Hmingthankima and Anr v. Sapbela and 3 Ors.

Judgment

14.12.2023 JUDGMENT & ORDER (CAV) Page No.# 2/30 Heard Mr. F. Lalengliana, learned counsel for the appellants. Also heard Mr. C. Lalramzauva, learned senior counsel assisted by Ms. Lalrochami, learned counsel for the respondent No. 1/plaintiff and Mrs. Mary L. Khiangte, learned Government Advocate for the respondent Nos. 2 to 4.

#2. This RSA No. 7/2015 is filed under Section 17(2) of the Mizoram Civil Courts Act, 2005 read with Section 100 of CPC against the Judgment and Order dated 29.04.2015 in RFA No. 37/2014 arising out of Declaratory Suit No. 6/2004 passed by the Hon’ble Court of Addl. District Judge, Aizawl Judicial District.

#3. The case of the plaintiff/respondent No. 1 is that his late father i.e., Sh. Zabanga had purchased the suit land covered by LSC No. 201/1975 in the year 1959 jointly with his friends, i.e., Sh. Denghuaia and Sh. Hrangluaia (L) from Sh. Tebawnga. Since, the plaintiff/respondent No.1’s mother had already died, the plaintiff/respondent No.1’s late father alongwith the plaintiff/respondent No. 1 and his other siblings occupied the suit land. In the year 1962, the plaintiff/respondent No. 1’s father passed away and since the plaintiff/respondent No. 1 and his other siblings were very young, their grandfather Sh. Suka looked after them. Later on, Sh. Suka mutated the suit land to his name under House Pass No. 91/1965 and thereafter, converted the same to Land Settlement Certificate under LSC No. 201/1975. Sh. Suka died on

06.01.1985. The defendant No. 1, who is the son of defendant No. 2, i.e., daughter of Sh. Suka, without the knowledge of the plaintiff/respondent No. 1 and the other surviving children of Sh. Suka had stolen the LSC No. 201/1975 and mutated the same to the name of the defendant No. 1. Thereafter, the Page No.# 3/30 defendant Nos. 1 and 2 had sold the suit land to the defendant No. 3. It appears from the plaint that though the plaintiff/respondent No. 1 had earlier submitted the heirship application before the Sub-District Council Court, Aizawl, in H.C. Case No. 388 of 2003 praying for declaring himself as the legal heir of his late father and grandfather in respect of LSC No. 201/1975, the said heirship application was disposed of vide Order dated 21.08.2003 for submitting the

plaint in a proper form. Though the plaintiff/respondent No. 1 had filed a fresh suit, the same was withdrawn with liberty to file a fresh vide the Order dated

22.09.2004. Admittedly, no further fresh suit has been filed till date. It is the case of the plaintiff/respondent No. 1 that since the suit land was purchased by his late father Sh. Zabanga and he being the youngest son of Sh. Zabanga, has every right to inherit the suit land and the defendant Nos. 1 and 2 have cheated him and converted the suit land to their own names.

#4. Accordingly, the plaintiff/respondent No. 1 filed the declaratory suit claiming inter-alia, for a decree declaring that the mutation of LSC No. 201/1975 located at Tuikual ‘S’ by the defendants Nos. 4 - 6 in favour of the defendant No. 1 and thereafter, in the name of the defendant No. 3 is illegal and null and void and for a decree declaring that the suit land covered by LSC No. 201/1975 was purchased by Sh. Zabanga (L) and the plaintiff/respondent No. 1 being the son of Sh. Zabanga (L) is the rightful and legal owner of the suit land covered by LSC No. 201/1975.

#5. On the other hand, the case of the defendants/appellants is that the suit land was never purchased by the plaintiff/respondent No. 1’s father Sh. Zabanga and it was purchased by defendant No. 2’s father Sh. Suka, which is evident from the House Pass No. 91/1965. In the said House Pass, it was clearly Page No.# 4/30 mentioned that the suit land was purchased by Sh. Suka from Sh. Tebawnga, C.I.D. The pass issued by the Revenue Officer, Mizoram District Council dated

28.10.1965 clearly stated that the land was purchased by Sh. Suka from Sh. Tebawnga and that the House Pass No. 91/1965 was later on converted to Land Settlement Certificate No. 201/1975. However, in the meantime, Sh. Suka died on 06.01.1985 and since the defendant No. 2 was looking after Sh. Suka till his dead, Sh. Suka gifted the suit land to the defendant No. 1, who is the son of defendant No. 2. On the basis of the aforesaid gift deed, the defendants claim that the suit land was gifted to defendant No. 1 by the original settlement holder Sh. Suka and hence, they are the rightful owner of the said suit land.

