Manipur High Court
C. Smt. Chinganbam Ningol ... vs Smt. Yumnam Ongbi Maimu Devi on 26 February, 2021
Page |1
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
RSA NO.7 OF 2017
Smt. Chingangbam Ongbi Ibetombi Devi, W/O (L) Ch.
Babu Singh of Khurai Thangjam Leikai, now died by her
LRs :-
A. Shri Chingangbam Doren @ Dorendro
Singh, aged about 63 years, S/O Late Babu
Singh of Khurai Thangjam Leikai, P.O. &
P.S. Porompat, Imphal East District,
Manipur.
B. Shri Chingangbam Ingobi Singh, aged
about 60 years, S/O Late Babu Singh of
Khurai Thangjam Leikai, P.O. & P.S.
Porompat, Imphal East District, Manipur.
C. Smt. Chinganbam Ningol Namoijam Ongbi
Sorojini Devi, aged about 66 years, W/O
Late Yaima Singh of Khurai Soibam Leikai,
P.O. & P.S. Porompat, Imphal East District,
Manipur.
-- -- -- APPELLANTS
- VERSUS -
1. Smt. Yumnam Ongbi Maimu Devi, aged
about 77 years, W/O Y. Ningthoubi of
Thoubal at presnt Kongba Uchekon
RSA No. 7 of 2017 and RSA No. 8 of 2017
Page |2
Khunou, P.O. Porompat, P.S. Irilbung,
Imphal East District, Manipur.
2. Smt. Laishram Randhoni Devi, aged about
74 years, W/O Ibotombi Singh of Khurai
Thangjam Leikai, P.O. & P.S. Porompat,
Imphal East District, Manipur.
3. Smt.Meisnam Ongbi Kunjarashi Devi,
aged about 81 years, W/O L. Achou Singh
of Sagolband Meino Leirak, P.O. & P.S.
Imphal, Imphal West District, Manipur now
died by her LRs :-
A. Meisnam Shantikumar Singh, aged
about 58 years, S/O M. Achou
Singh.
B. Meisnam Sarat Singh, aged about
56 years, S/O M. Achou Singh.
C. Meisnam (N) Khoirom (O) Meme @
Memi Devi, aged about 60 years,
W/O Kh. Chaoba Singh of Uripok
Khumanthem Leikai.
D. Meisnam (N) Pukhrambam (O)
Jugeshwori Devi, aged about 65
years, W/O P. Ibobi Singh of
Sagolband Meino Leirak.
RSA No. 7 of 2017 and RSA No. 8 of 2017
Page |3
- - - - LRs at Sl. No. a and b are
residents of Sagolband Meino
Leirak, P.O. & P.S. Imphal, Imphal
West District, Manipur.
4. Smt. Haobijam Ongbi Pishak Devi, aged
about 77 years, W/O Yaima Singh of
Khurai Konsam Leikai, P.O. & P.S.
Porompat, Imphal East District, Manipur.
5. Shri Yumnam Budhachandra Singh, aged
about 74 years, S/O (Late) Tomba Singh of
Khurai Sajor Puthem Leikai, Lamlong,
P.O. & P.S. Porompat, Imphal East
District, Manipur.
-- -- -- RESPONDENTS
6. Smt. Thokchom (O) Rajkumari Romita
Devi, aged about 53 years, W/O (L)
Thokchom Saratkumar Singh of
Brahmapur Nahabam, P.O. Imphal, P.S.
Porompat, Imphal East District, Manipur.
-- -- -- PROFORMA RESPONDENT.
RSA NO 8 0F 2017
Smt. Thokchom Ongbi Rajkumari Romita Devi,
aged about 52 years, W/O Late Th. Saratkumar
RSA No. 7 of 2017 and RSA No. 8 of 2017
Page |4
Singh of Brahmapur Nahabam, P.O. Imphal, P.S.
Porompat, Imphal East District, Manipur.
-- -- -- Petitioner/Respondent No.1
- VERSUS -
1. Smt. Chingangbam Ongbi Ibetombi Devi,
W/O (L) Ch. Babu Singh of Khurai
Thangjam Leikai, now died by her LRs :-
A. Shri Chingangbam Doren @
Dorendro Singh, aged about 63
years, S/O Late Babu Singh of
Khurai Thangjam Leikai, P.O. & P.S.
