Chaldailova vs Zapari and ors

MICHAEL ZOTHANKHUMA

Heard Mr. T. Lalnunsiama, learned counsel for the appellant. Also heard Mrs. Dinari T.Azyu, learned counsel for the respondent Nos. 1 and 2 and

Mr. Samuel Vanlalhriata Chhangte, learned counsel for the respondent Nos. 3 to 6.

The facts of the case in brief is that the appellant and the respondent No. 7 were the owners of land covered by Village Council House Pass No.

222/1972, after they had purchased the same from one Sh. Neihkima. A dispute arose between the appellant and the respondent No. 7 (who are

brothers) on the one hand and father of the respondent Nos. 1 and 2, i.e., Sh. Laldanglova on the other side. Sh. Laldanglova claimed the same land

covered by House Pass No. 222/1972 on the ground that he had been issued Periodic Patta No. 319/1972 against the same plot of land.

The appellant and the respondent No. 7 thereafter filed Misc. Case No. 20/1986 in the Court of the Addl. Sub-ordinate District Council Court,

Aizawl against the father of the respondent Nos. 1 and 2. The Court of the Addl. Sub-ordinate District Council Court (in short, Addl. SDCC) disposed

of Misc. Case No. 20/1986 vide Judgment & Order dated 19.05.1987, by holding that the Village Council House Pass No. 222/1972 (in short V.C

Pass No. 222/1972) was a valid pass, as it was issued as per the Mizo District Council House Site Act, 1953. It further held that the V.C Pass No.

222/1972 would stand vis-Ã -vis Periodic Patta No. 319/1972 and held that as the Periodic Patta No. 319/1972 covered a larger plot of land, the area

of the V.C Pass No. 222/1972 should be sliced out from the Periodic Patta No. 319/1972. Accordingly, the Addl. SDCC decided not to cancel

Periodic Patta No. 319/1972.

The operative portion of the Judgment & Order dated 19.05.1987 passed by the Addl. SDCC in Misc. Case No. 20/1986 is reproduced below:-

“Both parties are summoned in the Court with all their witnesses and documentary evidences. After careful scrutiny of the cases only one point is

framed for determination of the case as follows:-

1) which pass is to be upheld between the two Passes?

Both parties produced their respective passes. The plaintiff pass is house site pass issued by Village Council President, Chaltlang. This is valid as per

Mizo District Council House Site Acts 1953 Rule 3 Sub-section (1)(2)(3). Defendant’s pass is for agricultural purposes given under Periodic Patta

issued by Development Officer Mizo District Council. Within Town Area house-site should be given importance than agricultural land irrespective of

the issuing authority as per Mizo District Council House Site Acts, 1953 Rule 3 Sub-section (1)(2)(3).

Hence, I held that as per Act and Rule cited above the plaintiff’s House Site Pass must stand. Defendants Period pass covers a lot of land and

hence I do not cancel the defendants pass as a whole but the area of House Site of Plaintiff must be cut out from the defendant’s periodic

Patta.â€​

That in the meantime, Periodic Patta No. 319/1972 was converted into 10 House Passes. One House Pass was given to the respondent Nos. 1 and

2 by their father Sh. Laldanglova and some of the other House Passes were donated for a church and for a school building. The House Pass given to

the respondent Nos. 1 and 2 by their father was House Pass No. 178/1986, which was subsequently converted into LSC No. AZL 3736/1986 and

AZL 4123/1986.

As the appellant and the respondent No. 7 were apparently occupying the land covered by LSC No. AZL 3736/1986 and AZL 4123/1986, the

respondent Nos. 1 and 2 filed Civil Suit No. 5/2004 in the Court of the Senior Civil Judge, Aizawl praying for eviction of the appellant and the

respondent No. 7. The other prayer made was for a decree that the Judgment & Order dated 19.05.1987 passed by the Addl. Sub-ordinate District

Council Court in Misc. Case No. 20/1986 was not binding upon the respondent Nos. 1 and 2. They also prayed for declaring the V.C Pass No.

222/1972 as void and for a decree declaring them as title holders of the land covered by LSC No. AZL 3736/1986 and AZL 4123/1986.

The Court of the Senior Civil Judge, Aizawl disposed of Civil Suit No. 5/2004 vide Judgment & Order dated 13.06.2013, by holding that the plea of

res judicata raised by the appellant and the respondent No. 7 against the respondent Nos. 1 and 2 would not be applicable, as the respondent Nos. 1

and 2 were not parties in Misc. Case No. 20/1986, which was disposed off by the Addl. SDCC. The Trial Court also held that since the Judgment &

Order dated 19.05.1987 passed in Misc. Case No. 20/1986 had not been executed within 12 years, as per Article 136 of the Schedule to the Limitation

Act, 1963, the validity of the V.C Pass No. 222/1972 could not be taken into consideration. The third ground for allowing the Civil Suit No. 5/2004 by

the Court of the Senior Civil Judge, Aizawl, was that, as the appellant and the respondent No. 7 could not produce the Village Council Pass No.

