Meghalaya High Court
U Hirod Nongspung And Ors vs Ka Oscilian Nongspung on 20 August, 2013
Author: T Nandakumar Singh
Bench: T Nandakumar Singh
THE HIGH COURT OF MEGHALAYA
CR(P) No. (SH) 3 OF 2013
1. U Hirod Nongspung,
President/Rangbah Kur,
Kur Nongspung,
Kpoh (Late) Ka Rynta Nongspung,
R/o Village Thadan,
Khyrim Syiemship,
East Khasi Hills District,
Meghalaya.
2. U Phinowel Nongspung,
Vice Chairman,
Kur Nongspung,
Kpoh (Late) Ka Rynta Nongspung,
R/o Village Mawlali,
Khyrim Syiemship,
East Khasi Hills District,
Meghalaya.
3. U Horen Nongspung,
General Secretary,
Kur Nongspung,
Kpoh (Late) Ka Rynta Nongspung,
R/o Smit Village,
Khyrim Syiemship,
East Khasi Hills District,
Meghalaya.
4. Ka Norilin Nongspung,
Assistant Secretary,
Kur Nongspung,
Kpoh (Late) Ka Rynta Nongspung,
R/o Mawlali Village,
Khyrim Syiemship,
East Khasi Hills District,
Meghalaya.
5. Ka Neti Nongspung,
Treasurer,
Kur Nongspung,
Kpoh (Late) Ka Rynta Nongspung,
R/o Mawlali Village,
Khyrim Syiemship,
East Khasi Hills District,
Meghalaya.
CR(P) No. (SH) 3 OF 2013 Page 1 of 33
6. Ka Phlorina Nongspung,
Auditor,
Kur Nongspung,
Kpoh (Late) Ka Rynta Nongspung,
R/o Mawlali Village,
Khyrim Syiemship,
East Khasi Hills District,
Meghalaya. :::: Petitioners
-Vs-
Ka Oscilian Nongspung,
R/o Village Thynroit,
Khyrim Syiemship,
East Khasi Hills District,
Meghalaya. :::: Respondent
BEFORE THE HON'BLE MR JUSTICE T NANDAKUMAR SINGH, CHIEF JUSTICE (ACTING) For the Petitioners : Mr S Chakravarty, Adv.
Mr.M Mahanta, Adv
For the Respondent : Mr KS Kynjing, Sr. Adv.,
Mr. H Kharmih, Adv
Date of hearing : 02.07.2013
Date of Judgment & Order : 20.08.2013
JUDGMENT AND ORDER
This revision petition is directed against the judgment and order of the learned Judge, District Council Court, Khasi Hills, Shillong dated 20.12.2012 allowing Misc. Civil Appeal No.9/2012 filed by the respondent/defendant against the judgment and order dated 20.12.2011 passed by the Presiding Officer, Subordinate District Council Court, Shillong in T.S. No.3/2004.
CR(P) No. (SH) 3 OF 2013 Page 2 of 332. Heard Mr. S Chakraborty, learned counsel appearing for the petitioners and Mr. KS Kynjing, learned senior counsel assisted by Mr. H Kharmih, learned counsel for the respondent.
3. The respective pleaded cases of the plaintiffs (present petitioners) and defendant (present respondent) have been mentioned morefully by the First Appellate Court in the impugned judgment and order dated 20.12.2012, and as such, it may not be required to mention repeatedly the facts of the parties' cases in details in this judgment and order. However, only the gist of the pleaded cases of the parties which would be sufficient for deciding the present revision petition are recapitulated.
4. The petitioners/plaintiffs filed a suit being T.S. No.3/2004 against the respondent/defendant before the trial court i.e. learned Mr. E. Myrten, Presiding Officer, Subordinate District Council Court, Shillong for declaration of right, title and interest, permanent injunction, eviction and recovery of possession of the suit lands consisting of 7(seven) plots, namely:-
(i) Ka Niangwein
(ii) Ka Langsah
(iii) Ka Um-eit-nai
(iv) Ka Proh-U-Khah
(v) Ka Weishudi
(vi) Ka Wahumbah
(vii) Ka Lait-u-Long.
The petitioners/plaintiffs are the permanent residents of Mawlali village, Thynroit-Langsah village, Smit Village, Mawroh village and Thadan village respectively, Khyrim Syiemship, East Khasi Hills District, Meghalaya. The CR(P) No. (SH) 3 OF 2013 Page 3 of 33 petitioners/plaintiffs are the descendants of Nongspung Clan from the womb of (L) Ka Rynta Nongspung and the respondent/defendant is also from Nongspung Clan but from the womb of (L) Ka Jylla Nongspung of Mawpdang village, Khyrim Syiemship now residing at Thynroit village, Khyrim Syiemship. The petitioners/plaintiffs No.1, 2, 3, 4, 5 & 6 are the President, Vice Chairman, General Secretary, Assistant General Secretary, Treasurer and Auditor, who represented the Nongspung Clan from the womb of (L) Ka Rynta Nongspung in all matters relating to the right, interest, ownership and possession of the Nongspung Clan before any authority or the court of law. The 7 (seven) plots of land i.e. (i) Ka Niangwein, (ii) Ka Langsah, (iii) Ka Um-eit-nai, (iv) Ka Proh-U-
Khah, (v) Ka Weishudi, (vi) Ka Wahumbah and (vii) Ka Lait-u-Long belong to the Nongspung clan of Thynroit-Mawlali, Khyrim Syiemship and devolved upon the petitioners/plaintiffs by way of inheritance and succession from their ancestress (L) Ka Rynta Nongspung according to the Khasi customary law. Since time immemorial and up till now, the management or any settlement/allotment of land to the different persons be he/she belongs to the Nongspung Clan and other clans are done by the Rangbah Kur i.e. President, Vice Chairman, General Secretary, Assistant General Secretary, Treasurer and Auditor; and the occupation of any plot of the said land in the village, it should be done with a prior permission and consent of the Durbar Kur of Nongspung clan from the womb of ancestress (L) Ka Rynta Nongspung.
5. When whole Nongspung clan from the womb of (L) Ka Rynta Nongspung became a village, many people who did not belong to the Nongspung clan are also allowed to reside there but the authority of the Rangbah Kur, President/ General Secretary, Assistant General Secretary as well as the character of the land on ownership is still maintained by the clan. No one had ever objected or made any claim with regard to the control and management of the said seven plots of land i.e. the suit land by the Nongspung clan of the womb CR(P) No. (SH) 3 OF 2013 Page 4 of 33 of (L) Ka Rynta Nongspung and no one from the 7 (seven) plots of land had ever objected to the possession, title or the improvement of the said 7 (seven) plots of land (suit land) which had always been under exclusive possession of the petitioners/plaintiffs and their tenants. On 10.09.2003, the respondent/defendant (Ka Oscilian Nongspung) womb of (L) Ka Jylla Nongspung of Mawpdang filed a criminal complaint in the Court of the Judge, District Council Court, Khasi Hills, Shillong against 15 persons of Nongspung clan of the womb of (L) Ka Rynta Nongspung some of them are the petitioners/plaintiffs. In the said complaint, the respondent/defendant claims that the 2 (two) plots of land, namely: Ka Langsah and Ka Pruh-U-Khah are her private properties. The criminal case was registered as C.R. Case No.9/2003 and the case is still pending. In the month of August, 2003, to the great shock and surprise of the petitioners/plaintiffs, the respondent/defendant and her associates trespassed into the 2 (two) plots of land, namely, Ka Langsah and Ka Pruh-U-Khah and started digging the said 2(two) plots of the suit lands and forcibly planted crops. On 30.08.2003, on many subsequent dates, thereafter, the respondent/defendant and her associates again illegally trespassed into the 2(two) plots of land Ka Langsah and Ka Pruh-
U-Khah and forcibly planted crops therein. The petitioners/plaintiffs further learnt that the respondent/defendant had claimed ownership of the plots of land, namely, (i) Langsah (ii) Ka Wah Umbah (iii) Um-eit-nai and Ka Pruh-U-Khah. The respondent/defendant further claims to have inherited from (L) Ka Jermai Nongspung, daughter of (L) Ka Jylla Nongspung which is one of the Nongspung clans of Mawpdang and have no connection with (L) Ka Rynta Nongspung.
Hence, the petitioners/plaintiffs filed the suit i.e. T.S. No.3/2004 against the respondent/defendant for the relief mentioned above.