Porompat, Imphal East District,
Manipur.
B. Shri Chingangbam Ingobi Singh,
aged about 60 years, S/O Late Babu
Singh of Khurai Thangjam Leikai,
P.O. & P.S. Porompat, Imphal East
District, Manipur.
C. Smt. Chinganbam Ningol Namoijam
Ongbi Sorojini Devi, aged about 66
years, W/O Late Yaima Singh of
Khurai Soibam Leikai, P.O. & P.S.
Porompat, Imphal East District,
Manipur.
-- -- -- Respondents/Appellants
RSA No. 7 of 2017 and RSA No. 8 of 2017
Page |5
2. Smt. Thangjam Ongbi Leirensana Devi,
W/O late Gulamjat Singh now died by her
LRs. :
I. Yumnam Ongbi Maimu Devi, aged
about 77 years, W/O Y. Ningthoubi of
Thoubal at presnt Kongba Uchekon
Khunou, P.O. Porompat, P.S. Irilbung,
Imphal East District, Manipur.
II. Laishram Ongbi Randhoni Devi,
aged about 74 years, W/O Ibotombi
Singh of Khurai Thangjam Leikai, P.O.
& P.S. Porompat, Imphal East District,
Manipur.
III. Smt. Meisnam Ongbi Kunjarashi
Devi, W/O L. Achou Singh of Sagolband
Meino Leirak, Imphal now died by her
LRs :
A. Meisnam Shantikumar Singh,
aged about 58 years, S/O M. Achou
Singh of Sagolband Meino Leirak, P.O.
& P.S. Imphal, Imphal West District,
Manipur.
B. Meisnam Sarat Singh, aged about
56 years, S/O M. Achou Singh of
Sagolband Meino Leirak, P.O. & P.S.
Imphal, Imphal West District, Manipur.
C. Meisnam Nigol Khoirom Ongbi
Meme @ Memi Devi, aged about 60
RSA No. 7 of 2017 and RSA No. 8 of 2017
Page |6
years, W/O Kh. Chaoba Singh of Uripok
Khumanthem Leikai, P.O. 7 P.S.
Imphal, Imphal West District, Manipur.
D. Meisnam Ningol Pukhrambam
Ongbi Jugeshwori Devi, aged about 65
years, W/O P. Ibobi Singh of Sagolband
Meino Leirak, P.O. & P.S. Imphal,
Imphal West District, Manipur.
IV. Haobijam Ongbi Pishak Devi,
aged about 76 years, W/O Yaima Singh
of Khurai Konsam Leikai, P.O. & P.S.
Porompat, Imphal East District,
Manipur.
V. Shri Yumnam Budhachandra
Singh, aged about 73 years, S/O (Late)
Tomba Singh of Khurai Sajor Puthem
Leikai, Lamlong, P.O. & P.S. Porompat,
Imphal East District, Manipur.
-- -- -- Proforma Respondents
BEFORE
HON'BLE MR. JUSTICE M.V. MURALIDARAN
For the Appellants :: Mr. T. Rajendra, Advocate.
For the Respondents :: Mr. I. Lalitkumar, Sr. Advocate,
Mr. I. Denning, Advocate,
Mr. I. Vikramjit, Advocate.
Date of Hearing and
Reserving Judgment
& Order :: 01.02.2021
RSA No. 7 of 2017 and RSA No. 8 of 2017
Page |7
Date of Judgment &Order :: 26.02.2021
JUDGMENT AND ORDER
(CAV)
1. These second appeals are preferred against the
common judgment dated 21.1.2017 passed In RFA Nos.15 and 25
of 2016 on the file of the Learned District Judge, Imphal West,
whereby the learned District Judge remanded the matter to the trial
Court for considering the matter afresh as per the direction of the
High Court by giving ample opportunity to the legal heirs of the
second plaintiff and the second defendant and directed the Civil
Judge (Senior Division) No.II, Imphal East to dispose of the suit
being O.S.No.33 of 1967 within a period of six months.
