KONSAM NINGOL MIKOI DEVI Vs. KUMAN ACHOUBA SINGH

JUDGEMENT

(1.) This appeal is presented by the plaintiffs/appallants against the judgment and decree dated 29.12.87, passed by the Additional District Judge(I), Manipur, in original suit No. 12 of 1985/15 of 1985, dismissing the suit of the plaintiffs. The title suit mentioned above was instituted by the plaintiffs claiming a declaration that the plaintiffs were the owners of the suit land measuring 16 acres forming the Southernpart of patta land under patta No.52/207 Ahallup pana corresponding to New patta No. 52/94 B.T.. situated at Kumam Leikai. Moirang village, the plaintiffs also sought for a declaration that the sale deed dated 11.7.84 was void and not binding on the plaintiffs, further for declaration of permanent injunction restraining the defendants from entering upon the suit land and from disturbing the peaceful possession of the plaintiffs. The plaintiffs claimed their right, title and interest over the land through late Kumam Jarma Singh, a Manipuri Hindu, the original owner of the land-in-question. According to the plaintiffs, late Kumam Jarma Singh died about seventy years before institution of the suit leaving behind two sons viz., Kumam Kshetri Chaoba Singh and Kumam Madhob Singh, both of whom also died long before institution of the Suit. Kumam Kshatri Chaoba Singh, the first son of late Kumam Jarma Singh, had one daughter, viz., Angoubi Devi, who was married to Shri Konsam Chaoba Singh about seventyfour years before institution of the suit. That at the time of her marriage, his grand father, late Kumam Jarma Singh gifted a piece of land as dowry forming the Southern portion of the patta land of patta No. 52/207 with delivery of possession. Angoubi Devi accepted the gift and possession of the said portion of the land. The gifted portion of the land was the subject- matter of the suit. She and her husband resided on the suit land. Angoubi Devi possessed and enjoyed the suit land as owner by constructing her dwelling house and by growing seasonal vegetables thereon. Said Angoubi Devi died about sixtyfive years before filing of the suit leaving behind two daughters, the plaintiffs in the title suit, and thus on her death, the suit land devolved on the two daughters of the late Angoubi Devi. The plaintiffs further contended that after the death of their mother, their father, Konsam Chaoba Singh, married Leiren Devi and began to live on the suit land as husband and wife. Of their wedlock, six sons including the defendant No. 3 and one daughter were born. Konsam Chaoba Singh died about twentyfive years ago and Leiren Devi died about fourteen years ago. It was further pleaded that during the life time of their mother Angoubi Devi, their father Konsam Chaoba Singh had no right over the suit land. That after the death of Angoubi Devi, Konsam Chaoba Singh, his second wife Leiren Devi and their sons and daughters were all licensees of the plaintiffs. That after their marriage, the plaintiffs did not quit possession of the suit land on which there were two houses, one in the Eastern and the other on the Western portion of the land belonging to the plaintiffs. The plaintiffs kept their step-brother, Konsam Ngangba Singh in the house standing on the western portion of the suit land, so that he could take care of the suit land. It was further pleaded that during the survey and settlement operation, a new patta being pata No. 52/94 B.T. comprising Dag Nos. 1033, 1034 and 1035 was prepared corresponding to old patta No. 52/207 Ahallup pana and out of it, the land measuring 16 acres covered by C.S. Dag No. 1035 belonging to the plaintiffs, was the suit land. The name of the defendant No. 3, Konsam Tomba Singh, had been entered in the said new patta even though he never any right or title to any part of the suit land. The plaintiffs continued to be the owners and possessor of the suit land. That the defendant No. 3, without any right, title over the suit land, executed a Sale Deed dated 11.7.84 in favour of the defendant No. 2, Kumam Nipamacha Singh purporting to transfer the western portion of the suit land measuring '08 acre out of the total '16 acres and the name of the defendant No. 1, Kumam Achaoba Singh, had also been mutated in the record of rights without his acquiring any right, title and interest over the suit land vide order dated 18.9.84, passed by the SDC, Moirang in Mutation case No. 1003/SDC(M)/84 and thereafter by an order dated 18.1.85, passed by the SDO, Moirang in partition case No. 128/84/SDO(M) of 1984, allowed the partition of the western '08 acre of land out of the suit land and in pursuance thereof, a new patta was issued in the name of the defendant No. 1 as pattadar behind the back of the plaintiffs. Hence the suit. The defendants contested the suit by filing joint written statement and resisted the suit of the plaintiffs. The defendants admitted that the land under patta No. 52/207 Ahallup pana was owned and possessed by Kumam Jarma Singh during his life-time. The defendants however, denied