Hillary N. Sangma vs Hallimish N. Sangma

V.D. Gyani, Actg. C.J.

This appeal u/s 3 of the Assam High Court Jurisdiction over District Council Courts Act, 1954 is directed against the judgment dated 3.11.89 passed by the Judge of the District Council Court, Khasi Hills, Shillong in Misc. Appeal No. 13/82, thereby allowing the appeal and setting aside the judgment and order dated 3.11.89 passed by Presiding Officer, Subordinate District Court.

Few basic facts necessary for disposal of this appeal may now be noted. The Appellant and the Respondents are sisters from same grand-mother. The present Appellant first filed a suit for declaration ofher right and title over the suit land covered under periodic patta No. 16 Dag No. 112 (where Appellant is residing) vide Title Suit No. 9 of 1969 before the Judicial Officer, subordinate District Council Court at Tura. The Appellant had to file the Title Suit because the Respondent Smt. Hallimish Sangma secretly mutated in her name, the plots covered under periodic Patta No. 16 Dag No. 112 and Dag No. 121. These two plots were originally standing in the name of Shri Wilson Marak, father of Appellant Shri Wilson Marak without the knowledge and consent of his wife Rase Sangma and his only daughter, the Appellant transferred the title of the plot covered under Dag No. 121 of P. Patta No. 16 to Smt. Khimjing Sangma, the grandmother of both the parties.

After the death of Smt. Rase Sangma, mother of the present Appellant, Shri Wilson Marak also left the house and settled at Dalu with his new wife. Being the only daughter and heiress and her father having left her, Appellant approached the Revenue Authority (GDC) to mutate periodic patta No. 16, Dags No. 112 and 121 into her name. The S.D.C. passed order dated 12.2.69 stating that the case is of civil nature and directed the parties to institute case in proper Court. When Appellant filed mutation petition (GDC-Rev. No. 72M of 1968-69) then only she learned about transfer of Dag No. 121 to Smt. Khimjing Sangma by her father and further discovered that Dag No. 112 was also secretly mutated in the name of Smt Hallimish Sangma, the Respondent along with Dag No. 121 without the knowledge and consent of the present Appellant The mutation documents also mysteriously could not be traced.

The main contention of the parties were based on a will dated 3.6.56 allegedly executed by Smt. Khimjing Sangma in favour of Hallimish Sangma, the Respondent The alleged will was obtained just few days before the death of Smt. Khimjing Sangma (the grand mother). On 3.6.56, all the relatives assembled in the house of Smt. Khimjing Sangma with apprehension that she may die any moment. In the will, there was no description of Smt. Khimjing Sangma''s properties. Shri Wilson Marak had no right to transfer Dag No. 121 to Smt. Khimjing Sangma without Ihe know and consent of his wife Smt. Rase Sangma and his only daughter Smt. Hillaiy Sangma.

Though the patta was in the name of Shri Wilson Marak, he was for namesake only as the property actually belongs to his wife Smt. Rase Sangma. According to Garo Custom, the male cannot hold property. Smt Khimjing Sangma is not the sole and absolute owner of Dag Nos. 112 and 121 plots. Her name was mutated along with Wilson Marak only in 1953. The will had been relied upon as if the grand mother (Smt. Khimjing Sangma) was the owner of the property. The land in plot of Dag No. 121 belongs to the mother of the Appellant by alleged will the property could not have been transferred and such will is of no value. The Respondent (Smt. Hellimish Sangma) obtained Patta secretly without notifying the rightful heir and consent of the actual owner who was the wife of Shri Wilson Marak.

Finding no alternative, the Appellant filed Title Suit for declaration of her right and title etc. over the suit land covered under Periodic Patta No. 16, Dag Nos. 112 situated at Chandmary, Tura, vide Title Suit No. 9/69 against the Respondent before the Subordinate District Council Court at Tura. The Subordinate District Council Court registered the suit and forwarded the suit to Dobasipara Village Court as the parties were residents of Tura town within the jurisdiction of Dobasipara Village Court, for disposal. Dobasipara Village Court disposed of the case/suit on 10.10.1969 giving Dag No. 112 to the Appellant and Dag No. 121 to the Respondent.