2. The Original Suit No.23 of 1967 was instituted by
Thangjam Ningol Chingangbam Ongbi Ibetombi Devi, daughter of
one Thangjam Gulamjat Singh, and her, mother Leirensana Devi
against Thangjam Irabot Singh before the Sub-Judge-I, Manipur for
declaration.
3. The case of the plaintiffs is that late Gulamjat Singh
husband of the second plaintiff and the father of the first plaintiff and
the first defendant had four patta lands and during his lifetime,
RSA No. 7 of 2017 and RSA No. 8 of 2017
Page |8
Gulamjat Singh had distributed his properties amongst his wives
and children. According to that distribution, the land under patta
Nos.25/159 and 25/152 became the sahe of his first wife, the
second plaintiff and he - issues and the land under patta Nos.25/42
and 1/39 IW became the share of his second wife i.e., the mother
of the first defendant and her issues.
4. The plaintiffs have been occupying their share since
the said distribution openly and exclusively as of right. Likewise, the
other two patta lands were possessed and enjoyed by the first
defendant and his mother, Therefore, the first defendant has no
right and title to the patta lands viz., 25/152 IE and 25/159 IE.
5. The further case of the plaintiffs is that in Title Suit
No.29 of 1965 filed by the first defendant, the Learned Sub-Judge
I, Manipur passed an ex parte decree in favour of the first defendant
on 30.7.1966 declaring that the first defendant has right and title to
the suit land and eviction of the plaintiffs thereof. The said decree
was passed without jurisdiction and without proper notice to the
plaintiffs. According to the plaintiffs, even if the above distribution is
not believed by the Court, the second plaintiff is entitled to half of
the properties left by Gulamjat Singh under the Women's Right to
RSA No. 7 of 2017 and RSA No. 8 of 2017
Page |9
Properties Act, 1937, which was extended to Manipur in the year
1950.
6. The plaintiffs state that through wrong instruction, they
have filed Civil Review Case No.2 of 1966 before the Learned Sub-
Judge I, Manipur and the same was dismissed. Thus, the reliefs
sought by the plaintiffs in O.S.No.33 of 1967 are as under:
(i) It be declared that the judgment and decree
passed by the learned First Sub Judge in his
T.S.No.2 of 66 are void and not actionable as
passed without jurisdiction and as also tainted
with fraud and collusion and that the said
judgment and decree be set aside;
(ii) It be also declared that the order passed by the
and in the condonation petition have got no legal
effect;
(iii) The suit land described below be declared as
property of the above plaintiffs on the basis of
their distribution mentioned above or in the
alternative it be declared that the plaintiffs have
got their right and title over the suit land of
adverse possession;
RSA No. 7 of 2017 and RSA No. 8 of 2017
P a g e | 10
(iv) The defendant be restrained by a permanent
injunction from proceeding with the said ex-suit
No.4 of 67 passed by the Second Sub-Judge,
Manipur;
(v) A decree for Rs.2253/- be allowed to the plaintiffs
for the damage caused to the plaintiffs on
13.11.1969.
(vi) Cost of the suit.
7. The first defendant filed written statement stating that
Gulamjat Singh died in the year 1954 and he Is the only sole heir of
Gulamjat Singh and after the birth of the first plaintiff, Gulamjat
Singh divorced the second plaintiff and married his mother Mani
Devi and thereafter the second plaintiff resided at her parental
house at Nongmeibung. After the death of Gulamjat Singh, the first
defendant allowed the plaintiffs to reside in the suit to enjoy the
produce thereof out of love and affection. But in the year 1962, the
second plaintiff set up hostile title against the first defendant by fi ng
a mutation application in respect of the suit land and in that
proceeding, the settlement authorities granted mutation in her
favour despite first defendant's objection. Therefore, the first
defendant filed Title Suit No.2 of 1966 and the said suit decreed in
favour of the first defendant, against which the plaintiffs have filed
RSA No. 7 of 2017 and RSA No. 8 of 2017
P a g e | 11
an application for reviewing the judgment, but the First Sub-Judge,
rejected the same. Hence, the present suit is barred by res judicata
and the plaintiffs have no locus to file the present suit.
8. By the judgment dated 30.11.1972, the suit was
dismissed, against which an appeal was preferred by the first
plaintiff before Gauhati High Court in F.A.No.6 of 1976. By the
judgment dated 29.4.1993, the Gauhati High Court set aside the
judgment dated 30.11.1972 and remanded the matter to the trial
Court.