6. The respondent/defendant filed the written statement emphatically denying the pleaded case of the petitioners/plaintiffs in the plaint. In the written statement of the respondent/defendant, the respondent/defendant pleaded:-
CR(P) No. (SH) 3 OF 2013 Page 5 of 33"6.1. That in the year 1921 U Phieng Nongspung (Predecessor of the plaintiffs) on behalf of the 31 houses of the Nongspung clan of Thynroit village, Khyrim Syiemship instituted a suit before the Court of the Lyngskor and his Durbar, Khyrim Syiemship against U Lar and Ka Jylla Nongspung (predecessors of the defendant No.1) claiming right and title over the three plots of landed property called 1) Umeitnai 2) Proh u kba and 3) Ka Langsah situated at Thynroit village, Khyrim Syiemship. After following the normal procedure in recording evidences from both sides and after hearing, the learned Court of the Lyngskor and his Durbar by judgment dated 25.08.1922 decided the suit in favour of U Lar and Ka Jylla Nongspung.
6.2. That against the aforesaid judgment passed by the Court of the Lyngskor and Durbar, U Phieng Nongspung preferred an appeal before the Court of the Syiem of Khyrim Syiemship in the month of September, 1922. The Syiem and his official went for a spot and local inspection of the disputed lands. After a detail enquiry and examination of evidences, rough sketch map was prepared dated 7.11.1923 and after hearing of the appeal on 29.11.1923 the Syiem and his Durbar by judgment dated 3.12.1923 upheld the order and judgment of the Court of the Lyngskor and Durbar holding that the suit lands are the private properties of U Lar and Ka Jylla Nongspung.
6.3. That no further appeal was preferred by U Phieng who is the predecessor of the plaintiffs against the aforesaid order and judgment passed by the Syiem and his Durbar, and that the same is laid to rest till date.
6.4. That in the year 1925 U Dar Nongspung (predecessor of defendant No.1) lodged a complaint before the Syiem of Khyrim against U Pom Nongspungh (predecessor of plaintiff) and one U Dar Nongrum for trespassing into one of the private landed property of U Dar and Ka Jylla Nongspung called ―Umeitnai‖ by cutting grass and pine trees. The Syiem of Khyrim by his order dated 11.2.1925 imposed fine to the aforesaid accused persons to the extent of Rs.50.00 each with a stern warning that if they still repeated the same a harsher punishment will be meted to them.CR(P) No. (SH) 3 OF 2013 Page 6 of 33
6.5. That again U Dar and Ka Jylla Nongspung filed a petition before the Syiem of Khyrim Syiemship against U Phieng, U Byllai, U Neng and others of the Nongspung clan (predecessor of the plaintiffs) for non payment of rent for cultivation of the suit land called ―Ka Langsah‖. The above mentioned persons who are the predecessors of the plaintiffs admitted before the Syiem of Khyrim that they used to pay the rent to U Dar and Ka Jylla Nongspung. By order dated 21.2.1925 the Syiem and Durbar warned the above persons that if they fail to pay the rent then their property will be attached.
6.6. That against the aforesaid order dated 11.2.1925 the accused persons U Pom and U Dar Nongrum preferred an appeal before the Deputy Commissioner Khasi and Jaintia Hills by their petition dated 12.3.1925 for setting aside the said order passed by the Syiem and Durbar for imposing a fine against the accused appellant of Rs.50.00 each. The said appeal was rejected by the Deputy Commissioner by his order dated 4.5.1925 with a strong warning that if they try to revive this case again in any Court the accused persons will be called to show cause why the fine already imposed on them by the Syiem of Khyrim should not be enhanced.
6.7. That again in the year 1949 the predecessors of the plaintiffs namely U Sop, U Bul, U Lum, U Thris from the Nongspung clan and U Driap Warjri and U Brian Kharsohnoh all of Thynroit village forcibly cultivated the private land of U Dar, U Mahin and Ka Jylla Nongspung (predecessor of the defendant No.1) according to their petitions dated 1.1.1949 and 10.1.1949 before the Syiem of Khyrim Syiemship. The Syiem after a detail enquiry into the matter and after a local inspection of the damage by his Myntri imposed a fine on U Sop, U Bur and U Iun Nongspung for Rs.320.00 each, and on U Thris Nongspung and U Driap Warjri and U Brian Kharsohnoh for Rs.211.00 each by his order dated 15.11.1949.
6.8. That again the same aforesaid persons in the year 1950 U Bur, U Iun Nongspung and others of Thynroit village (predecessors of the plaintiffs) filed a suit before the Court of the Lyngskor of Raj Nongkrem, Khyrim Syiemship against U Dar. U Mahin, U Su Nongspung and others (predecessors of the defendant No.1) for the six landed property namely, CR(P) No. (SH) 3 OF 2013 Page 7 of 33
1) Niangwein 2) Ka Weishudi 3) Ka Laitiawlong 4) Ka Umeitnai 5) Ka Proh U Kha and 6) Ka Langsah. Their claim is that the six plots belong to them as they are the descendants from late Ka Rynta and that U Dar and others have no right as they are the descendants from ka Iang. This matter came up for hearing before the Judge, District Council Court United Khasi and Jaintia Hills, Shillong Shri. C. Lyngdoh in Misc. Case No.51 of 1954. After hearing the parties and detail perusal of the records the learned Judge by order and judgment dated 9.5.1955 dismissed the petition of the petitioners who are the predecessors of the present plaintiffs with cost.
6.9. That the house of Dar and Ka Jylla Nongspung has been confirmed as the khadduh house (iing khadduh) by judgment dated 25.6.1922 (Annexure-I) passed by the court of the Lyngskor and his Durbar, and there is no further dispute after that till date. The plaintiffs and their predecessors are distant relatives from the defendant No.1 and her predecessors.
6.10. That in the year 1966 there was a dispute between the descendants of late ka Jylla Nongspung (iing khadduh) over the four plots of lands namely 1) Umaitnai 2) Proh u kha 3) Langsah 4) Wahumbah, for which a Title Suit was instituted before the Court of the Syiem of Khyrim Syiemship. This matter went up to the Hon'ble Gauhati High Court in second Appeal No. 3(SH) 1976, and by judgment dated 30.7.1980 the Hon'ble High Court settled the matter on the basis of a joint compromise petition by the parties in which the mother of defendant No. 1 late ka Jeirmai Nongspung who is the daughter of late ka Jylla Nongspung was recognized as the khadduh by the opposite parties/respondents.
6.11. That inspite of the said judgment dated 30.7.1980 passed by the Hon'ble High Court there are illegal occupation of the said land by the close relatives of the defendant No. 1 and that complaints/FIRs were lodged with the police from time to time. Complaint cases were also filed before the Courts which are still pending for disposal. The defendant No. 1also state that a contempt proceeding is also pending before the Hon'ble High Court against the said relatives of defendant No. 1 for violating the High Court Judgment dated 30.7.1980.
CR(P) No. (SH) 3 OF 2013 Page 8 of 336.12. That the answering defendant No. 1 also submit that based on the aforesaid judgment dated 30.7.1980 passed by the Hon'ble High Court the Syiem of Khyrim Syiemship on an application made by the mother of defendant No. 1 into Ka Jairmai Nongspung, deputed four officials from his office for a spot survey and local inspection of the four plots of land, and thereafter submitted a report dated 16.5.1983 before the Syiem of Khyrim. And on the basis of this report the Syiem and his Durbar confirmed the right and title of the defendant No. 1 to the said four plots of land by his judgment (Rai) dated 29.11.1983.
6.13. That the defendants further submit that in the year 1980 the Government of Meghalaya acquired a portion of the land at 1) Proh U Kba
2) Umeitnai 3) Wahumbah for construction of a PWD road called Thangsning-Thynroit Road. As there was a dispute for compensation of land between the mother of defendant No. 1 and her close relatives the matter was referred to the Special judicial Officer, Shillong being LA Case No. 48 (K) 1980 between Ka Jairmai Nongspung vrs Ka Tidian Nongspung and others; and after taking evidences and hearing the learned Court decreed the compensation in favour of Ka Jairmai Nongspung (mother of defendant No.1) by its order dated 5.7.1993.
6.14. That recently the plaintiffs had applied before the Sub Registrar, Shillong for execution of a declaration deed for the seven plots of land (suit lands) by the plaintiffs, but on objection by the defendant No. 1 and after hearing and perusing the volume of records submitted by the defendant No. 1 the Sub Registrar rejected the said application filed by the plaintiffs.