222/1972 before the Court, the Trial Court had no option but to rely upon the LSCs submitted by the plaintiffs. The Court of the Senior Civil Judge thus

held as follows:-

“In light of all the evidence mentioned above, this Court has come to the conclusion that the plaintiffs, Zapari and Zachunglura are the rightful

owners of LSCs bearing Nos. AZL 3736 of 1986 and AZL 4123 of 1986 respectively and that the claim of the defendants, Chaldailova and Rokunga

are illegal are void insofar as their claim is concerned and they are herewith ordered to vacate the said land.

It is also ordered that the Judgment & Order passed by the Subordinate District Council Court in Misc Case No. 29 of 1986 is not binding as it has

breached mandate of the Limitation Act.

Also, the pass issued by the Village Council in favour of the defendants 5 and 6 are declared to be null and void.â€​

It may be pertinent to mention that due to a typographical error, the Misc. Case No. 20/1986 was erroneously recorded as 29/1986.

The appellant being aggrieved by the Judgment dated 13.06.2013 passed by the Court of the Senior Civil Judge in Civil Suit No. 5/2004, filed RFA

No. 44/2013 in the Court of the Addl. District Judge, Aizawl.

The Court of the Addl. District Judge, Aizawl dismissed RFA No. 44/2013, vide Order dated 30.05.2014 and upheld the Judgment & Order of the

Senior Civil Judge passed in Civil Suit No. 5/2004. The 1st Appellate Court upheld the grounds taken by the Trial Court while disposing Civil Suit No.

5/2004 in the Judgment dated 13.06.2013. The 1st Appellate Court further held that the principles of res judicata was not applicable to the present

case, as at the time of passing of the Judgment & Order dated 19.05.1987 in Misc. Case No. 20/1986, the respondent Nos. 1 and 2 were already in

possession of the LSC No. AZL 3736/1986 and AZL 4123/1986.

The appellant being aggrieved by the judgments given by the Courts below has filed the present Regular Second Appeal.

This Court, vide Order dated 12.09.2014, had formulated the following substantial questions of law:-

“1) Whether in view of the judgment and order dated 19.5.1987 in Misc. Case No. 20/1986 passed by the learned Magistrate, Additional Sub-

ordinate District Council Court, Aizawl in between the predecessor-in-interest of the present plaintiff as well as of the private defendants, the learned

Courts below are correct in holding that the present suit by the plaintiff is not hit by the principles of res judicata on the ground that though the subject

matter in dispute remains the same, State Government and its functionaries, arrayed as defendant Nos. 1 to 4, were not parties in the earlier case?

2) Whether in absence of any challenge made by the predecessor-in-interest of the plaintiff to the findings recorded against him in the judgment and

order dated 19.5.1987 passed by the learned Magistrate, Additional Sub-ordinate District Council Court, Aizawl in Misc. Case No. 20/1986, the

plaintiff could have prayed for a decree for setting aside the judgment and order rendered in Misc. Case No. 20/1986?

3) Whether the learned lower Courts below are correct in holding that the findings recorded in the judgment and order dated 19.5.1987 passed by the

learned Magistrate, Additional Sub-ordinate District Council Court, Aizawl in Misc. Case No. 20/1986 will not bind the successor-in-interest of the

defendant of Misc. Case No. 20/1986?â€​

Mr. Samuel Vanlalhriata Chhangte, learned counsel for the respondent Nos. 3 to 6 submits that the case of the respondent Nos. 1 and 2 is hit by

the principles of res judicata as the matter in issue has already been decided by the Addl. SDCC in Misc. Case No. 20/1986. He further submits that

though the Judgment & Order passed in Misc. Case No. 20/1986 has attained finality, the said Judgment & Order cannot be executed until and unless

the boundary description of the V.C Pass No. 222/1972 is produced by the appellant.

With regard to the dispute between the parties, i.e., the issue of supremacy/validity of the V.C Pass No. 222/1972 vis-Ã -vis Periodic Patta No.

319/1972 has been decided by the Court of the Addl. Sub-ordinate District Council Court, Aizawl in Misc. Case No. 20/1986, vide Judgment & Order

dated 19.05.1987, wherein it has held that the V.C House Pass No. 222/1972 is valid and must stand vis-Ã -vis Periodic Patta No. 319/1972. This

Judgment & Order dated 19. 05.1987 passed in Misc. Case No. 20/1986 has not been put to challenge till date and as such, the same has attained

finality as on date. As the area of Periodic Patta No. 319/1972 is more than the area covered by the V.C Pass No. 222/1972, the Addl. SDCC had

directed that the land covered by the V.C Pass No. 222/1972 should be sliced out from the Periodic Patta No. 319/1972. What logically follows from

the above is that if Periodic Patta No. 319/1972 is converted/superceded into/by other Passes or LSCs, the land covered by the V.C Pass No.