9. After remand, one Thokchom Saratkumar Singh was
impleaded as the second defendant in the suit and pending suit, the
second defendant died and his legal representatives were brought
on record.
10. Upon considering the pleadings, the following issues
were framed in the suit:-
(1) Whether the land under patta no.25/159 IE,
25/152 IE and 1/39 IW were left by late Gulamjat
Singh?
(2) Did Gulamjat Singh died about 1948 or about
1954?
RSA No. 7 of 2017 and RSA No. 8 of 2017
P a g e | 12
(3) Was there any distribution of the properties left
by late Gulamjat Singh during his life time some
time a few months before his death, patta
Nos.25/159 IE (Ingkhol) and 25/152 IE (Lou)
being allotted to the plaintiff No.1 (1st wife) and
her issues and patta Nos.25/42 IW and 1/39 IW
to the second wife and her issues?
(4) Did the defendant (son of 2nd wife) sold the patta
No.25/42 IE to Haobam Paka Singh and patta
No.1/39 IW to Salam Galumjat Singh after
allotment and after the death of Gulamjat
Singh?
(5) Whether the plaintiff No.2 is entitled to any
share of the properties left by late Gulamjat
Singh under the Hindu Womens' Right to
Property Act, 1937?
(6) Whether the plaintiffs have been occupying the
land under patta No.25/159 IW and 25/152 IW
(the suit land) as their own since the death of
late Gulamjat Singh till today openly, exclusively
and as of right and without any interruption?
RSA No. 7 of 2017 and RSA No. 8 of 2017
P a g e | 13
(7) Whether the decree holder Thangjam Irabot
Singh of Khurai Thangjam Leikai was a non-
existing person?
(8) Whether the decree in the Title Suit No.29 of
1966 in favour of the defendant as against the
plaintiff was collusively obtained and as such it
is vitiated by fraud? If so, what is its effect?
8(a) Whether the house alleged to have been
demolished during the pendency of the suit
belongs to the defendant or the plaintiffs?
8(b) Are the plaintiffs entitled to claim Rs.2253/-
as damages from the defendant?
(9) Is the suit barred by the principles of Res-
judicata?
(10) Is the suit barred by waiver of estoppels?
(11) Have the plaintiffs locus standi to bring the suit?
(12) Are the plaintiffs entitled to the reliefs as
claimed?
11. On the side of the plaintiffs, four witnesses were
examined and exhibited three documents. On the side of the
defendants, the first defendant examined himself as D.W.1 and the
RSA No. 7 of 2017 and RSA No. 8 of 2017
P a g e | 14
bailiff of the Court was examined as D.W.2. Exs.B1 to B3 were
marked.
12. Upon consideration of the oral and documentary
evidence, the trial Court answered some of the issues in favour of
the plaintiffs and finally, decreed the suit that the plaintiffs are the
owners of the properties covered by patta No.25/159 IE and another
patta No.25/152 IET on the basis of the distribution against the two
wives and their daughter and son of late Thangjam Gulamjat Singh.
It was also decreed that the judgment and decree in T.S.Case No.2
of 1966, dated 30.7.1966 has no legal force as the Sub-Judge I,
Manipur had not declared the first defendant as owner of the suit
land. The trial Court also held that assuming that Thangjam Irabot
Singh acquired his right and title over the suit land on the basis of
the decree in T.S. Case No.2 of 1966, his right and title has already
been extinguished by efflux of time and whatever the transfers
made pendent lite on the basis of the decree dated 30.7.1966 made
by Thangjam Irabot Singh shall have no legal effect and hence void
ab-initio. It is also held that the decision arrived at by the Court shall
also binding on the second defendant and his legal heirs.
13. Aggrieved by the judgment dated 18.3.2016, one of
the heirs of the second defendant filed RFA No.15 of 2016 before
RSA No. 7 of 2017 and RSA No. 8 of 2017
P a g e | 15
the Learned District Judge, Imphal East and the heirs of the second
plaintiff filed cross objection being RFA No.25 of 2016 on the file of
the Learned District Judge, Imphal West. RFA No.15 of 2016 is an
appeal being RFA No.3 of 2016 transferred from the file of District
Judge, Imphal East. By the judgment dated 21.1.2017, the District
Judge, Imphal West, allowed the appeals and remanded the matter
to the trial Court for considering the matter afresh by giving
opportunity to the legal heirs of the second plaintiff and the second
defendant. Aggrieved by the same, the legal heirs of the first plaintiff
have filed these Regular Second Appeals.