6.15. That the predecessors of the plaintiffs in the previous suits of 1922 on wards never laid claim over the plot of land called ―Wahumbah‖ which is one of the plots of land belong to the defendant No. 1 from the time of her predecessors, and as the then plaintiff u Phieng Nongspung of the 1922 suit ignored the same and declared that the said plot is a raj land as appeared in the survey/Inspection report dated 7.11.1923 (Annexure-II), by the judgment dated 30.7.80 passed by the Hon'ble High Court confirmed that the said land along with the other three plots of land belong to the defendant No.1.
CR(P) No. (SH) 3 OF 2013 Page 9 of 336.16. That for the other three plots namely 1) Ka Niangwein 2) Ka Weishudi and 3) Ka Laid u long claimed by the plaintiffs in the instant suit along with the other four plots, the Syiem of Khyrim Shiemship and his Durbar by his judgment dated 23.12.1926 confirmed that the said three plots are to be enjoyed by the plaintiffs. This was also clearly indicated in the judgment dated 5.5.1955 passed by the Judge, District Council Court, Shillong in Misc. Case No. 51 of 1954 (Annexure-XI) wherein the Claim of U Bur and U Ium Nongspung (predecessors of the plaintiffs) was dismissed.
6.17. That the answering defendant states that at Annexure-II of the plaint given by the plaintiffs, which is the genealogical Table given by them, mentioning the names of u Phiang, u Nang both sons of Ka Klir Nongspung, then U Pom Nongspung son of Ka Bon, U Byllai Son of Ka Mih Nongspung, U Sop son of Ka Bon, U Bur son of Ka Shir, U Lum Son of Ka Kyrhon, U Thro son of Ka Kjiej and many other witnesses who appeared in all the previous suits mentioned above clearly indicated that they are the predecessors of the petitioners/plaintiffs, and all the suits filed by them and against them for the same plots of land had been decided against them.
6.18. That the plaintiffs have also intentionally omitted the names and the word of late Ka Jylla Nongspung (grandmother of the defendant No.1) and her descendants in the above ganemological Table given by them which is contrary to the ganemological Table which have already been confirmed by the Court of the Lyngskor and by the Syiem of Khyrim Syiemship (Annexure- I and II) by their judgment and decision in the year 1922-23.
6.19. That Annexure-3 of the plaint was recently prepared and manufactured by the plaintiffs only to lay claim over the private ancestral land of the defendant No.1 and that it does not tally or confirm with the survey report of the syiem of Khyrim since the year 1922 till date.
6.20. That all the NOCs that is Annexure-4 to Annexure-637 of the plaint are false certificates issued by the Rangbah Kyntoit and the Rangbah Kur Nongspung and that the Sordar of Thynroit village did not issue any NOC as he is the sole authority as the plots of land Langsah and Wahumbah CR(P) No. (SH) 3 OF 2013 Page 10 of 33 and a portion of Umeitnai fall within his jurisdiction. The defendant states that there is no confirmation from the Syiem of Khyrim over the said NOC issued by the Rangbah Kyntoit and Rangbah Kur. The defendant No.1 states that in the year 2000 the four Sordar Viz 1) Sordar Shnong Mawlali
2) Sordar Shnong Thynroit 3) Sordar Shnong Umsaw and 4) Sordar Shnong Mawbir by a joint petition dt.16.3.2000 to the defendant No.1 requested her to part/allowed a piece of land at Umeitnai for about 1000 sq.ft. to construct a water tank for the use of the said four villages which clearly shows that the defendant No.1 is the owner of the said plot.
6.21. That the defendant No.1 and her predecessors had been vexed and harassed now for more than 80 years by the plaintiffs and their predecessors on the same subject matter which had been decided and adjudicated by the competent court and forums, and the same had been laid to rest once and for all, and that it cannot be re-open again and again by the same persons which is against the prevailing law and custom of the land.
6.22. That justice, equity and good conscience demands that the defendant cannot be vexed again and again over the same issue and same subject matter by the same parties, and that the plaintiffs by instituting the instant suit is only wasting the precious time and energy of the courts, and as such the instant suit is liable to be dismissed.
6.23. That the plaintiffs did not come with a clean hand before this Hon'ble Court but have suppressed and concealed all the material facts as already indicated above.
6.24. That the statement made at paragraph 2 of the plaint is not admitted and the same is denied. The defendant No.1 states that late Ka Jylla Nongspung is also from the womb of late Ka Rynta and a permanent resident of Thynroit village since the time of her predecessors.
6.25. That the statements made at paragraphs 3 & 4 of the plaintiffs are matter of records. That the statements made at paragraph 5 & 6 is not admitted and the same is denied. The answering defendant states that the foregoing paragraphs stated above will answer the same.
CR(P) No. (SH) 3 OF 2013 Page 11 of 336.26. That the statements made at paragraph 7, 8 and 9 of the plaint is not admitted and the same is denied. The answering defendant states that all the 7 plots of land are separated from one another and having their own boundaries and mawbris. The survey reports and rough sketch map shown above clearly proves this.
The defendant No.1 also states that at no point of time the plaintiffs or their representatives managed and controlled the 4 plots of land mentioned above inherited by her from her predecessors, and that the same was under the exclusive control and possession of defendant No.1 and her tenants.
When the plaintiffs illegally trespassed into the plots of land called Ka Langsah and Proh U Kba and started digging the said land and forcibly planted crops therein, the defendant No.1 lodged a complaint before the police for the said criminal acts of the plaintiffs but due to the inaction of the police the defendant No.1 filed the criminal case against the 15 persons being CR Case No.9 of 2003.‖
7. From the conjoint reading of the pleaded case of the petitioners/plaintiffs in the plaint and that of the respondent/defendant in the written statement, it appears that the petitioners/plaintiffs had concealed the earlier cases between the ancestors of the petitioners/plaintiffs on one side and the ancestors of the respondent/defendant / and herself on another side in different courts of competent jurisdiction in the plaint of T.S. No.3/2004. On the pleadings of the parties, the learned trial court framed 13 issues which are as follows:-
(1) Whether the plaintiffs have any cause of action to file the instant suit?
(2) Whether the plaintiffs have any locus standi to file the instant suit?CR(P) No. (SH) 3 OF 2013 Page 12 of 33
(3) Whether the suit is barred by the principles of res-judicata, waiver, acquiescence, limitation and estoppels?
(4) Whether this Court has jurisdiction to try the instant case.
(5) Whether the suit is bad for mis-joinder and non-joinder of necessary parties?
(6) Whether the suit is under valued and proper court fee was not paid?
(7) Whether the suit is maintainable in its present form?
(8) Whether the subject matter of the instant suit has already been adjudicated and decided in the previous suit? If so, whether the instant suit is barred by law?
(9) Whether (L) U Phieng, U Phom, U Byllai, U Meng, U Sap, U Bul, U Jum and U Thris Nongspung are the predecessors of the plaintiff?
(10) Whom has been recognized as the Khadduh of the Nongspung clan?
(11) Who is/are under the management and control of the suit land?
(12) Who is legally entitled over the suit lands?
(13) To what reliefs are the parties entitled to?
According to the respondent/defendant, as the right and title of the defendant to the suit properties in T.S. No.3/2004, had already been decided by the competent courts in the earlier suits, the suit is barred by principles of res-
judicata, waiver, acquiescence and estoppels. The learned trial court by an order dated 03.06.2005, directed the parties to produce their evidence for deciding the issues No.3, 8 & 9. The petitioners/plaintiffs examined as many as 6(six) witnesses and the respondent/defendant examined as many as 4(four) witnesses in support of their respective cases for deciding the issues No.3, 8 & 9 in their CR(P) No. (SH) 3 OF 2013 Page 13 of 33 favour. The learned trial court vide judgment and order dated 20.12.2011, had decided the issue No.9 in favour of the defendant/respondent and held that (L) U Phieng, U Phom, U Byllai, U Meng, U Sap, U Bul, U Jum and U Thris Nongspung are the predecessors of the plaintiffs but decided the issues No.3 & 8 against the respondent/defendant and held that the suit is not barred by the principles of res-
judicata because the predecessors and descendants of the plaintiffs had never represented themselves as Rangbah Kur or manager of the Nongspung clan of the plaintiffs in the earlier suits. The relevant portion of the findings of the learned trial court in the judgment and order dated 20.12.2011 reads as follows:-
―Issue No.9 is decided that (L) U Phieng, U Phom, U Byllai, U Meng, U Sap, U Bul, U Jum and U Thris Nongspung are the predecessors of the plaintiff but the instant suit is not barred by the principles of res-judicata just because they are the predecessors and the descendants of the plaintiffs since they have never represent themselves as the ‗Rangbah Kur' or manager of the Nonspung clan or of the plaintiffs.
