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2022 DIGILAW 548 (GAU)

V. L. Nghaki v. Zothanmawia S/o Sena

2022-05-27

MARLI VANKUNG

body2022
JUDGMENT : MARLI VANKUNG, J. 1. Heard Mr. C. Lalfakzuala, learned Legal Aid counsel, Mr. Joseph Lalchhanhima Renthlei, learned counsel for the respondent No. 1 and Mrs. H. Lalmalsalwmi, learned Government Advocate appearing for the respondent Nos. 2 and 7. 2. This is an appeal against the Judgment and Order dated 13.12.2017, passed in Civil Suit No. 52/2011 by the Court of Sr. Civil Judge No. IV, Aizawl. 3. Brief facts of the case is that the Respondent No. 1 is the resident of Tuikual and the owner of LSC No. 68/1971 which he had purchased in the year 2015 from the wife of the original owner Mr. K. Lalhmingthanga (L). The appellant is the owner of LSC No 829/86 which was allotted to her by the respondents No. 2-7. The appellant had been disputing over the vacant space between the two LSCs with the previous owner of the LSC No. 68/1971 even before the respondent no. 1 had purchased the mentioned LSC and the State respondents no. 2-6 had on several occasions conducted spot verification over the disputed space between the above mentioned LSCs and passed various order. The State respondents no. 2-6 then issued the orders dated letter No. C/18016/9/2004/REV/Pt dated 03.02.2011, Order Memo No. R/21011/65/92-DC(A)/Vol-1 dated 21.04.2011 and Order Memo No. R/21011/65/92-DC(A)/Vol-1/247 dated 08.06.2011, wherein the respondent No. 1 was asked to demolish the steps constructed within the vacant land measuring 0.40m falling between the LSCs of the appellant and the respondent no. 1. 4. The plaintiff/respondents No1. 2-6 then issued the orders dated letter No. C/18016/9/2004/REV/Pt dated 03.02.2011, Order Memo No. R/21011/65/92-DC(A)/Vol-1 dated 21.04.2011 and Order Memo No. R/21011/65/92-DC(A)/Vol-1/247 dated 08.06.2011, wherein the respondent No. 1 was asked to demolish the steps constructed within the vacant land measuring 0.40m falling between the LSCs of the appellant and the respondent no. 1. 4. The plaintiff/respondents No1. then filed a Civil Suit No. 52/2011 before the Court of Senior Civil Judge, Aizawl against the defendants No. 1-7 (respondents No. 2-6) and the defendant No. 7 (appellant) praying forthe following relief: (i) A decree cancelling the Letter No. C/18016/9/2004/REV/Pt dated 3.2.2011 issued by the Secretary, Government of Mizoram, Revenue Department, Mizoram (respondent No. 3) deciding that the vacant land measuring 0.40m falling in between the LSC No. 68/1971 and LSC No. 829/86 should not be used by both the plaintiff and the defendant No. 7 (appellant) and that the plaintiff (respondent No. 1) should demolish the steps constructed by him, for a decree cancelling the Order Memo No. R/21011/65/92-DC(A)/Vol-1 dated 21.4.2011 issued by the Defendant No. 5 (respondent No. 6) directing the Plaintiff to demolish the steps constructed by him within 20/5/11 and for a decree cancelling the Order Memo No. R/21011/65/92-DC(A)/Vol-1/247 dated 8/6/11 issued by the Defendant No. 6 (respondent No. 7) directing the Plaintiff to demolish the steps within 20 days of the issuance of the said Order. (ii) For a decree directing the Defendants not to interfere with steps constructed by the Plaintiff. (iii) For a decree up holding the Letter No. C/18016/9/2004-REV dated 7.1.2010 and the Order Memo No. C/13016/W-1/03-DISP/DTE(REV) dated 27.1.2010 issued by the Defendants Nos. 1-6 (respondents Nos. 2-7) 4 which is an order directing them to comply with the Order No. R/21011/65/92/DC(A)/212 dated 25.10.2005 (which stated that the dispute was settled on 21.10.2005 according to which the defendant was to shift her pipe towards her area and the plaintiff was to bring the railing of the wooden steps, going down to his lower floor, towards his area. 5. The suit was contested by the State Defendants 1-6 who, in their Written Statement, submitted that Revenue Department had conducted spot verification of the suit land a number of times; however, no settlement could be made between the Plaintiff and the Defendant No. 7. 5. The suit was contested by the State Defendants 1-6 who, in their Written Statement, submitted that Revenue Department had conducted spot verification of the suit land a number of times; however, no settlement could be made between the Plaintiff and the Defendant No. 7. As per verification report prepared by Shri Rinzamlova, Assistant Director of Survey (T) the Department had declared the suit land as ‘Vacant Land’ and the land claimed by the Plaintiff is beyond his LSC. He submitted that neither the Plaintiff’s LSC nor the LSC of the Defendant No. 7 had encroached upon each other. That the development of land beyond the area covered by their LSC is illegal. He further submitted that no settlement could be made between the Plaintiff and the Defendant No. 7 on the strength of the Letter No. C/18016/9/2004-REV dated 7.1.2010 and the Order Memo No. C/13016/W-1/03-DISP/DTE (REV) dated 27/1/10. 