Against the order dated 10.10.1969 of the Dobasipara Village Court, both parties filed/preferred appeal before the Subordinate District Council Court, Tura. The Subordinate Court dismissed the appeal filed by Appellant holding that she got decree for Dag No. 112 according to her claim in the plaint before the Village Court, and thereafter, there is no ground for appeal. The appeal preferred by Respondent proceeded and the Court was pleased to order for denovo trial.

The Judicial Officer after hearing the parties passed the order dated 3.8.1982 decreeing the plot under Dag No. 112 to Appellant and Dag No. 121 to Respondent just like the order dated 10.10.1969 of the Dobasipara Village Court.

The Respondent thereafter preferred appeal before the Judge, District Council Court, Tura and this was referred to the Hon''ble High Court to transfer the appeal to some other Court having similar jurisdiction because Judge was personally related to the parties of the case. The Hon''ble High Court transferred the appeal to the Court of Judge, Khasi Hills District Court at Shillong. The Judge, Khasi Hills District Council Court at Shillong reversed the order of the Subordinate District Council Court, Tura and granted both Dag Nos. 112 and 121 to the Respondent.

The Appellate Court held that the properties are clan properties on statement of Respondent. In the record of Rights maintained by the authority, land stood in the name of Wilson Marak. Records of mutation case could not be traced and reliance was placed on deposition of Respondent regarding mutation. The appellate Court held mutation to be valid only because Appellant did not raise objection although she came to know of mutation in 1969. The Appellant was in possession of Dag No. 112 without objection during the lifetime of Khimjing Sangma. The Apellate Court did not taken into account, the laws of inheritance, power of will and rights of the males to hold property in Garo Customary Law. Hence the appeal.

To appreciate the statements advanced at the Bar, it would not out of place to reproduce the family pedigree as placed on record by Mr Lahiri, learned Senior Counsel appearing for the Appellant.

KHIMJING (Ancestress)

Phukan Namse Rase-wilson Porsojini Nogini Marak

Hallimish Hillary (Defendant/ (Plaintiff/ Respondent) Appellant) 12. Mr N.M. Lahiri, the learned Counsel for the Appellant in the background of the facts and circumstances and the geneological table so given above has thus submitted that the impugned order dtd. 3.11.89 so passed by the Judge, District Council Court, Khasi Hills in Misc. Civil Appeal No. 13/82 is thus mainly liable to be set aside on the ground that while decking the Misc. Civil Appeal unnecessarily the alleged will which was so obtained a few days before the death of Khimjing Sangma which contains no description of any period so got relied upon and the said will as a matter of fact did not confer any right, title or interest to the Respondent which should not have been accepted. Furthermore, the appellate Court below has erred in holding that Late Khimjing Sangma was the sole and absolute owner of both the Dags 112 and 121 under P.P. No. 16 when the name of Khimjing Sangma was mutated in place of Wilson Marak, father of the Appellant in 1953. In respect of the land of Dag No. 121 as the same was allegedly transferred by the father of the Appellant. It is pointed out that the learned appellate Court has thus erred by holding the Respondent to be the owner of the property of the grandmother when Khimjing Sangma was never the owner of both the dags particularly Dag No. 112. The mutation papers in favour of the Appellant had wrongly been relied upon by the appellate Court below which cannot be said to be valid for the reason that the Appellant came to know about the mutation order in favour of the Respondent only in 1969 when she filed petition for mutation in her favour and as such the impugned judgment is liable to be interfered with.