Therefore, the three issues of the instant suit is hereby decided accordingly.‖
8. The respondent/defendant being aggrieved by the judgment and order of the learned trial court dated 20.12.2011 filed an appeal being Misc. Civil Appeal No.9/2012 in the Court of the Judge, District Council Court, Khasi Hills, Shillong. The learned trial court vide judgment and order dated 20.12.2012, had allowed the appeal i.e. Misc. Civil Appeal No.9/2012, wherein and where-under, the learned Appellate court by giving reasons after re-appreciation of the evidences held that the T.S.No.3/2004 is barred by principles of res-judicata, waiver, acquiescence limitation and estoppels. The relevant portions of the judgment and order dated 20.12.2012 read as follows:-
―All the above documents proved by the plaintiffs/respondents clearly shows that several cases have been instituted and fought between the predecessors of the Appellant/Defendants and the Predecessors of the Respondents/Plaintiffs where all the above CR(P) No. (SH) 3 OF 2013 Page 14 of 33 cases have been decided in favour of the predecessors of the Appellant/Defendants.
The statements of PW 1 and PW 2 as reproduced above have further been corroborated and repeated by PW 3 in his examination-in-chief.
The Defendant/Appellant when she examined herself as DW 2 stated as under in her examination-in-chief: ―In the year 1921 there was a dispute regarding the suit lands ―Umeitnai‖, ―Proh-U-Khah‖ and ―Ka Langsah‖. The case was instituted by one (L) U Phieng Nongspung on behalf of 31 families of the Nongspung Clan from Thynroit village. The said U Phieng Nongspung is the ancestor of the present plaintiff. The said suit was filed before the Court of the Lyngskor of Raid Nongkrem, Khyrim Syiemship. In the said suit the Plaintiff disputed the right and title of the Iing Khadduh of the Nongpung Clan over the above mentioned suit lands. The court of the Lyngskor decided the case in favour of my grant mother, (L) Ka Jylla Nongspung and her brother (L) U Dar Nongspung by judgment dated 25.8.1922 confirming the right and title of the Iing Khadduh over the suit lands ...... Paper Mark-2 is the said judgment of the Lyngskor which I obtained from the office of the Syiem of Khyrim. The original of the same has been misplaced by me. Against the judgment dated 25.8.1922, (L) U Phieng Nongspung preferred an Appeal before the Court of the Syiem of Khyrim Syiemship in the month of September, 1922. Thereafter, the Syiem of Khyrim made a spot inquiring of the suit lands along with his myntris. The Syiem of Khyrim made a report of the Inquiry (Sorjamin) along with a sketch map of the suit lands in the year 1923. Ext. E is a certified copy of the Sorjamin report dated 7.11.1923 which also includes the sketch map of the suit lands prepared by the Syiem. After making the Inquiry Report, the Court of the Syiem of Khyrim gave judgment dated 3.12.1923 confirming the judgment dated 25.8.1922 of the Lyngskor in the suit Ext.F is a certified copy of the said judgment dated 3.12.1923.‖ Further, DW 2 (Ka Oscilian Nongspung) stated as under in her examination-in-chief: ―Again in the year 1950 (L) U Bur Nongspung, (L) U Jum Nongspung and other filed a suit in the Court of Lyngskor, Raid Nongkrem, Khyrim Syiemship against (L) U Dar Nongspung, (L) U Mahim Nongspung, (L) U Su Nongspung and others who are my maternal uncles claiming the land, Niangwein, Weishudi, Laitulong, Umeitnai, Proh-U-Khah and Langsah as belonging to them because they are from the womb of (L) Ka Rynta Nongspung and whereas the Defendants therein are from the wombs of (L) Ka Jylla Nongspung. The Court of the Lyngskor rejected the suit as the same has already been decided earlier. The Plaintiff being aggrieved with the same, file a petition before the Court of the Judge, District Council Court, Shillong being Misc.
Case No.51 of 1954. The Ld. Judge (L) C. Lyngdoh rejected the said petition by his order dated 9.5.1955 with cost confirming that the lands Proh-U-Khah, Umeitnai and Langsah belongs to my grandmother (L) Ka Jylla Nongspung and order that other lands, namely, Niangwein, Laitulong and Weishudi are to be enjoyed jointly by the Plaintiffs and the defendants in the suit of 1950. Ext. K CR(P) No. (SH) 3 OF 2013 Page 15 of 33 is a certified copy of the Judgment dated 9.5.1955......In the year 1966 there was a dispute between the descendants from the womb of (L) Ka Jylla Nongspung over the lands, namely, Proh-u-Khah, Umeitnai, Langsah and Wahumbah which were claimed by Ka Tidian Nongspung. Mr mother, (L) Ka Jiermai Nongspung filed a suit before the Addl. Subordinate District Council Court, Khyrim Syiemship against the said Ka Tidian Nongspung and others over the above said lands. The suit was decreed in favour of my late mother. The matter went up to the Hon'ble High Court. A joint compromise petition was filed by the parties. This was in the year 1980. Ext. L is a certified copy of the said compromise petition. On the basis of the compromise arrived at, the Hon'ble High Court passed order dated 30.7.1980 in Second Appeal No.3 (H) of 1975 disposing of the same ......But again a dispute arose between my late mother and Ka Tidian Nongspung over the compensation passed by the Government for the land acquired for construction of a P.W.D Road which runs through the suit lands Proh-u-Khah, Umeitnai and Wahumbah. The matter was referred to Court and LA Case No. 48 (K) of 1990 was registered. The case was decided in favour of my late mother by order dated 5.7.1993. Compensation was also paid to her, Ext,Q is a certified copy of the said order dated 5.7.1993.
On careful perusal of the evidence adduced by the D.W.2, it is found that her statement as reproduced above has not been able to challenge at the time of her cross-examination.
Further, the statement of the Defendant (D.W.2) as reproduced above has further been corroborated by D.W. 4 (U Phrikson Lyngdoh) who stated as under in his examination-in-chief: ―I know about the case between U Phieng Nongspung and U Dar and Ka Jylla Nongspung which was decided by the Lyngskor and the Bakhraw of Raid Nongkrem in the year 1922. The case is in respect of the lands Umeitnai, Proh-u-Khah and Langsah and also regarding the dispute of the Iing Khadduh of the Nongspung Clan of Thynroit Village. The said case was decided in favour of ka Jylla Nongspung. The Defendant is the grand daughter of (L) Ka Jylla Nongspung...... There were local inspections of the above said three lands made by the office of the Syiem of Khyrim from the year 1923 onwards. Ext. E is a certified copy of the local inspection report over the land Umeitnai, Proh-u-Khah and Langsah along with a sketch may of the lands. Ext. E was obtained from the Additional Subordinate District Council Court, Khyrim Syiemship. Ext. E (1) is my signature. After the said local inspection, the Durbar of the Syiem of Khyrim has passed Judgement dated 3.12.1923 with a brief story of the case. The said Judgement dated 3.12.1923 was given over the Appeal of (L) U Phieng Nongspung against the judgement dated 25.8.1922 passed by the Lyngskor in respect of the aforesaid three lands. The Judgement dated 3.12.1923 upheld the earlier Judgement dated 25.8.1922 of the Lyngskor and Bakhraw of Raid Nongkrem. Ext. F is a certified copy of the Judgement dated 3.12.1923. The said exhibit was given from the Addl. Subordinate District Council Court, Khyrim Syiemship. Ext. F (1) is my signature ................ I know about the Judgement and the then Judge, District Council Court, Shillong, Shri C.lyngdoh. We have a copy of the said Judgement in our office. After the above a dispute arose between the descendants of (L) Ka Jylla Nongspung over the lands Proh-u-Khah, Umeitnai, Wahumbah and Langsah.
CR(P) No. (SH) 3 OF 2013 Page 16 of 33The dispute was later comproised before the Hon'ble Gauhati High Court. After the said compromise the Syiem the Syiem of Khyrim has directed his officials to go for a local inspection of the above disputed lands. I an one of the Myntris who conducted the local inspection in accordance with the Hon'ble High Courts order. We submitted a report accordingly along with a sketch maps of the lands. Ext. M is the said local inspection report submitted by us to the Syiem of Khyrim. The rough sketch maps were prepared by me which are Exts. N and D. Ext. N is in respect of the land called Langsah and Ext.O is over the land called Wahumbah. On the basis of the local inspection report submitted by us, the Syiem of Khyrim and his Durbar passed order daed 29.11.1983 confirming the inspection made by us. Ext. P is a certified copy of the said order dated 29.11.1983 which was issued from our Courts Office‖.