6. The defendant No. 7/appellant Smt. Vanlalnghaki contested the suit by submitting that the previous owner of LSC No. 68/1971 had encroached their land at the time when they were erecting their house post and therefore they had land dispute which was settled by letter vide Memo No. R/21011/1/15/88-DC(A) dated 18.8.1988, issued by the Assistant to the Deputy Commissioner i/c Revenue, Aizawl District, Aizawl. That in the year 2005, the Plaintiff/Respondent No. 1 purchased the land of Shri K. Hmingthanga and began to settle in the same year and as soon as he occupied the land covered by LSC No. 68/71 he constructed a footpath (Step) at the lower portion of the disputed areas against the settlement Order of the Revenue Department. The said footpath (step) constructed by the plaintiff obstructed the flowing of waste water which caused serious problem to her house and as a result of which waste water always flowed inside the defendants residence during the rainy season. Therefore Defendant No. 7 submitted complaint to the Defendant No. 1-6. In pursuance of the said complaint and after verification by the Revenue department, Defendant No. 4 issued Order Memo No. R/21011/65/92-DC(A)/212 dated 25.10.2005, wherein it was stated that the dispute was settled on 21.10.2005. In pursuance of the complaint made by the parties to the Revenue department and the said department conducted spot many times and as per the last verification of the then Asst. In pursuance of the complaint made by the parties to the Revenue department and the said department conducted spot many times and as per the last verification of the then Asst. Settlement Officer passed order vide memo No. R/21011/65/92-DC(A)/Vol-1/247 dated 8th June 2011 directing the plaintiff to demolish his constructed steps within 20 days from the date of order. Hence, the court should not grant the prayer or relief as sought by the plaintiff. 7. On the basis of the pleadings the court framed the following issues: (1) Whether there is cause of action in favour of the Plaintiff and against the Defendants ? (2) Whether the Plaintiff entitled to the relief claimed. If so, to what extent? (3) Whether the suit land is vacant or not? 8. During trial the plaintiff and the defendant no. 7 adduced their evidence, however the state defendants No 1-6 failed to appear before the court. A local Commissioner was appointed by the Ld. Trial Court vide Order dated 13.1.2016 to conduct spot verification to ascertain as to whether the LSC No. 68/1971 and LSC No. 829/86 encroached each other and whether there is a vacant government land measuring 0.40m between the said LSC No. 68/1971 and LSC No. 829/86. However, no report was submitted, as such the local commissioner was also not examined in the Court. The learned trial court then conducted a spot verification and decided the above issues in favour of the plaintiff. The learned trial court held that upon inspection of the Plaintiff’s building she found that the steps are essential and necessary part of the building and if it were demolished the lower part of the Plaintiff building would be rendered useless, without any approach route from all sides. That, the construction of the plaintiff building is such that there is no possibility of constructing the steps leading to lower floor anywhere else in the building and if the steps were constructed from the lower road (footpath) it would encroach on the public road. That, the construction of the plaintiff building is such that there is no possibility of constructing the steps leading to lower floor anywhere else in the building and if the steps were constructed from the lower road (footpath) it would encroach on the public road. Thus after consideration of the fact and circumstances of the case and after spot inspection of the disputed site she found no reason to uphold the Defendant No. 5 Order Memo No. R/21011/65/92-DC(A)/Vol-1 dated 21.4.2011, wherein the plaintiff was directed to demolish the steps within 20.5.11 and the Defendant No. 6 Order Memo No. R/21011/65/ 92-DC(A)/Vol-1/247 dated 8.6.2011 directing the Plaintiff to demolish his steps within 20 days of the issuance of the said order. After the spot verification she also held the view that the Plaintiff’s steps do not obstruct/disturb the Defendants No. 7 house in any manner whatsoever. Aggrieved by this finding of the trail court this appeal has been filed. 9. Mr. C. Lalfakzuala, learned Legal Aid counsel appearing on behalf of the appellant submits that the Ld. Trial Court erred in not upholding the spot verification report held on 31.5.2010 whereby the Defendant No. 6 vide its Order No. R/21011/65/92-DC(A)/ Vol-1/247 dated 8.6.2011 directed for demolition of steps constructed by the respondent No. 1. The Ld. Trial Court could not have come to a conclusion that there is no vacant land between the appellant and the respondent No. 1 consequent upon failure of the defendant Nos. 2 to 6 to appear and adduce their evidence before the Court. 