to occupy his land since 1966 without paying any rental compensation and therefore, the appellant served a notice to the respondent Union of India under Section 80 CPC on 04.04.2011. As there was no response to the notice, the appellant filed Civil Suit No. 2/2013 on 21.01.2013. 5. Against the Civil Suit, the Union of India as defendant Nos. 1 to 4 filed their written statements raising preliminary objections as well as objections on merit. They denied that the land of the appellant was under their occupation. They further contended that during the year 1992-1993, a joint survey was carried out to ascertain the actual area of occupation of land by the Army and on the basis of the joint verification, rental compensation for an amount of Rs. 5,19,63,771/-was sanctioned by the Ministry of Defence, Govt. of India and the same was paid to the Revenue Department, Govt. 5,19,63,771/-was sanctioned by the Ministry of Defence, Govt. of India and the same was paid to the Revenue Department, Govt. of Mizoram, for disbursement to the actual land owners towards rental compensation for the period from 01.09.1986 to 31.12.1997. Thereafter, for the period from 01.01.1998 to 31.12.2005, an amount of Rs. 8,86,64,648/-was sanctioned and paid to the Revenue Department for disbursement to the actual land owners towards rental compensation and likewise, a sum of Rs. 1,98,30,370/-was sanctioned and paid for the period w.e.f. 01.01.2006 to 31.12.2007. Therefore, they contended that there was no basis on the claim made in the Civil Suit and the same should be dismissed. 6. During the pendency of the civil suit, the learned Trial Court on 19.01.2015 directed the District Collector, Aizawl, who was arrayed as defendant No. 5 in the Civil Suit to conduct a joint verification on the disputed land. Accordingly, a joint verification was conducted on 16.02.2015 and the report was submitted before the Court on 23.04.2015 and the parties were given a copy of the same. 7. Thereafter, the appellant submitted an application for impleading the Revenue Department, Govt. of Mizoram as a party defendant in the Suit and the learned Trial Court vide Order dated 19.11.2015 allowed the application and directed the appellant to file a recast/amended plaint. The appellant, accordingly, filed the recast plaint by impleading the Secretary to the Govt. of Mizoram, Land Revenue & Settlement Department and Director of the same Department as defendant Nos. 6 & 7. 8. Against the recast plaint, the newly impleaded defendant Nos. 6 & 7 i.e., the Revenue Department submitted their written statement raising preliminary objection that the Suit was barred by time amongst others and further made objections on merit as well. On merit, it was contended that the Village Council of Zemabawk had no authority to make allotment of sites within their jurisdiction as the area was declared to be a protected area vide Notification dated 09.06.1960 issued by the erstwhile Executive Department of the Mizo District Council. In so far as, the rental compensation was concerned, the same was disbursed to the respective land owners as sanctioned by the Union of India and that no other claims or sanction has been held back by the State Government. 9. In so far as, the rental compensation was concerned, the same was disbursed to the respective land owners as sanctioned by the Union of India and that no other claims or sanction has been held back by the State Government. 9. The Deputy Commissioner, Aizawl District Aizawl, who was arrayed as defendant No. 5 also filed a written statement raising preliminary objection as well as objection on merit. One of the preliminary objection raised was that the Suit was barred by limitation. On merit, the defendant No. 5 contended that on checking the actual payee receipt kept in the office records, the name of the appellant was not found. Further, it was not known as to whether the Land Revenue & Settlement had paid the amount since they had taken up the task of making assessment of rental charges and compensation on the damaged properties and other connected matters from March 2008 to June 2012. The task of making assessment was taken up again from the year 2012 onwards. 10. The learned Trial Court, thereafter, framed 10 (ten) issues on 27.10.2016 but subsequently took up the matter for pre-hearing on 21.03.2017 and after considering the issue Nos. 1 & 2 i.e., the maintainability of the Suit and as to whether the Suit was barred by limitation, dismissed the Suit as being barred by time. That is how the plaintiff as appellant is before this Court in appeal. 11. Ms. Lalawmpuii Fanai, learned counsel by referring to the grounds taken in the memorandum of appeal submits that the learned Trial Court in dismissing the suit on the grounds of delay by referring to part-V of the schedule of the Limitation Act, 1963 (Limitation Act) failed to consider the fact that as the land of the appellant was being continuously and forcibly occupied by the Armed Forces, there is a continuing tort and that a fresh period of limitation continues to run for such forcible occupation till date. Therefore, Section 22 of the Limitation Act will apply to the case of the appellant. 12. Therefore, Section 22 of the Limitation Act will apply to the case of the appellant. 