14. The Regular Second Appeal No.7 of 2017 was
admitted on the following substantial questions of law:
(1) Does the Ld. District Judge, Imphal West have
jurisdiction to entertain an appeal which lies to the
Ld. District Judge, Imphal East by taking it up
together with another appeal which has already
been transferred to the said Court by the Hon'ble
High Court?
(2) Whether the Ld. District Judge, Imphal East erred
in law in entertaining the case of the principal
RSA No. 7 of 2017 and RSA No. 8 of 2017
P a g e | 16
respondent nos.1 to 5 which were never presented
before the Ld. trial Court?
(3) Whether an appeal of a plaintiff against a decree
granting his prayers made in the plaint is
maintainable?
15. The Regular Second Appeal No.8 of 2017 was
admitted on the following substantial questions of law:-
(1) Whether an appeal of a sole legal heir of the defendant
no.2 without his other legal heirs having similar interest
with her and also without the original defendant No.1 is
maintainable or not?
(2) Whether there is an error in law when the trial Court
hears the suit ex-parte after the defendant No.2 without
complying the directions of the Court absented in the
proceedings of the case without showing any cause?
(3) Whether the First Appellate Court erred in law in
entertaining the appeal of a legal heir of the defendant
No.2 and allowing her to raise issues when the
defendant No.2 himself does not present his case
before the trial Court?
RSA No. 7 of 2017 and RSA No. 8 of 2017
P a g e | 17
16. RSA No.7 of 2017 is filed against the judgment in RFA
No.25 of 2016. Similarly, RSA No.8 of 2017 is filed against the
judgment in RFA No.15 of 2016.
17. The arguments of the learned gamer counsel for the
appellants are summarized as under:
R.S.A.No.8 of 2017:
The Regular First Appeal No.15 of 2016 was filed by
defendant No.2 (i) without impleading defendant Nos. 2
(ii), 2 (iii) and 2 (iv). In fact the appellant of RSA No. 15 of
2016 i.e., defendant No2 (i) is the wife of the impleaded
defendant No.2 and the defendant Nos. 2 (ii), 2 (iii) and 2
(iv) are the sons and daughter of the impleaded defendant
No.2. Moreover, defendant No.1 (Irabot Singh) was the
sole defendant of the original suit and who contested the
claims of the plaintiffs. Defendant No.2 was in fact
impleaded only on 16.02.2010 in the original suit as a
defendant. The original defendant was also not made a
party in the said RFA No. 15 of 2016. Therefore, the RFA
No.15 of 2016 is not entertainable.
Respondent No.1 of RSA No.8 of 2017 (Smt.Thokchom
Ongbi Rajkumari Romita Devi) did not comply with the
RSA No. 7 of 2017 and RSA No. 8 of 2017
P a g e | 18
direction of the trial Court made in the order dated 26-02-
2016 passed in Judl. Misc. Case No. 50 of 2016 for
depositing the cost of Rs. 5,000/- (Rupees five thousand)
to the Member Secretary, Manipur State Legal Service
Authority, Imphal at the Manipur High Court complex at
Imphal within a week without fail and to file the receipt
before the Court and absented in the further proceedings
of the suit. The said Judi. Misc. Case No. 50 of 2016 was
filed by the present Respondent No.1 of RSA No. 8 of
2017 herself claiming that the signatures of appellant
No.1(A) himself appearing in the miscellaneous
applications are forged by even impleading the counsel of
the appellants of the present RSA No. 8 of 2017 as a
party. The first appellate Court however failed to see the
same and has come to an erroneous conclusion that it
would be more proper to issue summons to the legal
representatives of defendant No.2. In fact, there is no
error or lapses in the manner the trial Court decided the
original suit by passing the judgment and decree dated
18.03.2016.