10. The learned Legal Aid counsel submits that the Ld. Trial Court failed to consider and decide upon several verification reports conducted by the Govt. Officials. Inasmuch, the verification report dated 15.10.2007 conducted by Sh. H. Zabiaka, Surveyor, stated that there was no vacant land between the plaintiff and the defendant and in the verification report in No. C/13016/W-1/03/DISP/DTE(REV) of 5/10/2007 dated 15.10.2007, spot verification report dated 29.1.2008 No. C/18016/9/2004/REV/Pt dated 25.1.2011, it is observed there was a vacant land measuring 0.40 m which should be kept vacant since it belongs to the State Government. And that the steps constructed within the vacant and by the respondent No. 1 should be demolished. The ld. Trial Court is duty bound to examine the reports and decide upon the admissibility of the government documents even on its face value. 11. And that the steps constructed within the vacant and by the respondent No. 1 should be demolished. The ld. Trial Court is duty bound to examine the reports and decide upon the admissibility of the government documents even on its face value. 11. The learned Legal Aid counsel for the appellant further submits that the Ld. Trial Court erred in raising new issues which did not form part of the pleadings. That the Ld. Trial Court was on a mistaken notion that the lower floor of the plaintiff’s building could be approached only by construction of steps on the outer site of the building between the land of the plaintiff and the defendant. Further the Ld. Trial Court goes beyond the pleadings of the parties by holding that the plaintiff’s step do not obstruct/disturb the defendant’s No. 7 house instead of deciding the issue as to whether there was a vacant land or encroachment of rights vis-a-vis the parties. 12. That the Ld. Trial Court had gone beyond the substantial issue of whether there is vacant land between the plaintiffs building and the defendant No. 7 and has acted beyond its jurisdiction in conducting the spot verification which has made the court a witness in the case and therefore it is not appropriate to also be the judge in her own case. That the trial court has gone beyond its pleadings and that it was not the jurisdiction of the learned trial court to see whether water can seep into the building. The learned counsel has relied on the Apex Court’s decision in Kalyan Singh Chouhan vs. C.P. Joshi, (2011) 11 SCC 786 . 13. Mr. Joseph Lalchhanhima Renthlei, learned counsel for the respondent No. 1 on the other hand submits that the learned trial court acted within its jurisdiction in setting aside the orders of the state respondents no. 2-7 since Order Memo No. R/21011/65/92-DC(A)/ Vol-1 dated 21.4.2011, wherein the plaintiff was directed to demolish the steps within 20.5.2011 and the Defendant No. 6 Order Memo No. R/21011/65/92-DC(A)/Vol-1/247 dated 8.6.2011 directing the Plaintiff to demolish his steps within 20 days of the issuance of the said order. 2-7 since Order Memo No. R/21011/65/92-DC(A)/ Vol-1 dated 21.4.2011, wherein the plaintiff was directed to demolish the steps within 20.5.2011 and the Defendant No. 6 Order Memo No. R/21011/65/92-DC(A)/Vol-1/247 dated 8.6.2011 directing the Plaintiff to demolish his steps within 20 days of the issuance of the said order. The learned counsel for the respondent submits that the above orders were against the report made on 09.06.1988 when the disputed area was surveyed by the surveyor and against the order dated 25.10.2005 vide Memo No. R/21011/65/92-DC (A) which have not been cancelled, The learned counsel cite the Apex court decision in Patel Narshi Thakershi vs. Pradyuman Singhji Arjun Singhji, (1971) 3 SCC 844 and Kuntesh Gupta vs. Hindu Kanya Mahavidyalaya, (1987) 4 SCC 525 , wherein it was has held that a quasi-judicial authority cannot review its own order, unless the power of review is expressly conferred on it by the statute under which it derives its jurisdiction. in the presence of the counsels for both the parties. 14. The learned counsel for the respondent further submits that the both the parties had suggested that spot verification maybe done and accordingly the trial court had conducted the spot verification of the disputed landed area in the presence of the counsels for both the parties, and thereafter the trial court had conducted the spot verification of the disputed landed area and accordingly the learned trial court had passed the impugned Judgment and order dated 13.12.2017. That there was no provision that a Judge cannot conduct spot verification and the findings of the trial Court and the findings of the learned trial court ought to be accepted as just and fair. He has placed reliance on State of Maharashtra vs. Ramdas Shrinivas Nayak, (1982) 2 SCC 463 . That no new issues were framed by the learned trial court and the term ‘issues’ used in the impugned Judgment and order is actually points. 15. The learned Government Counsel submits that she has nothing to submit except what was mentioned in their written statement submitted in the learned trial court. 16. That no new issues were framed by the learned trial court and the term ‘issues’ used in the impugned Judgment and order is actually points. 15. The learned Government Counsel submits that she has nothing to submit except what was mentioned in their written statement submitted in the learned trial court. 