the other averments made in the plaint. The defendants denied and disputed the story of gift of the suit land in favour of the mother of the plaintiffs and stated that late Kumam Jarma Singh relinguished his right, title over the suit land during his life-time in favour of Konsam Chaoba Singh who died about forty years back from the date of filing of the written statement. That after the death of Konsam Chaoba Singh, his six sons including the defendant No.3 inherited the properties including the suit land left by Konsam Chaoba Singh. That the suit land having an area of 16 acres was the share of the defendant No. 3 out of the properties left by the deceased Konsam Chaob Singh. The defendants pleaded that the daughters of the deceased Konsam Chaoba Singh did not get any share of the properties left by him, and that the plaintiff's mother Angoubi Devi had no right and title over the suit land at any point of time. According to the defendants, their father married Leiren Devi during the life-time of Angoubi Devi. The defendants denied that they and their father were licensees of Angoubi Devi and further pleaded that late Konsam Chaoba Singh was the absolute owner of the suit land and as owner, he possessed the same during Ms life time and after his death the defendant No. 3 has been in continuous possession of the suit land as owner as against the whole world during his life-time and as such, his title to the suit land. Further, the right and title of the defendant No. 3 over the suit land was effected by adverse possession. The defendants submitted that after purchase of the western portion of the suit land measuring '08 acre by the defendant No. 2 from the defendant No. 3, the defendant No. 2 made a gift of the western portion of the suit land in favour of the defendant No. 1 measuring 08 acre during the last week of August, 1984 and his name was recorded in the relevant records consequent to the order made in Mutation case No. 1003/SDC(M)/84 by the SDC, Moirang. According to the defendants, the plaintiffs lave no locus standi to file the suit and that the suit was undervalued for the purpose of jurisdiction. On pleadings of the parties, the following issues were framed by the learned Addl. District Judge: 1. Whether the suit land was gifted to the plaintiffs mother Angoubi Devi or relinguished in favour of their father Konsam Achaoba Singh by late Kumam Janrna Singh ? If so, its effect ? Did Konsam Chaoba Singh along with his second wife Leiren Devi and their children livg in the suit land as licensees as alleged by the plaintiffs? Who is or are in possession of the suit land on the date of suit? Has the right and title of the defendant No. 3 over the suit land been perfected by adverse possession ? Has the defendant No. 3 saleable right to the suit land ? If so, its effect ? Are the plaintiffs entitled to the reliefs as claimed ?The plaintiffs examined six witnesses and the defendants examined four witnesses to prove their case. In addition, the parties also exhibited and proved some documents, The learned trial Court on considering the evidence on record and after hearing the counsel for the parties, finally dismissed the suit. Hence the appeal.

(2.) Mr. RK Sanajaoba, learned senior counsel appearing on behalf of the appellants, assailed the judgment and decree of the learned trial court mainly on the ground that the learned trial-court fell into serious error in not considering the evidence on record in its proper perspective. The learned senior counsel for the appellants submitted that in a Civil suit, the plaintiff is to prove his case by pre-ponderance of probability and in the instant case, the plaintiffs proved their case by positive evidence establishing their right, title and interest over the suit land. The learned counsel further submitted that in the instant case, the learned trial court fell into serious error as it failed to appreciate the evidence in its proper perspective, which caused failure ofjustice. Before dealing with the respective submissions of the learned counsel tor the parties, I would like to deal with on mere submission that was raised by the appellants. Mr. Sanajaoba, the learned senior counsel appearing on behalf of the appellants, submitted that an application was submitted before the learned Addl. District Judge for amendment of the plaint, but the same was turned down by the learned Judge without considering the same on merits. On the own showing of the learned senior counsel for the appellants, the aforesaid application for amendment was filed on 29.12.87, i.e. the date of delivery of the judgment. The said application is at page 7 in the relevant file of the lower court record, which shows two endorsements -one from the office and the other from the learned Judge to the effect that the application for amendment was filed after the disposal of the suit. On the same application, the learned trial Judge made a note that the application for amendment was put up after disposal of the suit and hence, it was not entertained.