The Statements of DW 4 as above has not been able to challenge at the time of his cross-examination.
I have closely perused the evidence adduced by both parties the ld. Lower Court as well as the documents proved by both parties. After careful perusal of the same, it is found that the suit lands, ―Ka Langsah‖, ―Ka Umeitnai‖, ―Ka Proh-U-Khah and ―Ka Wahumbah‖ has already been adjudicated and finally decided in the previous suits in favour of the predecessors of the Appellant vide Paper Mar- 2, Ext.F, Ext.K which are the judgments passed by the Court of the Lyngskor, Raid Nongkrem, Khyrim state on the 25.8.1922, the judgment passed by the Syiem of Khyrim dated 3.12.1923 confirming the judgment dated 25.8.1922 and order dated 9.5.1955 passed by the then Judge, District Council Court, Shillong where all the above judgments were made in favours of the predecessors of the Appellant/Defendants.
Further, as per Ext.L which is an order passed by the Hon'ble High Court and also Ext.Q passed by a Special Judge in LA Case No.48(K) of 1990 have also been decided in favour of the predecessors of the Appellant/Defendant.
Further, as appeared from the evidence, it is fund that U Pum and others who are the predecessors of the Respondents/Plaintiff have even preferred an Appeal before the Deputy Commissioner, Khasi and Jaintia Hills against the order passed by the Syiem of Khyrim, but the said Appeal was rejected by the Deputy Commissioner vide order at Paper Mark-8.
Therefore, from the evidence as reproduced above, both oral and documentary, it is proved that the suit lands, Ka Langsah, Ka Umeitnai, Ka Proh-U-Khah and Ka Wahumbah have been finally adjudicated and decided in favour of the predecessors of the Appellant/Defendants in the previous suits.
***** ***** ***** CR(P) No. (SH) 3 OF 2013 Page 17 of 33 The only plea of the Respondents/Plaintiffs is that they were not parties to the above suits/cases nor that they have authorized their predecessors to institute those cases against the predecessors of the Appellant/Defendant.
However, as already observed by me while digesting Issue No.9 above whereby I have already observed that (L) U Phieng, U Pom, U Meng, U Sop, U Bul, U Jum and U Thris Nongspung who were the parties in the previous suits/cases were the predecessors of the present Respondents/Plaintiffs, hence, I find and hold that all the decisions made against them in the previous suits are binding to the present Respondents/Plaintiffs. Further, (L) U Dar and Ka Jylla Nongspung who were parties in the previous suits/cases were also the predecessors of the present Appellant/Defendant. Hence, the question of authorization does not arise.
Therefore, in view of my above observations and findings, I find and hold that the parties and the subject matter of the suit under instant Appeal are the same with those of the previous suits/cases. I am, therefore, of the opinion that the principle of Res-judicata is applicable to the suit under instant Appeal. Since during the year 1922 onwards, the Court of the Lyngskor and the Court of the Syiem of Khyrim State were the only competent Court of jurisdiction to try Civil Suits as both the parties and the subject matter of the suit were within their territorial jurisdiction.
Sect.11 C.P.C. reads as under: ―Resjudicata - No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in the Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such Court.‖ The principle of Res-judicata is meant to end all unending litigations.
As found from the evidence on record, before the Court of the Syiem of Khyrim passed a judgment at Ext.F, has made a local inspection with regard to the suit lands through his Myntris who submitted a local inspection report at Ext.E. Therefore, in view of my above findings and observations, I find and hold that the suit under instant appeal has finally been adjudicated in the previous suits and hence the same is barred by the principles of Res-judicata, Waiver, Acquiescence limitation and estoppel and Issue No.3 and Issue No.8 is hereby disposed off.
From my above observations and findings, I am satisfied to allow the instant appeal.
CR(P) No. (SH) 3 OF 2013 Page 18 of 33The Appeal is allowed and the impugned order dated 20th December, 2011 passed by the ld. Lower Court in T.S.No.3 of 2004 is hereby quashed and set aside.‖
9. It is the concurrent findings of the learned trial court as well as the appellate court that (L) U Phieng, U Phom, U Byllai, U Meng, U Sap, U Bul, U Jum and U Thris Nongspung are the predecessors of the plaintiffs and also the competent courts in the earlier suits or criminal cases between the predecessors-
in-interest of the petitioners/plaintiffs on one side and the respondent/defendant and her predecessor on the other side in respect of the suit lands, had decided that the suit lands belong to the respondent/defendant and the predecessors of the petitioners/plaintiffs have no right, interest and title on the suit properties.
However, the learned trial court vide order dated 20.12.2011 held that in the earlier suit the predecessors-in-interest of the petitioners/plaintiffs had never represented themselves as Rangbah Kur or manager of the Nongspung clan of the petitioners/plaintiffs. From the pleaded case of the petitioners/plaintiffs and the statements of PWs, it is clear that the petitioners/plaintiffs had a clear knowledge of the earlier suits where their predecessors had fought case for the whole of Nongspung clan from the womb of (L) Ka Rynta Nongspung. But the case of the petitioners/plaintiffs in T.S.No.3/2004 is that since the predecessors-
in-interest of the petitioners/plaintiffs had never represented themselves as Rangbah Kur or manager of the Nongspung clan in the earlier suits in respect of the suit lands, the earlier decisions of the competent courts are not binding to the petitioners/plaintiffs and as such, the T.S.No.3/2004 is not barred by the principles of res-judicata. Thus, the petitioners/plaintiffs by taking hyper technical view had stated that T.S.No.3/2004 is not barred by principles of res-judicata.
This Court is of the considered view that in the given case, the petitioners/plaintiffs cannot take this hyper technical view and the T.S.No.3/2004 is barred by the principles of res-judicata. Regarding this point, it would be sufficed to refer to the decisions of the Apex Court on two cases:-
CR(P) No. (SH) 3 OF 2013 Page 19 of 33(i) Singhai Lal Chand Jain (Dead) v. Rashtriya Swayamsewak Sangh, Panna & Ors: (1996) 3 SCC 149; and
(ii) M. Nagabhushana v. State of Karnataka & Ors: (2011) 3 SCC 408; and
10. The Apex Court in Singhai Lal Chand Jain (Dead) case (Supra) held that mere non-compliance of Order 1 Rule 8 of the CPC in earlier suit will not be the ground that subsequent suits is not barred by the principles of res-
judicata. The principles of res-judicata is not a technical doctrine. It is a fundamental principle that no one ought to be vexed twice in a litigation if it appears to a court that it is for one and the same cause. Paras 10, 11 & 13 of the SCC in Singhai Lal Chand Jain (Dead) case (Supra) read as follows:-
"10. Therefore, the respondents now claim under the same title in the previous suit and thereby they are bound by the decree. The doctrine of evolved the public policy to prevent trial of an issue twice over. It clearly applies to the facts of the case. Accordingly, they are precluded to raise objections on behalf of the Sangh by filing the objections.
11. In Surayya Begum [Mst.] v. Mohd. Usman & Ors [(1991) 3 SCC 114], this Court has considered the effect of Explanation VI of Section 11 and held thus: (SCC pp.117-18, Para 9) "The principle of representation of the interest of a person, not impleaded by name in a judicial proceeding, through a named party is not known. A karta of a Joint Hindu Family has always been recognized as a representative of the other members of the Joint Hindu Family, and so has been a trustee. In cases where the provisions of Order 1, Rule 8 ofthe Civil Procedure Code are attracted a named party in a suit represents the other persons interested in the litigation, and likewise a receiver appointed in one case represents the interest of the litigating parties in another case against a stranger. Similarly the real owner is entitled to the benefits under a decree obtained by his benamidar against a stranger and at the same time is also bound by the decision. Examples can be multiplied. It is for this reason that we find Explanation VI in the following words in Section 11 of the Code of Civil Procedure:
"Explanation VI. - Where persons litigate bona fide in respect of a public right or of a private right claimed in CR(P) No. (SH) 3 OF 2013 Page 20 of 33 common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating".
This, of course, is subject to the essential condition that the interest of a person concerned has really been represented by the others; in other words, his interest has been looked after in a bona fide manner. If there by any clash of interests between the person concerned and his assumed representative or if the latter due to collusion or for any other reason mala fide neglects to defend the case, he cannot be considered to be a representative. The issue, when it becomes relevant, has, therefore, to be answered with reference to the facts and circumstances of the individual case. There may be instances in which the position is absolutely clear beyond any reasonable doubt one way or the other and the question can be settled without any difficulty; but in other cases the issue may have to be decided with reference to relevant evidence to be led by the parties. Surayya Begum's case (1991) 3 SCC 114) is of this class while Renu Sharma's appeal belongs to the first category".
