LAIREN v. Laitonjam Warjeet Singh

Smt. Laitonjam Ongbi Sanahanbi Devi, aged about 78 years, W/o (Late) L. Gouragopal Singh of Uripok Khoisnam Leikai, P.O. & P.S. Imphal, Imphal West District, Manipur.

Shri Laitonjam Premannanda Singh, aged about 58 years S/o (Late) L. Gouragopal Singh of Uripok Khoisnam Leikai, P.O. & P.S. Imphal, Imphal West District, Manipur.

Shri Laitonjam Premchand Singh, aged about 55 years, S/o (late) L. Gouragopal Singh of Uripok Khoisnam Leikai, P.O. & P.S. Imphal, Imphal West District, Manipur.

Shri Laitonjam Jhaljit Singh, aged about 46 years, S/o (late) L. Gouragopal Singh of Uripok Khoisnam Leikai, P.O. & P.S. Imphal, Imphal West District, Manipur. …Respondents HON’BLE THE CHIEF JUSTICE MR. SANJAY KUMAR BEFORE

07.07.2022 The petitioner in this revision, filed under Article 227 of the Constitution, is the plaintiff in O.S. No. 16 of 2012 on the file of the Ld. Civil Judge (Junior Division), Imphal West-I. The said suit was filed by him for a perpetual injunction restraining the defendants from entering into and interfering with his peaceful possession and enjoyment of the suit schedule 2 property, an extent of .0074 hectares of homestead land under Patta Nos. 26, 166, 243 (part) (old), corresponding to New Patta No. 408/850, covered by C.S. Dag No. 2201/2391, situated at Village No. 87-Uripok. He filed Judl. Misc. Case No. 204 of 2012 in the said suit under Order 39 Rules 1 & 2 CPC for a temporary injunction restraining the defendants from entering into and interfering with his possession of the suit land. By order dated 14.09.2012, the Trial Court granted an ex parte temporary injunction in the first instance. However, by the later order dated

03.01.2017, the Trial Court vacated the injunction and directed the parties to maintain status quo over the suit land till disposal of the suit. Aggrieved thereby, the plaintiff filed Misc. Civil Appeal No. 4 of 2017 before the Ld. District Judge, Imphal West. By judgment and order dated 17.05.2017, the Appellate Court modified the order passed by the Trial Court, permitting the plaintiff to repair damaged portions of his three-storied building in a befitting manner, but directed him not to construct any structures so as to close the vacant ground floor portion till disposal of the suit. Aggrieved by the latter direction, the plaintiff is before this Court. Upon service notice, contesting respondents engaged Mr. O. Modhuchandra, learned counsel, to appear on their behalf. However, upon his unfortunate demise, Mr. A. Jagjit, learned counsel, stated that though he had signed the vakalatnama as an assisting counsel along with Mr. O. Modhuchandra, the leading counsel who was no more, he had no instructions to appear in the matter. He sought time to issue a notice to the respondents to take steps. This aspect was noted by this Court in its order dated 3

29.11.2021, making it clear that if the respondents failed to give appropriate instructions to Mr. A. Jagjit, learned counsel, the matter would be heard on merits. The matter was adjourned to 21.12.2021 to enable the respondents to make alternative arrangements, if they so chose. The matter was adjourned on

24.01.2022, on 24.02.2022 and again on 04.04.2022, but no steps were taken by the respondents. On the other hand, Mr. A. Jagjit, learned counsel, informed this Court on 19.04.2022 that the file had been taken away by the respondents after his legal notice was received by respondent No. 1. He therefore stated that he would not be appearing in the matter. Thereupon, arguments were advanced by Mr. Th. Mahira, learned counsel for the petitioner-plaintiff on 16.05.2022. However, this Court found from the record that the respondents-defendants had raised a counter-claim by way of their written statement filed before the Trial Court. The very same suit schedule property of .0074 hectares was shown by them in the said counter- claim. However, Mr. Th. Mahira, learned counsel, argued that the respondents- defendants were only interested in a pathway of the width of 11 feet. This argument could not be accepted as the area in the suit claim and the counter- claim tallied and it was not clear whether there would be any land left over in the vacant ground floor portion after excluding the 11 feet wide pathway. In these circumstances, this Court appointed Mr. Anjan Prasad Sahu, learned counsel, as an Advocate Commissioner to visit the suit schedule property to ascertain the fact for proper adjudication of this revision. Having undertaken the exercise, Mr. Anjan Prasad Sahu, Ld. Advocate Commissioner, filed Report dated 07.07.2022 along with Annexures R/1 to R/3. Therein, the Ld. Advocate 4 Commissioner stated that after measuring the subject vacant ground floor portion, he found that there was significant space left over after excluding the 11 feet pathway. He appended Annexure R/2 map, indicating that apart from the 11 feet passage leading from the gate, there is a separate extent measuring

12.ft. 2in./11ft. 1in. x 16ft./16ft. 4in. The photographs filed as Annexure R/3 bear out this fact. Perusal of the written statement filed by the respondents-defendants before the Trial Court, whereby they raised their counter-claim, reflects that they stated as follows: ‘the middle portion of size of 11 ft. (from north to south) on the east 14 ft. on the west and 39 ft. in length (from east to west) on the northern and southern side will be the common plot (courtyard)’. They further stated that there was to be a common gate of same breadth of the common plot in the straight line on the eastern side which was to be kept for egress and ingress. It is therefore clear that the counter-claim is with regard to egress and ingress through the 11 feet wide passageway which extends from the gate at the eastern end and they have no dispute with the portion which is on the southern side of the passageway, being an extent measuring 12.ft.

2in. on the east, 11ft. 1in. on the west, 16 ft. on the north and 16ft. 4in. on the south. Mr. Th. Mahira, learned counsel, states that the petitioner-plaintiff is interested in making construction in this extent at present and asserts that it is not even claimed by the respondents-defendants. As there is no representation for the respondents-defendants and they have not chosen to file a counter in this revision, despite the fact that they were duly represented till the expiry of Mr. O. Modhuchandra, learned counsel, this Court is inclined to accept the plea 5 of the petitioner-plaintiff that he would be entitled to make construction in this undisputed portion of land even during the pendency of the suit. The order dated 17.05.2017 passed by the Ld. District Judge, Imphal West, Manipur, in Misc. Civil Appeal No. 4 of 2017, is accordingly modified to the extent of permitting the petitioner-plaintiff to make construction in the aforestated undisputed extent of land, leaving vacant the 11 feet passageway in relation to which the respondents-defendants seek relief by way of their counter-claim.