Angom Sanamacha Singh v. Phijam Tiken Singh

….Appellants/Appellants/Defendants. - Versus -

1. Phijam Tiken Singh, aged about 67 years, s/o late Phijam Babudhon Singh,

2. Phijam Loken Singh, aged about 64 years, s/o late Phijam Parijat Singh

3. Phijam Ranjit Singh, aged about 50 years, s/o late Phijam Parijat Singh ... All are residents of Khurai Puthiba Leikai, P.O. Lamlong, P.S. Porompat, Imphal East District, Manipur-795010. …Respondents/Respondents/Plaintiffs. HON’BLE THE CHIEF JUSTICE MR. SANJAY KUMAR BEFORE

22.08.2022 [1] This second appeal arises out of the concurring judgment and order dated 01.07.2020 of the learned District Judge, Imphal East, in First Civil Appeal No. 1 of 2020, confirming the ex parte judgment and decree dated 27.05.2019 passed by the learned Civil Judge (Senior Division), Imphal East, in Original Suit No. 31 of 2017. The appellants were the defendants in the said suit. [2] Heard Mr. L. Birendrakumar, learned counsel for the appellants; and Mr. H. Nabachandra, learned counsel for the respondents. Parties shall hereinafter be referred to as arrayed in the suit. 2 [3] The plaintiffs filed the subject suit seeking a declaration that they were the joint owners of the Suit Schedule Land A; a declaration that the registered sale deed bearing No. 1454 dated 24.09.1976 and the register sale deed bearing No. 2568 dated 17.10.1975 were null and void; a declaration that the mutation in respect of the aforestated sale deeds was null and void; a permanent injunction restraining the defendants from closing the gate of the Ingkhol Lambi (pathway); eviction of the defendants from the Suit Schedule Land B; and for costs. [4] Though the defendants entered appearance before the Trial Court and filed their vakalatnama in October, 2017, the suit proceeded ex parte against them. Their applications to file a written statement-cum-counter claim with delay were rejected and they chose not to take the matter further. The plaintiffs marked four exhibits in evidence and examined three witnesses. Plaintiff No. 2 was examined as PW No. 1 and two relations were examined as PW Nos. 2 & 3. The Trial Court settled 4 points for determination: (1) Whether the plaintiffs have got Suit Land A as share of late Babudhon Singh or not? (2) Whether the defendants are permissive possessors of the Suit Land B or not? (3) Whether the defendants blocked the Ingkhol Lambi from 06.01.2017? (4) Whether the plaintiffs are entitled to the reliefs they claimed. [5] By the ex parte judgment and decree dated 27.05.2019, the Trial Court opined as follows on the above points for determination: On Point No. 1, the Trial Court held that the plaintiffs, being the Class-1 legal heirs of late Phijam Babudhon Singh, inherited a portion of the Suit Schedule Land A but not the whole extent of 0.58 acre claimed by them. The Trial Court concluded that they 3 had inherited 0.355 acre only. On Point No. 2, the Trial Court held that late Phijam Babudhon, the father of the plaintiffs, sold a portion of the land admeasuring 0.17 acre out of the entire homestead land to the father of the defendants in the years 1975 and 1976 by executing two registered sale deeds, viz., registered sale deed No. 2568 dated 17.10.1975 and registered sale deed No. 1454 dated 24.09.1976. The Trial Court held that these documents were authentic, attracting the presumption of genuineness under Section 90 of the Indian Evidence Act, 1872, as they were more than 30 years old. In consequence, the Trial Court concluded that, as the land admeasuring 0.17 acre was sold to the father of the defendants, they were not in permissive possession of the said land, as claimed by the plaintiffs. As regards Point No. 3, the Trial Court believed the evidence of the plaintiffs’ witnesses that the defendants had blocked the Inkhol Lambi on 06.01.2017 by wood and tin and accordingly held so. On Point No. 4, the Trial Court held that the plaintiffs were only entitled to seek relief in relation to the closing/locking of the Inkhol Lambi and restrained the defendants from doing so, directing that the blockage should be removed with immediate effect. The plaintiffs were given free access to their homestead land through the Inkhol Lambi, which they had been using since a long time. The rest of the plaint prayers were rejected. [6] Aggrieved by this ex parte judgment and decree, the defendants approached the First Appellate Court. Having condoned the delay on their part in doing so, the First Appellate Court considered the matter on merits, but held against them by the judgment and order dated 01.07.2020. The First Appellate Court took note of the fact that the plaintiffs had not chosen to file an appeal 4 and accordingly held that Point Nos. 1 & 2, which had been decided against the plaintiffs, did not require examination. As regards Point No. 3, with regard to blockage of the Inkhol Lambi on 06.01.2017, the First Appellate Court took note of the oral evidence adduced before the Trial Court and held that no grounds were made out to interfere with the decision of the Trial Court on that count. In consequence, the First Appellate Court did not interfere with the single relief granted by the Trial Court and confirmed its judgment and decree. [7] Mr. L. Birendrakumar, learned counsel, would contend that there is no possibility of the plaintiffs claiming any easementary right, as there is no road abutting the land sold to the defendants under the two registered sale deeds, whereby there could be ingress and egress therefrom to the land of the plaintiffs, through the land sold to the defendants. Learned counsel would assert that it is the defendants who pass through the land of the plaintiffs to reach the public road. However, perusal of Schedules A & B attached to the suit plaint reflects that Suit Schedule Land A is an extent of 0.58 acre and it is bounded on all four sides by homestead lands. Admittedly, an extent of 0.17 acre out of this larger extent, shown as Suit Schedule Land B, was sold to the defendants and the same is also shown to be bounded on all four sides by homestead lands. Though Mr. L. Birendrakumar, learned counsel, would contend that the suit schedules were shown incorrectly, he fairly concedes that the defendants did not even cross-examine the witnesses of the plaintiffs to ascertain whether there was any public road abutting the land of the plaintiffs, as claimed by them. Thus, as matter stand, there is no indication of any road abutting the larger extent or the smaller extent of lands shown in the suit schedule, but it is the evidence of 5 all the witnesses for the plaintiffs that there is an Inkhol Lambi and the same was blocked by the defendants on 06.01.2017. It is possible that there is an easement through the neighbouring homestead land. In any event, the question of the defendants blocking the Inkhol Lambi would not arise unless the plaintiffs were using the same as a point of ingress and egress. That being so, as the plaintiffs clearly proved the factum of their easementary right, the Courts below did not err in recognizing the same and giving effect to it. [8] Mr. L. Birendrakumar, learned counsel, would further contend that the First Appellate Court erred in not giving a finding as to the title of the defendants. However, as already noted, it was the plaintiffs who suffered an adverse finding on this point before the Trial Court but they did not choose to challenge the same. Therefore, it was not necessary for the First Appellate Court to go into the issue again and reiterate the finding in favour of the defendants. In that view of the matter, the questions of law sought to be framed in this second appeal with regard to alleged misconstruction of documents and legal propositions do not even arise. The case squarely turns upon the question of fact as to whether the plaintiffs established their easementary right. As they were found to have done so by both the Courts below, that question of fact stands settled. No question of law, much less a substantial question of law, therefore arises for consideration in this second appeal. The second appeal is accordingly dismissed at the admission stage.