Naorem Ningol Binashakhi Devi and Others vs Yendrebam Ningol Mayanglambam and Another

Ranjan Gogoi, J.—Both the Second Appeals having raised common questions of law and being directed against the common Judgment and Decree dated 30.6.1997 passed by the learned Addl. District Judge, Manipur West, Imphal in Civil Appeal No. 13/96 and Civil Appeal No. 14/1996, are being taken up for consideration together and being disposed of by this common judgment and order.

The respondents in both the present Second Appeals as plaintiffs instituted Original Suit No. 21 of 1987:9/91:54/91 in the court of the learned Civil Judge (Senior Divn.) Manipur West praying for declaration of their right title and interest over the suit land, for permanent injunction and also for cancellation of the names of the dependant No. 1 in the suit and her late husband Angou Singh from the record of the rights. Subsequently, the Appellants in the present Second Appeals as Plaintiffs, instituted another Suit being Original Suit No. 42/90:47/91:60/91 in the same court for partition of the suit properties.

The stand taken by the respective parties in the aforesaid suits either as the plaintiffs or as the defendants, was, as bound to be, the same. According to the present respondents in the Appeals, late Angou Singh, the original owner of the suit land orally gifted the suit land to respondent No. 1, Smt. Mani Devi, who was his eldest daughter some time in the year 1963 and the said Mani Devi had got her name recorded in respect of the suit land in the year 1963-64. The respondent No. 1 herein, Smt. Mani Devi, claimed to have been in continuous possession of the suit land as absolute owner till the year 1983. According to the respondent No. 1, Shri Angou Singh died on 4.11.1984 and in the month of November 1993 the respondent No. 1 gifted the suit and to respondent no. 2 her daughter and since then the respondent No. 2 has been in possession of the land as absolute owner. As the appellants herein had made a hostile claim against the respondents in respect of the suit land on 31.12.1986 and also attempted to tress-pass upon the suit land on 11.2.1987, the respondents had filed the suit in question, i.e., Original Suit No. 21/87 claiming the reliefs earlier stated.

The case of the present appellants as projected before the learned trial court in both the suits is that the claim of oral gift and exclusive possession as absolute owner as made by the present respondents was not correct and the land belonged to all heirs of late Y. Angou Singh. On the aforesaid basis, the present appellants had filed the suit for partition of the suit properties, i.e., Original Suit No. 43/90.

The learned trial court by a common judgment and decree dated 31.5.1996 decreed the suit filed by the present appellants for partition and dismissed the other suit filed by the present respondents claiming title.

Aggrieved by the common judgment and decree dated 31.5.1996 passed by the Civil Judge (Sr. Division), Manipur West, an Appeal was filed by the present respondents and the learned lower appellate court, by judgment and decree dated 30.6.1997, remanded the matter to the learned lower trial court for a de novo consideration by framing an additional issue with regard to the question of adverse possession as raised by the present respondents, as plaintiffs, in the original suit filed. The learned lower appellate court in both the Appeals also thought it proper to set aside the judgment and decree passed by the learned trial court. Aggrieved, the instant Second Appeals have been filed.

I have heard Mr. Nilmani Singh, learned Senior Advocate appearing on behalf of the Appellants in both the cases and Mr. N. Kerani Singh, learned Senior Advocate appearing on behalf of the respondents.

The very elaborate arguments advanced on behalf of both the parties in the Second Appeals really centre round the question as to whether in view of issue No. 5 framed in the suit, the learned lower appellate court was correct in framing the additional issue and in remanding the suit to the learned trial court for a de novo consideration.

Mr. Nilmani Singh, learned counsel appearing for the appellants by making a reference to issue No. 5 as framed in the suit, has contended that the question of adverse possession already stood covered by the aforesaid issue No. 5 and, therefore, the learned lower appellate court had gone wrong in framing the additional issue on the said question and in remanding the suits for a de novo consideration.

The learned counsel of the appellants has urged that in the instant case the parties to the suit had gone to trial on the basis of specific pleadings and counter pleadings with regard to the question of adverse possession and had led evidence on the said aspect of the case. It is, therefore, submitted by the learned senior counsel for the appellants, by relying on several judgments of the Apex Court as well as of this court, that when the parties had gone to trial on the basis of specific pleadings and had led evidence on the question of adverse possession, non-framing of an issue on the question of adverse possession, even if the same is to be assumed, would not be fatal to the suit. It will hardly be necessary to burden this judgment by referring to the several judgments cited by the learned senior counsel appearing on behalf of the appellants in view of the almost settled law on the aforesaid point.

Mr. N. Kerani Singh, learned senior counsel appearing on behalf of the respondents has resisted the arguments advanced by the learned senior counsel on behalf of the appellants, by contending, inter alia, that issue No. 5 as framed by the learned trial court would not be determinative of the question of adverse possession raised in the suits in question and that a specific issue on the question of adverse possession was necessary for a just and proper determination of the dispute between the parties. Consequently, it is argued, that the learned lower appellate trial court had rightly framed the aforesaid additional issue and had correctly remanded the case for a de novo consideration.

I have considered the submissions advanced on behalf the rival parties and have also perused the judgments and decrees passed by the learned courts below. I have also considered issue No. 5 as framed in the original suit which is to the following effect :

"Whether the right and title of late Angou Singh was lost over the suit land during his life time by virtue of adverse possession thereof by the defendants."

Issue No. 5 as framed by the learned trial court in the suits, in my considered view, comprehensively covers the question of adverse possession raised before the learned courts below. That apart, the findings recorded by the learned trial court on the said issue No. 5 would go to show that the parties had led evidence on the said question and the learned trial court, found the claim of adverse possession not to be established by the evidence and materials on record and proceeded to hold that the possession was not adverse, as claimed, but was merely permissive. In view of what has been recorded above, the exercise undertaken by the lower appellate court in framing an additional issue and in remanding the matter back to the learned trial court for a de novo consideration does not appear to be correct.

As the parties had gone to trial on the question of adverse possession with their respective cases and had led evidence on the said issue, it was imperative on the part of the learned lower appellate court to consider the correctness of the findings recorded by the learned trial court on issue No. 5 on the basis of the evidence and materials on record. The learned lower appellate court by not proceeding in the above manner has clearly erred in law exposing the judgment and decree under challenge to interference.

In view of the above discussions, I find sufficient merit in the present Second Appeals. Consequently, the Second Appeals shall now stand allowed and the impugned judgment and decree dated 30.6.1997 passed by the learned Addl. District Judge, Manipur West, Imphal shall stand set aside. As the learned lower appellate court has not considered any of the other issues in the suit in view of the conclusions reached on the question of adverse possession, which conclusions are being interfered with by the present judgment and order, the matter shall now stand remitted to the learned Addl. District Judge, Manipur West for disposal of the Appeals filed before the said court by the respondents herein, on the basis of the materials already, on record. As the Appeals filed before the learned appellate court stands revived by this judgment and order, the interim orders, if any, passed by the learned appellate court with regard to the execution of the judgment and decree of the learned trial court shall also stand revived. In the event, there is no such interim order(s), it will be open for the aggrieved parties, if so they desire, to file an application under order 41 Rule 5 CPC for stay of the execution of decree passed by the learned trial court.

Both the Second Appeals shall stand allowed as indicated above.