P.C. Lalhmachhuana vs P.C. Zothiamthanga and ors

1.Heard Mr. Zochhuana, the learned counsel for the petitioner as well as Mr. B. Lalramenga, the learned counsel for the respondent No. 1. None

appears for the respondent Nos. 2 and 3 despite service.

By filing this writ petition under Article 227 of the Constitution of India, the petitioner seeks revision of the Order dated 26.07.2004 passed by the

then Sub-ordinate District Council Court (SDCC), Lunglei District, Lunglei in Heirship Case No. 78/2004, whereby Heirship Certificate dated 26.

07.2004 was issued to the respondent No. 1 declaring him to be the legal heir of LSC No. 157/1980 and LSC No. 109/1986. The present revision

petition is confined to the claim against the LSC No. 157/1980.

The facts of the case in brief is that the petitioner is the grandson of one Smt. Lianhliri, who during her lifetime was the owner of LSC No.

157/1980. Smt. Lianhliri was married to Shri. P.C. Thangzika and out of the wedlock, they have five sons. The husband of Smt. Lianhliri expired on

01.2005, while her four sons except the respondent No. 1 also expired on 08.08.1986, 09.07.1987, 30.01.1999 and 02.12.1999 (in order of their

age). The respondent No. 1 is the youngest son and also the only surviving son of Smt. Lianhliri. The petitioner on the other hand is the son of the

second eldest son of Smt. Lianhliri and Shri. P.C. Thangzika, i.e., P.C. Lalrodinga.

After the death of Smt. Lianhliri on 29.06.2004, the respondent No. 1 applied for Heirship Certificate in respect of LSC No. 157/1980 and LSC No.

109/1986. On such application, the SDCC at Lunglei on 26.07.2004 granted the same in respect of the two immovable properties to the respondent

No. 1. According to the petitioner, he was under the care and custody of late Smt. Lianhliri till her death on 29.06.2004. He contends that the

respondent No. 1 is of the knowledge that the landed property covered by LSC No. 157/1980 was left by late Smt. Lianhliri by way of a will in favour

of the petitioner. The petitioner came to learn about the issuance of the Heirship Certificate only in the month of December 2013 when he received a

notice dated 10.12.2013 from the District Village Industries Officer of the Mizoram Khadi & Village Industries Board, Lunglei. It was stated in the

notice that the petitioner obtained loan in the year 1995-1996 for the purpose of setting up iron grill industry and he was therefore asked to come to the

office of the Mizoram KVI Board on or before 15.01.2014.

The petitioner further came to learn that loan was obtained by the respondent No. 1 by impersonating him and by forging his signature though the

photograph of the respondent No. 1 himself was affixed in the deed of loan and hypothecation. He therefore approached the respondent No. 1 and

requested him to liquidate the loan and return the LSC No. 157/1980 to him. The respondent No. 1 assured the petitioner that he would return the LSC

to him after he repaid the loan and asked him to wait till then. However, while the petitioner was expecting that the loan amount will be repaid by the

respondent No. 1 and the LSC would be returned to him, he came to learn that the respondent No. 1 was planning to sell the said LSC and with the

amount received, he intended to repay the loan. Further, on such repayment, the respondent No. 2 would be releasing the LSC to the respondent No.

The petitioner therefore immediately approached the respondent No. 2 and requested him not to release the LSC to the petitioner by submitting an

application through his counsel on 15.02.2017. Thus, the petitioner having no alternative has filed the instant revision petition for setting aside the Order

dated 26.07.2004 passed by the SDCC, Lunglei in Heirship Certificate Case No. 78/2004 in respect of LSC No. 157/1980.

Mr. Zochhuana, the learned counsel for the petitioner submits that the learned SDCC without issuing any notice on the application filed by the

respondent No. 1, issued the Heirship Certificate to the respondent No. 1 causing serious prejudice to the petitioner. He submits that he has been

deprived of any opportunity of being heard, so as to enable him to assert his rights and interest in the landed property covered by LSC No. 157/1980.

He further submits that with the coming into force of the Mizoram Civil Courts Act, 2005, (Civil Courts Act), the District Council Court (DCC) as well

as the SDCC has been done away with and therefore, the petitioner having no other alternative has approached this Court seeking the exercise of

supervisory jurisdiction conferred by Article 227 of the Constitution.

In response to the revision petition, the respondent No. 1 has filed an affidavit-in-opposition on 16.10.2017. Mr. B. Lalramenga, the learned counsel

for the respondent No. 1 by referring to the affidavit-in-opposition submits that there is enormous delay on the part of the petitioner in approaching this

Court to challenge the Order dated 26.07.2004 passed by the SDCC in Heirship Case No. 78/2004. He further submits that the revision petition is not

maintainable, as there is a provision for appeal under Section 17 of the Civil Courts Act. He submits that in so far as the right of the respondent No. 1

to the property in question is concerned, he being the youngest son of his parents, he is the rightful heir to the property left behind by his parents.

I have heard the submissions advanced by the learned counsels for the rival parties and I have perused the materials available on record including

the Lower Court Records which was requisitioned.