By referring to the judgment so passed by Judicial Officer, Subordinate Court in Misc. Case No. 20/71 dtd. 3.8.82, it is pointed out that the said Court had found the possession of this Appellant-Plaintiff over Dag No. 112 continuously for a long period and was perfectly justified in holding with regard to the mutation in the Respondent''s name in respect of Dag No. 112 to be completely void and that way the learned appellate Court below has thus erred in particularly allowing the appeal and to that extent setting aside the judgment dtd. 3.8.82 so passed in Misc. Case No. 20/71. It is in this context pointed out that entries in revenue record by way of mutation do not convey or extinguish any title and that it does not have any presumptive value on title. Such entries so made are relevant for the purpose of collecting the land revenue and in support of his this contention Mr. Lahiri, the learned Sr. Counsel for the Appellant has referred to one of the reported cases Balwant Singh and another etc. Vs. Daulat Singh (dead) by L.Rs. and others, The further case of the Appellant as advanced by the learned Counsel Mr Lahiri that the Appellant-Plaintiff is having his house in Dag No. 112 and possessing the same since long having right, title and interest and thus the impugned order is arbitrary particularly to the extent of even declaring the right, title, interest and possession of Dag No. 112 in favour of the Respondent is patently wrong.

Mr R.P. Sharma, the learned Counsel for the Respondent, on the other hand, has submitted that there is nothing wrong in the judgment dated 3.11.89 passed in Misc. Appeal No. 13/82 by the learned Judge, District Council Court, Khasi Hills and has also pointed out that while disposing of the matter on 3.11.89 the learned appellate Court below has assigned good reason for arriving at a decision allowing the appeal and declaring the right, title, interest and possession in favour of the Respondent in both the dags. The Respondent, it is pointed out, inherited the property of late Khimjing Sangma whose property was inherited through succession. The Respondent, it is further pointed out, got her name mutated in the suit land in Mutation Case Nos. 186 and 187 of 1957-58 and also won her contest with Nogini and Porsojini for the property of Late Khimjing Sangma including the suit as per Civil Revision No. 6(M) of 1957 of the High Court. It is further averred that Late Khimjing Sangma, grandmother of the contesting party was the legal and absolute owner of the suit property and the will dtd. 3.6.1958 has rightly been relied upon by the learned appellate Court below and that way the judgment dtd. 3.11.89 does not require any interference. By referring to the operative portion of the impugned order dtd. 3.11.89 it is further pointed out by Mr R.P. Sharma, the learned Counsel for the Respondent that it has rightly been held that the mutation was not ostensibly done without the knowledge of the present Appellant in favour of the Respondent which as per the learned appellate Court below can well be presumed to be legal and valid one and it was also rightly been held that the present Respondent was in possession of the land of Dag No. 112 and also over Dag No. 121 and on no account it can be said that the present Appellant had any lawful possession over the land of Dag No. 112. Concluding his argument Mr. R.P. Sharma, the learned Counsel for the Respondent has thus submitted that since this M.A. (S) so preferred by the Appellant has got no merit the same be dismissed.

This will not be out of place to mention here that while disposing of Misc. Case No. 20/71 on 3.8.82 the operative portion of the judgment so passed by the Presiding Judicial Officer of the Subordinate Court is that the ownership and inheritance relating to the land of Dag No. 112 pertaining to P.P. No. 16 is declared in favour of Hillary N. Sangma, the Appellant and as regards the Dag No. 121 of P.P. No. 16 in favour of Halimesh N. Sangma which was under separate patta to be arranged by the concerned authority. This judgment was passed in Misc. Case No. 20/71 on 3.8.82. In Misc. Civil Appeal No. 13/82 so preferred by Smti. Halimesh N. Sangma order dated 3.8.82 go set aside by its order dtd. 3.11.89 which is the impugned order and the learned appellate Court below was pleased to allow the appeal by declaring the possession of plot covered by Dag Nos. 112 and 121 in favour of the present Respondent and mutation was done in favour of the Respondent is also directed not to be interfered.

However, we are of the considered opinion, after going through the facts and circumstances of the case with that of customary law so prevalent and also in the background of the findings so arrived at by us as detailed in foregoing paragraphs that the impugned orders dtd. 3.11.89 so passed in Misc. Civil Appeal 13/82 thus requires interference and is liable to be set aside which is so hereby set aside and the judgment so passed in connection with the suit land dated 3.8.82 passed in Misc. Case 20/71 is restored and upheld.

This M.A.(S) 1 of 1990 is accordingly disposed of Parties to bear their own costs.