#6. The Trial Court framed the following issues:- “(i). Whether the suit is maintainable in its present form and style or not? (ii). Whether the suit is bad for non-observance of Section 80 CPC? (iii). Whether the suit is barred by Limitation, Doctrine of Estoppels, Acquiescence and Waiver? (iv). Whether the land covered by LSC No. 201/1975 was purchased by Sh. Zabanga (L), father of the plaintiff? (v). Whether the plaintiff is entitled to the relief claimed. If so, to what extent?”

#7. The plaintiff/respondent No. 1 adduced 5 witnesses including himself whereas the defendant Nos. 1 and 2 adduced two witnesses before the Trial Court whereas the State defendant denied production of witness to support Page No.# 5/30 their evidence. Both the contesting parties also exhibited documents in support of their respective claims. The Trial Court while adjudicating the Issue No. 4, i.e., whether the land covered by LSC No. 201/1975 was purchased by Sh. Zabanga (L) father of the plaintiff/respondent No. 1, relied on the evidences of the PW Nos. 1, 2 and 5, who are the sons and daughter of Sh. Zabanga, who has stated in their depositions that the suit land was jointly purchased by their late father alongwith his two friends in the year 1959 from Sh. Tebawnga. The said statement was supported by other witnesses namely, Smt. Thangzuali (cousin brother of the plaintiff) and Smt. Lalremsiami, wife of Sh. Suka’s grandson namely Sh. Zothansanga.

#8. The plaintiff/respondent No. 1 also annexed a witness statement, which was exhibited as Exhibit P-1 to show that the suit land was purchased by Sh. Zabanga and after the death of Sh. Zabanga, the same continued to be looked after by his grandfather i.e., Sh. Suka, who in turn had caused issuance of the Pass in his name.

#9. The Trial Court on the basis of the said Exhibit P-1 came to the conclusion that the suit land was purchased by Sh. Zabanga (father of the plaintiff). The Trial Court accordingly decreed the suit by declaring that the suit land covered by LSC No. 201/1975 was initially purchased by Sh. Zabanga (L) and since the said Sh. Zabanga had already died, the plaintiff/respondent No. 1 being the son of Sh. Zabanga is the rightful and legal owner of the land covered by LSC No. 201/1975.

#10. Accordingly, aggrieved by the said Judgment and Order dated 10.11.2014 passed by the Trial Court, the defendants/appellants have filed an appeal being Page No.# 6/30 RFA No. 37/2014. The Appellate Court vide its Judgment and Order dated

29.04.2015 agreed with the views of the Trial Court and held that the suit land was initially purchased by Sh. Zabanga and since Sh. Zabanga had already died, the plaintiff/respondent No. 1 being the son of Sh. Zabanga is the rightful and legal owner of the land covered by LSC No. 201/1975. Being aggrieved by the aforesaid Judgment and Order, the defendants/appellants preferred the present second appeal.

#11. This Court on 10.09.2015 formulated the following substantial questions of law: “i) whether the finding of the Court below was perverse in declaring that the father of the respondent No. 1 had bought the suit land while the findings of the First Appellate Court is that the document HRIATPUINA (Exhibit P-1) was a manufactured document. ii) Whether the suit was barred by law of limitation as the title to the land was never in the name of the father of the respondent No. 1 at any time. iii) whether the title and ownership of land could be conveyed/declared by the Court below in favour of respondent No. 1 in view of the fact that the father of the respondent No. 1 had expired in the year 1962, and the suit land was never mutated in the name of the father of the respondent No. 1 before the land was recorded in the name of the appellant’s grand- father Suka (L) in 1965 vide House Pass No. 91 of 1965.”

#12. Mr. F. Lalengliana, learned counsel appearing appellants/defendants, as regard, the first substantial question of law as whether the finding of the Appellate Court was perverse in declaring that the Page No.# 7/30 plaintiff/respondent No. 1’s father had purchased the suit land while the plaintiff/respondent No. 1 in his cross examination admitted Exhibit P-1 was manufactured at the time of filing of the suit, argued that the said Exhibit P-1, which the plaintiff/respondent No. 1 admits to be a manufactured document at the time of filing of the suit cannot override title and ownership of the suit in favour of Sh. Suka granted under the House Pass No. 91/1965, which was later converted to LSC No. 201/1975 as per law.

#13. Mr. F. Lalengliana, learned counsel, as regard, the substantial question of law of limitation, argued that the plaintiff/respondent No. 1 was fully aware of the fact that his grandfather Sh. Suka was holding the Land Settlement Certificate in his name as regards the subject suit land. The plaintiff/respondent No. 1 also was solely aware of the fact that there was no certificate in the name of his father and as evident from the evidence-in-chief of the plaintiff, the plaintiff/ respondent No. 1 did not do anything in order to obtain pass in respect of the suit land since 1962 to 2003.