13. Thus it could be held that the Sangh having been duly represented in the previous proceedings and conducted the litigation on behalf of the Sangh bona fide and were unsuccessful in the suit, no one on behalf of the Sangh can lay any objection in the execution nor plead nullity of the decree. The doctrine of res judicata prohibited the members of the Sangh to obstruct the execution of the decree. The decree of ejectment binds every member of the Sangh and, therefore, the appellant is entitled to have the decree executed and possession taken.‖
11. The Apex Court in M. Nagabhushana case (Supra) had considered the principles of res-judicata and Section 11 of the CPC, 1908. The Apex Court clearly held that no one ought to be vexed twice in a litigation if it appears to court that it is for one and the same cause. Judgment of a proper trial by a competent court has to be treated as final and conclusive determination of issues involved in matter. The Apex Court further held that the plea of nature of principles of res-judicata should not be rejected on hyper technical ground, inasmuch as, the doctrine of res-judicata is not a technical doctrine. The doctrine of res-judicata is for promoting honest and fair administration of justice and also CR(P) No. (SH) 3 OF 2013 Page 21 of 33 that principles of res-judicata is a fundamental principle. Paras 12, 13, 15, 19, 20 & 21 of the SCC in M. Nagabhushana case (Supra) read as follows:-
―12. The principles of Res Judicata are of universal application as it is based on two age old principles, namely, `interest reipublicae ut sit finis litium' which means that it is in the interest of the State that there should be an end to litigation and the other principle is `nemo debet his ve ari, si constet curiae quod sit pro un aet eademn cause' meaning thereby that no one ought to be vexed twice in a litigation if it appears to the Court that it is for one and the same cause. This doctrine of Res Judicata is common to all civilized system of jurisprudence to the extent that a judgment after a proper trial by a Court of competent jurisdiction should be regarded as final and conclusive determination of the questions litigated and should for ever set the controversy at rest.
13. That principle of finality of litigation is based on high principle of public policy. In the absence of such a principle great oppression might result under the colour and pretence of law in as much as there will be no end of litigation and a rich and malicious litigant will succeed in infinitely vexing his opponent by repetitive suits and actions. This may compel the weaker party to relinquish his right.
The doctrine of Res Judicata has been evolved to prevent such an anarchy. That is why it is perceived that the plea of Res Judicata is not a technical doctrine but a fundamental principle which sustains the Rule of Law in ensuring finality in litigation. This principle seeks to promote honesty and a fair administration of justice and to prevent abuse in the matter of accessing Court for agitating on issues which have become final between the parties.
15. The learned Judge also noted that in Bhulli Case: (ILR (1927) 8 Lah 384) also noted that in British India the rule of Res Judicata was first introduced by Section 16 of the Bengal Regulation 3 of 1973 which prohibited the Zilla and City Courts from entertaining any cause which, from the production of a former decree or the record of the Court, appears to have been heard and determined by any Judge or any Superintendent of a Court having competent jurisdiction. The learned Judge found that the earliest legislative attempt at codification of the law on the subject was made in 1859, when the first Civil Procedure Code was enacted, whereunder Section 2 of the Code barred every Court from taking cognizance of suits which, on the same cause of action, have been heard and determined by a Court of competent jurisdiction. The learned Judge opined, and in our view rightly, that this was partial recognition of the English rule in so far as it embodied the principles relating to Estoppel by judgment or Estopel by record. Thereafter, when the Code was again revised in 1877, the operation of the rule was extended in Section 13 and the bar was no longer confined to the retrial of a dispute relating to the same cause of action but the prohibition was extended against reagitating an issue, which had been heard and finally decided between the same parties in a CR(P) No. (SH) 3 OF 2013 Page 22 of 33 former suit by a competent court. The learned Judge also noted that before the principle assumed its present form in Section 11 of the Code of 1908, the Section was expanded twice. However, the learned Judge noted that Section 11 is not exhaustive of the law on the subject.
19. A Constitution Bench of this Court in Devilal Modi v. STO:
(AIR 1965 SC 1150) has explained this principle in very clear terms: (AIR p.1152 para 7).
"7. ....... But the question as to whether a citizen should be allowed to challenge the validity of the same order by successive petitions under Art. 226, cannot be answered merely in the light of the significance and importance of the citizens' fundamental rights. The general principle underlying the doctrine of res judicata is ultimately based on considerations of public policy. One important consideration of public policy is that the decisions pronounced by courts of competent jurisdiction should be final, unless they are modified or reversed by appellate authorities; and the other principle is that no one should be made to face the same kind of litigation twice over, because such a process would be contrary to considerations of fair play and justice (vide : (Daryao v. State of U.P. AIR 1961 SC 1457 : (1962) 1 SCR
574).
20. This Court in AIMO: (2006) 4 SCC 683 explained in clear terms that principle behind the doctrine of Res Judicata is to prevent an abuse of the process of Court. In explaining the said principle the Bench in AIMO: (2006) 4 SCC 683 relied on the following formulation of Somervell, L.J. in Greenhalgh v. Mallard, (1947) 2 ALL ER 255 (CA): (All ER p.257 H): (AIMO case (2006) 4 SCC 683, SCC p.700, para 39).
"39. ...... I think that on the authorities to which I will refer it would be accurate to say that res judicata for this purpose is not confined to the issues which the court is actually asked to decide, but that it covers issues or facts which are so clearly part of the subject-matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them."
(emphasis is supplied in AIMO case (2006) 4 SCC 683) The Bench in AIMO case (2006) 4 SCC 683) also noted that the judgment of the Court of Appeal in Greenhalgh: (1947) 2 ALL ER 255 (CA) was approved by this Court in State of U.P. v. Nawab Hussain (1977) 2 SCC 806: 1977 SCC (L&S) 362 at p. 809, para 4. CR(P) No. (SH) 3 OF 2013 Page 23 of 33
21. Following all these principles a Constitution Bench of this Court in Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra: (1990) 2 SCC 715: 1990 SCC (L&S) 339: (1990) 13 ATC 348 laid down the following principle: (SCC p. 741, Para 35).
"35. ........ an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had decided as incidental to or essentially connected with subject matter of the litigation and every matter coming into the legitimate purview of the original action both in respect of the matters of claim and defence. Thus, the principle of constructive res judicata underlying Explanation IV of Section 11 of the Code of Civil Procedure was applied to writ case. We, accordingly hold that the writ case is fit to be dismissed on the ground of res judicata"
12. In the present case, as discussed above, the predecessors-in-
interest of the petitioners/plaintiffs had all along fought the earlier cases in the courts of the competent jurisdiction in respect of the suit lands for the whole Nongspung clan (from the womb of (L) Ka Rynta Nongspung) and as such, the present suit i.e. T.S.No.3/2004 shall be barred by the principle of estoppels also.
The principle of estoppels is a rule creating or defeating a right as well as a rule of evidence. Reference may be made to the decision of the Apex Court in B.L. Sreedhar & Ors v. K.M. Munireddy (Dead) & Ors: (2003) 2 SCC 355. The Apex Court held that in B.L. Sreedhar case (Supra) held that estoppel is a rule of evidence and the general rule is enacted in Section 115 of the Evidence Act, 1872 which lays down that when one person has by his declaration, act or omission caused or permitted another person to believe a thing to be true and to act upon that belief, neither he nor his representative shall be allowed in any suit or proceeding between himself and such person or his representative to deny the truth of that thing. Estoppel, then, may itself be the foundation of a right as against the person estopped, otherwise the principle of estoppel would not afford any protection to the person by whom it may be invoked nor would create any disability in the person against whom it operates in cases affecting rights. Where rights are involved, estoppel may with equal justification be described both as a CR(P) No. (SH) 3 OF 2013 Page 24 of 33 rule of evidence and as a rule creating or defeating rights. Paras 13, 14, 15, 18, 19 & 20 of the SCC in B.L. Sreedhar (Supra) read as follows:-
"13. Estoppel is a rule of evidence and the general rule is enacted in Section 115 of the Indian Evidence Act, 1872 (in short ―the Evidence Act‖) which lays down that when one person has by his declaration, act or omission caused or permitted another person to believe a thing to be true and to act upon that belief, neither he nor his representative shall be allowed in any suit or proceeding between himself and such person or his representative to deny the truth of that thing. (See Sunderabai v. Devaji Shankara Deshpande (AIR 1954 SC 82).