222/1972 will have to be sliced out from the subsequent Passes/LSCs, if they have their origin from the Periodic Patta No. 319/1972.

With respect to the LSC No. AZL 3736/1986 and AZL 4123/1986, it is not disputed by the parties that the same has its origin from Periodic Patta

No. 319/1972. Accordingly, in view of the Judgment & Order dated 19.05.1987 passed in Misc. Case No. 20/1986, if there is any over lapping of land

between the boundary description of V.C Pass No. 222/1972 and the above 2 LSCs, the boundary description of the V.C Pass No. 222/1972 shall

prevail. The above being said, the respondent Nos. 1 and 2 ownership and title over the land covered by the 2 LSCs are on the basis of being

successors-in-interest against the land originally covered by Periodic Patta No. 319/1972.

In the case of Pandit Ishwardas Vs. State of Madhya Pradesh & Ors, reported in (1979) 4 SCC 163, the Apex Court has held that in order to

sustain the plea of res judicata, it is not necessary that all the parties to the two litigations must be common. All that is necessary is that the issue

should be between the same parties or between parties under whom they or any of them make a claim. In the present case, the issue was with regard

to the validity of the Village Council Pass No. 222/1972 vis-Ã -vis Periodic Patta No. 319/1972, which was originally in the name of the father of the

respondent Nos. 1 & 2. As the issue has been decided by the Court of the Addl. Subordinate District Council Court in Misc. Case No. 20/1986 vide

Judgment & Order dated 19.05.1987, the decision taken therein is binding upon the parties herein, as the rights of the respondent Nos. 1 and 2, on the

basis of the 2 LSCs have originated from Periodic Patta No. 319/1972. Accordingly, the issue with regard to the validity of the V.C Pass No.

222/1972 vis-Ã -vis the 2 LSCs, which are born from Periodic Patta No. 319/1972, cannot be re-agitated and the principles of constructive res judicata

would be applicable to the case in hand.

As the Addl. Sub-ordinate District Council Court had declared the Village Council Pass No. 222/1972 as valid in Misc. Case No. 20/1986 vis-Ã -

vis Periodic Patta No. 319/1972, the Court of the Senior Civil Judge could not have taken a contrary view, as the Judgment & Order dated 19.05.1987

passed in Misc. Case No. 20/1986 had attained finality. Further, the Court of the Senior Civil Judge not being an Appellate Court over the Addl.

SDCC, judicial propriety and discipline required the Court of the Senior Civil Judge to respect the Judgment & Order dated 19. 05.1987 passed in

Misc. Case No. 20/1986.

Besides the above, though the Addl. SDCC had disposed off Misc. Case No. 20/1986 on 19. 05.1987, there is nothing to show that the fact that

LSC Nos. AZL 3736/1986 and AZL 4123/1986 had been issued to the respondent Nos. 1 & 2 had been brought to the notice of the Addl. Sub-

ordinate District Council Court, Aizawl in Misc. Case No. 20/1986. It was the duty of the parties to put all facts before the Court and they cannot be

allowed to play hide and seek with the Court. The above being said, this Court finds that the Judgment & Order passed by the Addl. Sub-ordinate

District Council Court in Misc. Case No. 20/1986 is binding upon the parties herein.

In view of the reasons stated above, this Court finds that the reasoning of the Lower Courts below are perverse and accordingly, the impugned

Judgment & Order passed in Civil Suit No. 5/2004 and the impugned Order passed in RFA No. 44/2013 are hereby set aside.

The Judgment & Order dated 19.05.1987 in Misc. Case No. 20/1986 having attained finality, the execution of the Judgment & Order dated

19.05.1987 passed by the Addl. Sub-ordinate District Council Court in Misc. Case No. 20/1986 will have to be made as per the boundary description

given in the V.C House Pass No. 222/1972. The boundary description of the V.C Pass No. 222/1972 is required, as it is unclear as on date, as to

whether the boundary description in the V.C House Pass No. 222/1972 overlaps the lands covered by the 2 LSCs mentioned above or the other

portions of the original Periodic Patta No. 319/1972. Till the land covered by V.C Pass No. 222/1972 is sliced out from the original Periodic Patta No.

319/1972 or the subsequent Passes/LSCs born out of Periodic Patta No. 319/1972, as per the Judgment & Order dated 19.05.1987 in Misc. Case No.

20/1986, the appellant and the respondent No. 7 shall not disturb the peaceful possession of the land covered by the 2 LSCs, which is presently in the

possession of the respondent Nos. 1 and 2.

The appeal is accordingly allowed. Send back the LCRs.