16. Having considered the submissions made by the counsels for both the parties this court finds that the only point to be looked into is whether the learned trial court had erred in conducting a spot verification of the disputed area lying between the LSCs of the appellant and respondent No. 1 and erred in deciding the matter therein by setting aside the orders passed by the respondents No. 2-7 vide the letter No. C/18016/9/2004/REV/Pt dated 03.02.2011, the Order Memo No. R/21011/65/92-DC(A)/Vol-1 dated 21.4.2011 issued by the Defendant No. 5 (respondent No. 6), and Order Memo No. R/21011/65/92-DC(A)/ Vol-1/247 dated 8.6.2011 issued by the Defendant No. 6 (respondent No. 7). 17. It is seen that due to the conflicting reports made by the state respondents regarding the disputed area lying between the LSCs of the appellant and the respondent no. 1, a local Commissioner was appointed by the Ld. Trial Court vide Order dated 13.01.2016 to conduct spot verification to ascertain as to whether the LSC No. 68/1971 and LSC No. 829/86 encroached each other and whether there is a vacant government land measuring 0.40m between the said LSC No. 68/1971 and LSC No. 829/86. However, no report was submitted and the trial court then conducted the spot verification herself. At Para 20 of the Judgment the learned trial court has noted that “as suggested by the counsels and in the interest of the case, the court found it necessary to conduct spot verification.” Thus at the very outset it is seen that the counsels for both the parties had suggested that the spot verification be conducted and the counsels for both the parties were present when the spot verification was being conducted. There is no mention of any objection being raised by neither of the parties while the spot verification was being conducted thus it appears that both the parties had consented to the spot verification being conducted by the learned trial court. There is no mention of any objection being raised by neither of the parties while the spot verification was being conducted thus it appears that both the parties had consented to the spot verification being conducted by the learned trial court. It is also noted that the state defendants had failed to appear before the trial court to establish their stand regarding the contradictory orders issued by them with regards to the whether the LSC No. 68/1971 and LSC No. 829/86 encroached each other and whether there is a vacant government land measuring 0.40m between the said LSC No. 68/1971 and LSC No. 829/86. 18. The learned trial court at Para 20 of the judgment and order dated 13.12.2017 had observed as follows: “In my considered opinion and upon inspection of the Plaintiff’s building I found that the steps are essential and necessary part of the building and if it were demolished the lower part of the Plaintiff building would be rendered useless, without any approach route from all sides. Further, the construction of the plaintiff building in such that there is no possibility of constructing the steps leading to lower floor anywhere else in the building. Moreover, if the steps were constructed from the lower road (footpath) it would encroach on the public road. Hence, after careful consideration of the fact and circumstances of the case and after spot inspection of the disputed site and in view of the aforesaid justification. I find no reason to uphold the Defendant No. 5 Order Memo No. R/21011/65/92-DC(A)/ Vol-1 dated 21/4/11, wherein the plaintiff was directed to demolish the steps within 20.5.2011 and the Defendant No. 6 Order Memo No. R/21011/65/92-DC(A)/Vol-1/247 dated 8.6.2011 directing the Plaintiff to demolish his steps within 20 days of the issuance of the said order. After the spot verification I also hold the view that the Plaintiff’s steps do not obstruct/disturb the Defendants No. 7 house in any manner whatsoever.” 19. This court finds that since the spot verification was done on the suggestion and in the presence of the counsels for both the parties, the findings and observations made therein which is in the interest of the case to secure the ends of justice should not be questioned at a belated stage. This court finds that since the spot verification was done on the suggestion and in the presence of the counsels for both the parties, the findings and observations made therein which is in the interest of the case to secure the ends of justice should not be questioned at a belated stage. This court is also of the considered view that that issues framed by the learned trial court has been aptly dealt with in view of the observations made by the Learned trial court wherein whether there is a vacant government land measuring 0.40m between the said LSC No. 68/1971 and LSC No. 829/86 is no longer of significance especially so, when the state respondents have failed to appear before the learned trial court and have not pressed the matter in appeal. 20. In view of the above reasons I find no grounds to interfere with the Judgment and Order dated 13.12.2017, passed in Civil Suit No. 52/2011 by the Court of Sr. Civil Judge No. IV, Aizawl. 21. RFA No. 20 of 2018 accordingly is dismissed and stands disposed of.