#14. Mr. F. Lalengliana, learned counsel further argued that the plaintiff/respondent No. 1 remained silent since the year 1962 till the year 2003 for about 40 long years, which is also accepted by him in his cross examination and as such, the suit is hopelessly barred by the law of limitation. By referring to Section 65 of the Limitation Act, Mr. F. Lalengliana, learned counsel further argued that the plaintiff/respondent No. 1 has 12 years to sue when the possession of the plaintiff/respondent No. 1 become adverse to the plaintiff/respondent No. 1 and under Section 59 of the said Act, the plaintiff/respondent No. 1 has 3 years to sue the case and fact and title of the plaintiff/respondent No. 1 to have the instrument or decree cancelled or set Page No.# 8/30 aside or the contract resented first become known to him. The plaintiff/respondent No. 1 keeping silent even after the death of his grandfather Sh. Suka on 06.01.1985, who is the title holder of the suit land, is estoppel by the doctrine of acquiescence and hence, the suit is barred by limitation. In support of the aforesaid, Mr. F. Lalengliana, learned counsel relied upon the following decisions:- (i) B.L. Sreedhar & Ors. Vs. K.M. Munireddy (Dead) & Ors passed by the Supreme Court in Civil Appeal No. 2971/1995 and 1972/1995. (ii) Sailala vs. Ngurtaiveli, reported in 1980 AIR (Gauhati) 70.

#15. Mr. F. Lalengliana, learned counsel, as regard, the third substantial question of law relating to the title and ownership of the land in question, argued that it was admitted by the plaintiff/respondent No. 1 that land pass was never issued in the name of his father and the concerned authority issued House Pass No. 91/1965 in the name of his grandfather Sh. Suka in the year 1965, which was later on converted into LSC No. 201/1975 in terms of the Mizo District (Land and Revenue) Act, 1956. By referring to Section 7 of the said Act, he further argued that the settlement holder has heritable and transferable right over the suit land and since the appellants/defendants were taking care of title holder Sh. Suka till his dead, he is entitled to inherit the said suit land.

#16. In support of the aforesaid submission, he relies upon the decision of the Hon’ble Supreme Court in the case of Smt. Kaithuami (L) through LRS Vs. Smt. Ralliani & Ors decided on 26.04.2022 in Civil Appeal No. 7159-7160/2008. Page No.# 9/30

#17. As such, Mr. F. Lalengliana, learned counsel submits that the findings of both the Trial Court and the First Appellate Court to the effect that the plaintiff/respondent No. 1’s father is the purchaser of the suit land, is without any evidence whatsoever and hence, the said findings are totally perverse and therefore, this Court while exercising its power under Section 100 CPC is entitled to reverse the concurrent findings of the First Appellate Court and the Trial Court.

#18. In support of the aforesaid submission, he relies upon the following decisions of the Hon’ble Supreme Court:- (i) Keshav & Others Vs. Gian Chand & Others, 28.08.2017 in Civil Appeal No. (S) 11059/2017. (ii) Kashmir Singh Vs. Harnam Singh & Another decided on 03.03.2008 in Appeal (C) No. 1036/2002.

#19. On the other hand, Mr. C. Lalramzauva, learned senior counsel assisted by Ms. Lalrochami, learned counsel appearing on behalf of the respondent No. 1/plaintiff submits that there being concurrent findings of fact by the Trial Court and the First Appellate Court to the effect that the suit land was purchased by the plaintiff/respondent No. 1’s father in the year 1959 and that the suit land continued to be under the occupation of Sh. Suka, grandfather of the plaintiff/respondent No. 1 as Sh. Zabanga had prematurely died in the year 1962 and though Sh. Suka had obtained House Pass No. 91/1965 in his name which was subsequently converted to LSC No. 201/1975 in respect of the suit land, the plaintiff/respondent No. 1 being the son of Sh. Zabanga had been considered and held to be a rightful/inheritor of the suit property, the Second Appellate Court is bound by such concurrent findings of fact by the Trial Court and the First Appellate Court and as such, cannot be re-opened in second appeal. In support of the aforesaid submission, he relied upon the following Apex Court decisions in the case of:- Page No.# 10/30 (i) Deity Pattabhiramaswamy Vs. S. Hanymayya and Others, reported in AIR 1959 SC 57 (para 13) (ii) Mst. Kharbuja Kuer Vs. Jangbahadur Rai and Others, reported in AIR 1963 SC 1203 (para 10)