(3.) I have gone through the order sheets of the case which show that the arguments were concluded by both the sides on 19.12.87. The court after hearing the parties fixed 29th December, 1987 for judgment. The learned counsel for the plaintiffs, however, filed an application on 22.12.87 praying for further hearing of the case, with a copy to the other party. The learned trial Judge allowed the application for further hearing and in fact further heard the parties on 23.12.87 and ordered that the judgment would be delivered on 29.12.87. From the aforesaid facts, it thus emerges that the application for amendment was filed after delivery of the judgment and, therefore, question of allowing the application for amendment by the learned trial Judge did not arise. Interestingly, no such prayer was however made before the appellate court or any ground was taken to that effect. The learned Addl. District Judge while deciding the issue No. 1 pertaining to the gift of the land in favour of the plaintiffs' mother Angoubi Devi as well as relinguishment of the land by late Kumam Jarma Singh in favour of Konsam Chaoba Singh, considered the evidence of the parties. The learned Judge while evaluating the respective evidence of the parties, took note of the fact about the total absence of any document pertaining to the gift of the land-in-question. The learned Trial Judge observed that late Kuinam Jarma Singh, the original owner of the land, was a Manipuri Hindu and that during his lifetime, the Transfer of Property Act was not extended to the State of Manipur as oral gift was permissible in Manipur. The learned Judge referring to the absence of any pleading as to the nature of the gift of the property, observed that the plaintiffs did not disclose as to whether the gift was made orally or in writing. None of the witnesses were present during the transaction, nor did they indicate anything about those persons who were present at the time of gifting of the property to their mother. The court noted that the plaintiffs, according to their averments, were not born at the time of gifting of the land-in-question as it was gifted at the time of the marriage of their mother which took place about seventy four years before the institution of the suit. The learned Court referring to the evidence of plaintiff No. 1, Mikoi Devi, indicated that the witness stated that she knew from her father, late Chaoba Singh, that the suit land was gifted by her great grand-father Kumam Jarma Singh as dowry to her mother at the time of marriage of her mother. But the witness did not disclose as to on what occasion and time, she came to know about those facts. The learned Judge also referred to the evidence of PWs 2 and 3, viz.. Konsam Khongjai Singh and Kumam Ngangba Singh, the step-brothers of the plaintiffs and the brothers of the defendant No.3, but the Court did not accept their evidence because of the vagueness of their depositions. The learned trial court fully discussed the evidence of those two witnesses and gave good and cogent reasons for not accepting their evidence. The learned. Judge also indicated about the nature of the evidence, the proven relationship between the defendants and the witnesses, which did not persuade him to accept the evidence of the aforesaid witnesses. The learned Judge in his judgment, referred to the total lack of knowledge about the alleged gift by any of the witnesses the terms of the gift and absence of any specification about the gifted land. Under these circumstances, the law relating to succession did not favour the story of the gift of the suit land in favour of the plaintiffs or their mother. The learned judge also referred to the conduct of the plaintiffs and their total inaction towards bringing to the notice of the revenue authority about the gift of the land-in-question even at time of survey and settlement operation which took place at their village at Moirang from time to time. Referring to the pleadings, the learned Judge pointed out that the same didnot contain any definite area of the land which was gifted to the plaintiffs or their mother. The learned trial court further indicated that the plaintiffs' mother Angoubi Devi was not the only grand child or heir of late Jarma Singh. Jarma Singh died Heaving behind two sons, viz, Kshatri Chaoba Singh and Khunjao Singh, who also left behind other sons and daughters. That there: was no evidence on record to show that late larma Singh had gifted the land to his other grand-children, or that his sons gave appropriate shares of the land to their children. Taking into account all the circumstances, the learned trial Judge did not find any merit in the pleas of alleged gift as advanced by the plaintiff's. Similarly, the learned Judge did not accept the story of relinguishment in favour of the defendants' father concerning the suit land and accordingly decided the issue No. 1 neither in favour of the plaintiffs nor in favour of the defendants. The above issue was the vital issue which was decided by the learned trial court on the basis of the materials on record. No infirmity as such can be found in the finding arrived at by the learned trial court requiring interference from this court.