12. The learned counsel further submits that according to the Deputy Commissioner, the payment of rental compensation was taken up by the Land Revenue & Settlement Department w.e.f., March 2008 to June 2012 and therefore, the Suit could not have been dismissed without ascertaining as to whether there was any sanction for rental compensation in favour of the appellant by the Ministry of Defence, Govt. of India. She also submits that in the joint verification that was conducted on 16.02.2015, there was a clear finding that the LSC of the appellant was confirmed to be a genuine LSC by the Land Revenue & Settlement Department and that in the blue print of the area occupied by the Army Supply Corps which, which was approximately 21.5 acres produced by the Officer Commanding, Army Supply Corps, the land belonging to the appellant was found to be within the blue print area. Therefore, without considering these aspects, the learned Trial Court could not have dismissed the Suit of the appellant at the threshold on maintainability. She, therefore, submits that the matter may be remanded back to the learned Trial Court for re-consideration and decision on all the 10 (ten) issues framed. In support of her submission, she relies upon the following authorities:- (1) Sankar Dastidar vs. Banjula Dastidar (Smt) & Anr., (2006) 13 SCC 470. (2) Hari Ram vs. Jyoti Prasad & Anr., (2011) 2 SCC 682 . 13. Ms. Zairemsangpuii, learned CGC, on the other hand, submits that there is nothing wrong with the impugned order passed by the learned Trial Court in dismissing the Suit on the grounds of delay. She submits that according to the appellant himself, the cause of action arose in the year 1966, but the appellant filed the Civil Suit only in the year 2013 and therefore, the same was rightly dismissed. She further submits that in so far as payment of rental compensation is concerned, the Ministry of Defence, Govt. of India has from time to time has been sanctioning the required fund and all the land owners, whose lands are actually occupied by the Armed Forces are being paid rental compensation through the Land Revenue & Settlement Department of the State Government, as well as, through the Deputy Commissioner, Aizawl District, Aizawl. of India has from time to time has been sanctioning the required fund and all the land owners, whose lands are actually occupied by the Armed Forces are being paid rental compensation through the Land Revenue & Settlement Department of the State Government, as well as, through the Deputy Commissioner, Aizawl District, Aizawl. As such, the belated claim made by the appellant being without any basis, the appeal should be dismissed. 14. Mrs. Linda L. Fambawl, learned Government Advocate appearing for the State respondents also adopts the argument of the learned CGC and submits that the learned Trial Court rightly dismissed the Suit of the appellant as being barred by the law of limitation. She submits that the Civil Suit filed by the appellant miserably suffers from the vice of delay and laches and therefore, no relief can be granted by the Court. She submits that even on merit, the House Pass issued by the Village Council of Zemabawk is void ab initio since the said Village Council was debarred from issuing any Pass within the protected area and Zemabawk locality was also within the protected area as notified by the erstwhile District, Mizo District Council vide Notification dated 09.06.1960. She, therefore, submits that the appeal has no merit and the same should be dismissed. In support of her submission, Mrs. Linda L. Fambawl, learned Government Advocate relies upon the following authorities:- (1) State of Maharashtra vs. Digambar (1995) 4 SCC 683 . (2) Municipal Council, Ahmednagar & Anr., vs. Shah Hyder Beig & Ors., (2002) 2 SCC 48. 15. I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record. 16. From what has been projected by the parties and from the records, it may be seen that the Civil Suit filed by the appellant was dismissed at the time of pre-hearing by considering issue Nos. 1 & 2, out of the 10 (ten) issues framed by the learned Trial Court. The first issue framed i.e., “whether the suit is maintainable in its present form and style?, the learned Trial Court found the Suit to be maintainable and therefore, the same need not be discussed. 1 & 2, out of the 10 (ten) issues framed by the learned Trial Court. The first issue framed i.e., “whether the suit is maintainable in its present form and style?, the learned Trial Court found the Suit to be maintainable and therefore, the same need not be discussed. As regards the second issue framed i.e., “whether, the suit is barred by law of limitation?”, the learned Trial Court by taking into consideration part-V of the schedule of the limitation act held that the maximum or longest limitation period prescribed being 12 years and the Suit having been filed very much beyond 12 years from the date the cause of action arose, the Suit was barred by limitation. In coming to such a conclusion, the learned Trial Court also referred to the decision of the Apex Court in J. Thansiama vs. State of Mizoram & Anr., 2015 (5) GLT SC 7 wherein, the Apex Court held that the Limitation Act is applicable in the State of Mizoram. 17. In view of the above Apex Court’s decision, there can be no doubt that the law of limitation is applicable in the State of Mizoram. Order XIV Rule 2 of the CPC, which is relevant for consideration may be abstracted hereunder for ready reference:- “2. Court to pronounce judgment on all issues.---(1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment of all issues. (2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to--- (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.” 18. From the above abstract, it may be seen that although the Court is empowered to dispose of a suit on a preliminary issue, the Court is required to pronounce its judgment on all issues subject to the provisions of sub-Rule (2). From the above abstract, it may be seen that although the Court is empowered to dispose of a suit on a preliminary issue, the Court is required to pronounce its judgment on all issues subject to the provisions of sub-Rule (2). Sub-rule (2) provides that when the issues of both law and of fact arise in the same suit and the Court is of the opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if the issue relates to jurisdiction of the Court or a bar created by any law for the time being in force. The Court may postpone the settlement of the other issues until the issue of law is determined and then deal with the suit in accordance with the decision of that issue. 