14. "Estoppel is when one is concluded and forbidden in law to speak against his own act or deed, yea, though it be to say the truth" - Co.Litt 352(a), cited in Ashpital v. Byran: (1863) 3 B&S 474: 122 ER 179: 32 LJQB 91 at p.(489); Simm v. Anglo American Telegraph Co.: (1879) 5 QBD. 188: 49 LJQB 392: 42 LT 37 (CA) per Bramwell L.J. at p. 202; Halsbury, Vol. 13, Para
488. So there is said to be an estoppel where a party is not allowed to say that a certain statement of fact is untrue, whether in reality it be true or not. Estoppel, or conclusion, as it is frequently called by the older authorities, may therefore be defined as a disability whereby a party is precluded from alleging or proving in legal proceedings that a fact is otherwise than it has been made to appear by the matter giving rise to that disability. Halsbury, Vol. 13, para. 448). The rule on the subject is thus laid down by Lord Denman, in Pickard v. Sears: (1837) 6 Ad. & El: 112 ER 179) Ad & E at p.474: ER p.181.
"But the rule is clear, that, where one by his words or conduct willfully causes another to believe the existence of a certain state of things, and induces him to act to that belief, so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time."
"The whole doctrine of estoppel of this kind, which is fictitious statement treated as true, might have been founded in reason, but I am not sure that it was. There is another kind of estoppel - estoppel by representation- which is founded upon reason and it is founded upon decision also." Per Jessel, M.R. in General Finance & Co.v. Liberator: (1878) 10 Ch D 15: (1874-80) All ER Rep Ext 1597: 39 LT 600, Ch.D at p.20.
See also in Simon v. Anglo-American Telegraph Co.: (1879) 5 QBD 188: 49 LJQB 392: 42 LT 37 (CA at p. 202, where Bramwell, L.J. said" An estoppel is did to exist where a person is compelled to admit that to be true which is not true and to act upon a theory which is contrary to the truth."CR(P) No. (SH) 3 OF 2013 Page 25 of 33
15. On the whole, an estoppel seems to be when, in consequences of some previous act or statement to which he is either party or privy, a person is precluded from showing the existence of a particular state of facts. Estoppel is based on the maxim, allegans contraria non est audiendus (a party is not be heard to allege the contrary) and is that species of presumption juries et de jure (absolute or conclusive or irrebutable presumption), where the fact presumed is taken to be true, not as against all the world, but against a particular party, and that only by reason of some act done, it is in truth a kind of argumentum ad hominem.
18. Though estoppel is described as a mere rule of evidence, it may have the effect of creating substantive rights as against the person estopped. An estoppel, which enables a party as against another party to claim a right of property which in fact he does not possess is described as estoppel by negligence or by conduct or by representation or by holding out ostensible authority.
19. Estoppel, then, may itself be the foundation of a right as against the person estopped, and indeed, if it were not so, it is difficult to see what protection the principle of estoppel can afford to the person by whom it may be invoked or what disability it can create in the person against whom it operates in cases affecting rights. Where rights are involved estoppel may with equal justification be described both as a rule of evidence and as a rule creating or defeating rights. It would be useful to refer in this connection to the case of Depuru Veeraraghava Reddi v. Depuru Kamalamma: (AIR 1951 Madras 403: (1950) 2 MLJ 575) where Vishwanatha Sastri, J., observed: (AIR p.405, para 7).
"Estoppel though a branch of the law of evidence is also capable of being viewed as a substantive rule of law in so far as it helps to create or defeat rights which would not exist and be taken away but for that doctrine. .........."
20. Of course, an estoppel cannot have the effect of conferring upon a person a legal status expressly denied to him by a statute. But where such is not the case a right may be claimed as having come into existence on the basis of estoppel and it is capable of being enforced or defended as against the person precluded from denying it.
Revisonal jurisdiction of the High Court under Section 115 of the CPC and its limitation.
13. For considering the revisional jurisdiction of the High Court, it would be profitable to quote Section 115 of the CPC, which reads as follows:-
CR(P) No. (SH) 3 OF 2013 Page 26 of 33―115. Revision.- (1) The High Court may call for the record of any case which has been decide by any court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate court appears --
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit:--
[Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.] [(2) The High Court shall not, under this section vary or reverse any decree or order against which an appeal lies either to the High Court or to any court subordinate thereto.] [(3) A revision shall not operate as a stay of suitor other proceeding before the Court except where such suit or other proceeding is stayed by the High Court.] [Explanation .- In this section, the expression ―any case which has been decided‖ includes any order made, or any order deciding an issue, in the course of a Suit or other proceeding.]‖
14. While exercising the jurisdiction under Section 115 of the CPC, it is not competent to the High Court to correct errors of fact however gross or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. The words "illegality" and "with materials irregularity" as used in Clause (c) do not cover either errors of fact or of law; they do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated by this clause may relate either to breach of some provision of law or to material defects of procedure affecting the ultimate decision, and not to errors whether of fact or of law, after the prescribed formalities have been complied with. (Ref:- M/s D.L.F. Housing and Construction Co. (P) Ltd. Vs. Sarup Singh & Ors: AIR 1971 SC 2324 ). Para 8 of the M/s D.L.F. Housing and Construction Co. (P) Ltd. case (Supra) reads as follows:-
CR(P) No. (SH) 3 OF 2013 Page 27 of 33‖8. The position thus seems to. be firmly established that while exercising the jurisdiction under s. 115, it is not competent to the High Court to correct errors of fact however gross or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. Clauses (a) and (b) of this section on their plain reading quite clearly do not cover the present case. It was not contended, as indeed it was not possible to contend, that the learned Additional District Judge had either exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction so vested in him, in recording the order that the proceedings under reference be stayed till the decision of the appeal by the High Court in the proceedings for specific performance of the agreement in question. Clause (c) also does not seem to apply to the case in hand. The words "illegally" and "with material irregularity" as used in this clause do not cover either errors of fact or of law; they do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated by this clause may, in our view, relate either to breach of some provision of law or to material defects of procedure affecting the ultimate decision, and not to errors either of fact or of law, after the prescribed formalities have been complied with. The High Court does not seem to have adverted to the limitation imposed on its power under s. 115 of the Code. Merely because the High Court would have felt inclined, had it dealt with the matter initially, to come to a different conclusion on the question of continuing stay of the reference proceedings pending decision of the appeal, could hardly justify interference on revision under s. 115 of the Code when there. was no illegality or material irregularity committed by the learned Additional District Judge in his manner of dealing with this question. It seems to us that in this matter the High Court treated the revision virtually as if it was an appeal.‖
15. Revisonal jurisdiction - Erroneous decision on a question of fact or of law having no relation to question of jurisdiction of Subordinate Officer cannot be corrected. It is well settled that the revisional jurisdiction of the High Court is confined to cases of illegal or irregular exercise or non-exercise or illegal assumption of the jurisdiction by the subordinate courts. If a subordinate court is found to possess the jurisdiction to decide a matter, it cannot be said to exercise it illegally or with material irregularity even if it decides the matter wrongly. In other words, it is not open to the High Court while exercising its jurisdiction under Section 115 of the CPC to correct errors of fact howsoever gross or even errors of law unless the errors have relation to the jurisdiction of the court to try the dispute itself. (Ref:- Sher Singh (dead) through LRs Vs. Joint Director of CR(P) No. (SH) 3 OF 2013 Page 28 of 33 Consolidation & Ors: AIR 1978 SC 1341). Para 6 of the Sher Singh case (Supra) reads as follows:-
―6. As the above section is pari materia with S.115 of Civil P.C., it will be profitable to ascertain the scope of the revisional jurisdiction of the High Court. It is now well settled that the revisional jurisdiction of the High Court is confined to cases of illegal or irregular exercise or non-exercise or illegal assumption of the jurisdiction by the subordinate courts. If a subordinate court is found to possess the jurisdiction to decide a matter, it cannot be said to exercise it illegally or with material irregularity even if it decides the matter wrongly. In other words, it is not open to the High Court while exercising its jurisdiction under section 115 of the Code of Civil Procedure to correct errors of fact howsoever gross or even errors of law unless the errors have relation to the jurisdiction of the- court to try the dispute itself.‖
16. While exercising the revisional jurisdiction, the High Court should not, on reappraisal of the evidence, interfere with the order of the court below on the mere fact that different view is possible. A distinction between the appellate and the revisional jurisdictions of the Courts is a real one. The right to appeal carries with it the right of rehearing both on questions of law and fact, unless the statute conferring the right to appeal itself limits the rehearing in some way, while the power to hear a revision is generally given to a particular case is decided according to law. Under Section 115 of the CPC, yet its revisional jurisdiction could only be exercised for a limited purpose with a view to satisfying itself that the decision under challenge before it is according to law. The High Court cannot substitute its own findings on a question of fact for the findings recorded by the Courts below on reappraisal of evidence. (Ref:- Patel Valmik Himatlal & Ors Vs. Patel Mohanlal Muljibhai (dead) through LRs: AIR 1998 SC 3325). Paras 5, 6, 7 & 8 of the Patel Valmik Himatlal case (Supra) reads as follows:-
―5. The ambit and scope of the said section came up for consideration before this Court in Hleper Girdharbhai v. Saiyed Mohmad Mirasahed Kadri, (1987) 3 SCC 538: (AIR 1987 SC 1782) and after referring to a catena of authorities, Sabyasachi Mukharji, J, drew a distinction between the appellate and the CR(P) No. (SH) 3 OF 2013 Page 29 of 33 revisional jurisdictions of the Courts and opined that the distinction was a real one. It was held that the right to appeal carries with it the right of rehearing both on questions of law and fact, unless the statute conferring the right to appeal itself limits the rehearing in some way, while the power to hear a revision is generally given to a particular case is decided according to law. The Bench opined that although the High Court had wider powers than that which could be exercised under Section 115 of the Code of Civil Procedure, yet its revisional jurisdiction could only be exercised for a limited purpose with a view to satisfying itself that the decision under challenge before it is according to law. The High Court cannot substitute its own findings on a question of fact for the findings recorded by the Courts below on reappraisal of evidence. Did the High Court exceed its jurisdiction?