Since the respondent No. 1 has raised the question of jurisdiction of this Court, it would be apposite to first examine as to whether the present

petition filed under Article 227 would be maintainable. Article 227 of the Constitution of India empowers the High Court to have superintendence over

all Courts and tribunals throughout the territories in relation to which it exercise its jurisdiction. The power of superintendence of the High Court is both

administrative and judicial. However, the same has to be exercised sparingly and only in appropriate cases to keep the Sub-ordinate Courts within the

bounds of their authority. As can be noticed with the coming into force of the Mizoram Civil Courts Act, judiciary has been separated in the State of

Mizoram and the erstwhile DCC and SDCC is no more with the repeal of the Rules for Regulation of Procedure of Officers to Administer Justice in

The Lushai Hills, 1937 under Section 31 of the Civil Courts Act. It may be noticed that the Civil Courts Act has been extended to the whole of the

State of Mizoram, excluding the Autonomous District Council areas. Civil Courts Act came into force w.e.f. 26.04.2006. Section 10 of the Civil

Courts Act provides for the transition of the existing Courts to the Courts to be established under the Civil Courts Act. Section 10(1) provides that the

Courts of Additional District Magistrate (Judicial) existing immediately prior to the appointed date shall, w.e.f. the appointed date, be converted to be

Courts of District Judges established under the Act until they are reconstituted in accordance with the Act. Section 10(2) similarly provides that the

DCC existing immediately prior to the appointed date shall, w.e.f. the appointed date be deemed to be Court of Senior Civil Judges under the Act until

they are constituted under the Act. Likewise, the SDCC and the ADCC at Aizawl, Kolasib, Champhai and Lunglei existing immediately prior to the

appointed date shall, w.e.f. the appointed date deemed to be Court of Junior Civil Judge under the Act until they are constituted in accordance with the

Act. Section 17 provides for the appellate provisions. Under Section 17(1), an appeal shall lie to the High Court from the Decrees & Orders passed by

a Court of District Judge in original suits and proceedings of civil nature. Section 17(2) provides that appeal from the Decrees & Orders passed by a

Court of Senior Civil Judge in original suits and proceedings of civil nature shall lie to the Court of District Judge when the amount or value of the

subject matter of the original suit or proceeding is less than 5 lakhs of rupees and to the High Court in other cases.

The learned counsel for the respondent No. 1 has relied upon a decision rendered by a Division Bench of this Court in Civil Revision No.

7(H)/1978 decided on 12.02.1980 (Sailala Vs. Smt. Ngurtaiveli) to contend that the petitioner ought to have filed a revision petition under Clause 6 of

the Assam High Court (Jurisdiction over District Council Courts) Order, 1954 (Order of 1954) instead of a petition under Article 227 of the

Constitution of India. A perusal of Clause 6 of the Order of 1954 would show that the High Court may, on application or otherwise, call for the

proceedings of any civil or criminal case decided by or pending in any court in the Autonomous District constituted under the provisions of sub

paragraphs (1) and (2) of paragraph 4 of the Sixth Schedule to the Constitution (hereinafter called the Court of the District Council) and pass such

orders as it may deem fit. From the said provision, it can be seen that the High Court has revisionary jurisdiction against the order passed by the DCC.

The power may be exercised on application made by the party aggrieved or even suo moto. However, in the instant case, the petitioner is aggrieved

by the order of the SDCC and therefore, Clause 6 of the Order of 1954 may not be attracted.

The Apex Court in the case of Suria Dev Rai Vs. Ram Chandar Rai & Ors. (2003) 6 SCC 675 has held that the paramount consideration behind

vesting such wide power of superintendence in the High Court under Article 227 of the Constitution is to pave the path of justice and removing any

obstacles therein. The power under Article 227 is wider than the one conferred on the High Court by Article 226 in the sense that the power of

superintendence is not subject to technicalities of procedure or tradition fetters which are to be found in certiorari jurisdiction. But however, the Apex

Court has also observed that in spite of the power, the exercise is discretionary which will be governed solely by the dictates of judicial conscious

enriched by judicial experience and practical wisdom of the Judge. Having regard to the fact that when there is a remedy available to the party

aggrieved under the statues i.e., the Civil Courts Act in the instant case, the intervention of the High Court in exercise of the powers under Article 227

of the Constitution in my considered opinion may not be warranted.

In the light of the above opinion, consideration of the other issues is found to be unnecessary. The decision rendered by a Co-ordinate Bench of

this Court in RSA No. 5/2013 (Janet Laldinliani Vs. Rev.Thangluaia) relied upon by the counsel for the petitioner is also found to be not applicable to

the present case, inasmuch as, the same was a second appeal under Section 100 of the Code of Civil Procedure, 1908 against the Order passed by the

Court of Senior Civil Judge, Aizawl dismissing the First Appeal preferred by the appellant therein.

In that view of the matter, I am not inclined to entertain the writ petition and as such, the same is dismissed. The petitioner however shall be at

liberty to approach a competent Court having jurisdiction.

The Lower Court Records be returned forthwith.