19. The Apex Court in the case of Ramesh B. Desai & Ors., vs. Bipin Vadilal Mehta & Ors., (2006) 5 SCC, while dealing with the issue of limitation opined that the plea of limitation cannot be decided as an abstract principle of law divorced from facts as in every case, the starting point of limitation has to be ascertain which is entirely the question of fact. The Court further proceeded to state that a plea of limitation is a mixed question of fact and law. On a plain consideration of the language employed in sub Rule (2) of Order XIV, it can be stated with certitude that when an issue requires an enquiry into facts, it cannot be tried as a preliminary issue. The decision in Ramesh B. Desai (supra) was also referred to by the Apex Court in a subsequent decision in Satti Paradesi Samadh and Pillayar Temple vs. M. Sakuntala through LRS & Ors., (2015) 5 SCC 674 . 20. The Apex Court in Major S.S Khanna vs. Brig. SJ Dillion, AIR 1964 SC 497 while appreciating the provision of Order XIV Rule 2 of the CPC held that the jurisdiction to try issues of law apart from issues of fact may be exercised only where in the opinion of the Court, the whole suit may be disposed of on issues of law alone, but the Code confers no jurisdiction upon the Court to try a suit on mixed issues of law and fact as preliminary issues. Normally, all the issues in a suit should be tried by the Court and not to do so, especially when the decisions of the issue even of law depends upon the decisions of issues of fact, would result in a lop-sided trial of the suit. 21. Coming to the present case, it may be seen that the claim made by the appellant is for rental compensation for forcible occupation of his land by the Armed Forces since the year 1966 during the disturbances prevailing in Mizoram. As already stated herein above, a joint verification was directed by the Trial Court vide Order dated 19.01.2015 and accordingly, a joint verification was conducted on 16.02.2015. The joint verification report reveals that the original Land Pass produced by the appellant was found to be genuine by the representatives of the Revenue Department and upon perusal of the blue print produced by the Officer Commanding of the Army Supply Corps, the land of the appellant was found to be within the blue print area. On the other hand, the appellant claims that he has not received any rental compensation from the Armed Forces for forceful occupation of his land. Therefore, without determining the factual aspects of the matter, taking up of the case for final disposal solely on the point of law of limitation in my considered view may not be correct approach. The Apex Court in Balasaria Construction (P) Ltd vs. Hanuman Seva Trust & Ors., (2006) 5 SCC 658 on the given facts of that case held that the suit could not have been dismissed as barred by limitation without proper pleadings, framing of an issue of limitation and taking of evidence, the question of limitation being a mix questions of law and facts. 22. The Apex Court in Sankar Dastidar (supra) held that a suit for damages suit for damages suit on a different footing vis-à-vis as continue wrong in respect of enjoyment of one’s right in a property. When a right of way is claimed whether public or private over a certain land over which the tort-feasor has no right of possession, the breaches would be a continuing one. It is, however, indisputable that unless the wrong is a continuing one, period of limitation does not stop running. Once the period begins to run, it does not stop except where the provisions of Section 22 would apply. 23. It is, however, indisputable that unless the wrong is a continuing one, period of limitation does not stop running. Once the period begins to run, it does not stop except where the provisions of Section 22 would apply. 23. The Apex Court in Hari Ram (supra) also upheld the decision of the High Court that the suit cannot be said to be barred by limitation as an encroachment on a public street is a continuing wrong and therefore, there exist a continuing cause of action as provided in Section 22 of the Limitation Act. The case of State of Maharashtra vs. Digambar (supra) and the case of Municipal Council, Ahmednagar & Anr. (supra) has a reference of delay in filing a writ petition under Article 226 of the Constitution of India and therefore they are found to be not relevant to the present case. 24. Therefore, upon due consideration, I am of the considered view that the Suit could not have been dismissed solely on the preliminary issue of maintainability as being barred by the law of limitation, without considering and deciding the other issues framed. Accordingly, the impugned Order dated 21.03.2017 is hereby set aside and the matter remanded back to the learned Trial Court for reconsideration on all the 10 (ten) issues framed. It is also made clear that by setting aside the impugned order, this Court has not expressed any opinion on the delay in filing the Suit and the same is left open for the Court to consider at the appropriate time along with the other issues so framed. 25. It is seen that the LCR has been sent by the District & Sessions Judge, Aizawl and therefore, the parties are directed to appear before the learned District & Sessions Judge, who shall accordingly direct the parties to appear before the concerned Court after he endorses the case to any particular Senior Civil Judge. The LCR be sent back immediately to the learned District & Sessions Judge, Aizawl and the parties are directed to appear before him on 26.09.2022. 26. With the above observations and directions, the appeal stands disposed of.