6. The powers under Section 29(2) are revisional powers with which the High Court is clothed. It empowers the High Court to correct errors which may make the decision contrary to law and which errors go to the root of the decision but it does not vest the High Court with the power to rehear the matter and re-appreciated the evidence. The mere fact that a different view is possible on reappreciation of evidence cannot be a ground for exercise of the revisional jurisdiction.
7. In the instant case we find that the High Court fell into an error in reappraising the entire evidence and recording a finding on the basis of that reappreciation without in any way pointing out any error of law or material irregularity as may have been committed by the trial court or the first appellate court. In our opinion even the appreciation of evidence by the High Court was not correct. Certain facts were assumed by the High Court which were not on record and generalization was made without any basis. In this connection a reference to paragraph 12 of the order of the High Court would be relevant. It reads:-
―12. This would clearly meant that starting of the said Branch Office was clearly recorded in form of a Commission Agency Agreement in Exh.78, another copy of which is at Ext.110, and that was done openly and publicly inviting particularly the business community to attend the function. If the idea was to sublet the premises, a tenant would hardly be expected to advertise the fact in this manner.‖
8. The question whether or not the premises had been sublet could not be decided on the basis whether a tenant generally is ―expected to advertise the fact in this manner.‖ The findings recorded by both the trial court and the first appellate court based on critical appreciation of the terms of the agreement Exh.78 and the evidence led by the parties on the record suffered from no error or material irregularity. Both the Courts had rightly come to the conclusion that the tenant had in fact sublet the suit premises and parted with the possession of the premises without consent of the landlord. There was no error committed by the Courts below which required any correction at the hands of the High Court in exercise CR(P) No. (SH) 3 OF 2013 Page 30 of 33 of its revisional jurisdiction. The judgment of the High Court, under the circumstances, cannot be sustained.‖
17. The Apex Court in Sri.Kempaiah Vs. Smt.Chikkaboramma & Ors: AIR 1998 SC 3335, held that "High Court in its order virtually re-appreciated the evidence placed before the authorities as if it was a first appeal not noticing that it was only a proceeding arising under Section 115 of the CPC. Therefore it was not open to the High Court at all to re-appreciate the matter unless it could find that the District Judge had committed any error of jurisdiction or acted with material irregularity affecting his jurisdiction." Para 5 of the Sri.Kempaiah case (Supra) reads as follows:-
―5. So far as the direction to re grant to respondents 2 to 4 the lands in question is concerned, we are constrained to state that the High Court in its order virtually re-appreciated the evidence placed before the authorities as if it was a first appeal not noticing that it was only a proceeding arising under section 115 of the Code of Civil Procedure. The learned District Judge had referred to every piece of material placed before the Court in the shape of oral or documentary evidence and came to the conclusion as we have noticed earlier in the course of this order. Therefore, it was not open to the High Court at all to re-appreciate the matter unless it could find that the District Judge had committed any error of jurisdiction or acted with material irregularity affecting his jurisdiction. No such contention has been recorded. On this ground alone the order made by the High Court on this aspect of the matter will have to be set aside.‖
18. The High Court cannot enter into appreciation or re-appreciation of evidence merely because it is inclined to take a different view of the facts as if it were a court of facts. The High Court while exercising the jurisdiction can reappraise the evidence only for a limited purpose for ascertaining as to whether the conclusion arrived at by the fact-finding court is wholly unreasonable. (Ref:-
Vaneet Jain Vs. Jagjit Singh: (2000) 5 SCC 1). Para 4 of the Vaneet Jain case (Supra) reads as follows:-
―4. Sub-section (6) of Section 15 of the Act empowers the High Court to exercise its revisional jurisdiction for the purpose of satisfying itself if an order passed by the Rent Collector or the CR(P) No. (SH) 3 OF 2013 Page 31 of 33 appellate authority is in accordance with law. The question that arises for consideration is whether the High Court in its revisional jurisdiction can reassess or re-evaluate the evidence only to come to a different finding than what has been recorded by the Court below. This Court in the case of Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta: (1999) 6 SCC 222, held that the High Court cannot enter into appreciation or re-appreciation of evidence merely because it is inclined to take a different view of the facts as if it were a court of facts. However, the High Court is obliged to test the order of the Rent Collector on the touchstone of whether such an order is in accordance with law. For that limited purpose the High Court would be justified in reappraising the evidence. In Sarla Ahuja vs. United India Insurance Co. Ltd.,: (1998) 8 SCC 119, it was held that the High Court while exercising the jurisdiction can reappraise the evidence only for a limited purpose for ascertaining as to whether the conclusion arrived at by the fact-finding court is wholly reasonable.‖
19. Order passed by subordinate court can be interfered in revision whenever a subordinate court goes wrong in law on the vital question either by breach of some provisions of law or by committing material defects in procedure which has resulted in manifest injustice, it goes outside the jurisdiction conferred on it, and its decision can be interfered with under Section 115 for lack of jurisdiction, irrespective of the question as to whether such an order was passed by the subordinate court in exercise of discretion under Section 151. (Ref:- Oil & Natural Gas Commission, Nazira Vs. Ganesh Prasad Singh & Ors: AIR 1983 Gauhati 8 (D.B.)). Para 14 of the Oil & Natural Gas Commission, Nazira case (Supra) reads as follows:-
―14. From the conspectus of the decisions of the Supreme Court and also of the House of Lords in the cases referred to above, in our opinion, whenever a subordinate court goes wrong in law on the vital question either by breach of some provisions of law or by committing material defects in procedure which has resulted in manifest injustice, it goes outside the jurisdiction conferred on it, and its decision can be interfered with U/s 115 of the CPC for lack of jurisdiction, irrespective of the question as to whether such an order was passed by the subordinate court in exercise of discretion u/s 115 of the Code. It depends on the facts and circumstances of each case and no general principle can be laid down.‖ CR(P) No. (SH) 3 OF 2013 Page 32 of 33
20. For the foregoing reasons, this Court is not re-appreciating the evidence while exercising the revisional powers under Section 115 of the CPC for coming to a findings of fact different to the one made by the First Appellate Court after proper appreciation of evidence in the impugned judgment and order dated 20.12.2011. Over and above, the findings of facts by the First Appellate Court in the judgment and order (impugned judgment and order dated 20.12.2012) by proper appreciation of the evidence cannot be said to be the one based on no evidence. The duty of the First Appellate Court had been discussed by the Apex Court in H. Siddiqui (Dead) By LRS v. A. Ramalingam: (2011) 4 SCC 240, and held that it is mandatory for the appellate court to independently assess the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of evidence on those points. Being the final Court of fact, the First Appellate Court must not record mere general expression of concurrence with the trial court judgment rather it must give reasons for its decision on each point independently to that of the trial court.
21. In view of above, this Court is of the considered view that this revision petition has no merit and is accordingly dismissed.
22. Return the LCR forthwith.
CIHEF JUSTICE (ACTING) Lam CR(P) No. (SH) 3 OF 2013 Page 33 of 33