An appeal is a continuation of the suit. The grounds and
reasons raised in the RFA No. 15 of 2016 before the
RSA No. 7 of 2017 and RSA No. 8 of 2017
P a g e | 19
Learned District Judge, Imphal West by the present
respondent No.1 of RSA No. 8 of 2017 were never
produced before the trial Court. The second defendant
after his impleadment in the Original Suit did not file his
pleadings nor produce any evidence. Therefore, apart
from the fact that his alleged sale deed dated 01.04.1991
does not have the force of law being hit by Section 52 of
the Transfer of Property Act, the second defendant has
no case before the trial Court. Therefore the RFA No. 15
of 2016 filed by one of his legal heirs is not permissible.
Moreover, allowing defendant No.2 (i) to raise issues
before the District Judge, Imphal West when the second
defendant himself does not have any case before the trial
Court is also not permissible. Hence, the first appellate
Court erred in law in entertaining the said RFA No. 15 of
2016 and allowing defendant
No.2 (i) to raise such issues not produced before the trial
Court in passing the impugned judgment and decree
dated 21.01.2017.
As far as the question of law formulated by the Hon'ble
High Court regarding the maintainability of the appeal is
concerned, it is submitted that the first appellate Court in
RSA No. 7 of 2017 and RSA No. 8 of 2017
P a g e | 20
the impugned judgment concluded that the trial Court has
committed gross error for not issuing summons to the
legal heirs of defendant No. 2 and that the legal heirs of
the second plaintiff Lairensana Devi who are the cross
objectors were also not represented properly as no
summons were issued to them after the suit was
remanded from the Hon'ble High Court since they were
wrongly transposed as plaintiff. The first appellate Court
in the said Judgment and Decree dated 21.01.2017
further concluded that the suit is required to be heard
afresh after giving ample opportunities to the legal heirs
of the second plaintiff and defendant No 2. Therefore
such a finding conclusively determines the rights of the
parties as regards the District Judge, Imphal West in the
said RFA No. 15 of 2016 and 25 of 2016. The respondent
as appellant in the RFA No. 15 of 2016 has specifically
urged before the learned District Judge, Imphal West that
the trial Court ignoring the subsequent development for
the suit without application of judicial mind standing in the
way of revival and proceeding of the suit restored the said
suit on its own file and proceeded hearing ex parte in clear
defiance of the directions and order of the Gauhati High
RSA No. 7 of 2017 and RSA No. 8 of 2017
P a g e | 21
Court, Imphal Bench thereby decreed the suit in favour of
the plaintiffs.
The appellant of RSA No. 15 of 2016 in her grounds of
appeal before the first appellate Court specifically alleged
that the trial Court has fallen into a great injustice in
passing the said judgment and decree and that the
judgment and decree was obtained by fraud, collusively,
void-ab-initio and not actionable being non-est and also
further alleged that there has been apparent injustice
done to the defendants for deprivation of right to hearing
of the suit. The first appellate Court conclusively
determined such claims of the appellant in RFA No. 15 of
2016 in the impugned judgment and decree. The learned
District Judge, Imphal West has also drawn up separate
decrees in RFA No. 15 of 2016. In both the said decrees,
the first appellate Court concluded that the present
grounds of appeal is allowed. In the definition of "decree"
under Section 2 (2) of the Code of Civil Procedure, it is
mentioned that it is the formal expression of an
adjudication which, so far as regards the Court
expressing it, conclusively determines the rights of the
parties with regard to all or any of the matters in
RSA No. 7 of 2017 and RSA No. 8 of 2017
P a g e | 22
controversy in the suit and decree does not include any
adjudication from which an appeal lies as an appeal from
an order. Order 41 of the Code of Civil Procedure speaks
about Appeals from Original Decrees. Order 42 of Code
of Civil Procedure speaks about Appeals from Appellate
Decrees and Order 43 of Code of Civil Procedure speaks
about appeals from Orders. Order 42 Rule 1 says that the
rules of Order 41 shall apply, so far as may be, to appeals
from appellate decrees. Order 43 Rule 1 speaks about
orders from which an appeal lies.
The judgment and decree dated 18.03.2016 of the trial
Court is not decided on a preliminary point and the
judgment and decree of the learned District Judge is for
considering the matter afresh as per the directions of the
Hon'ble High Court by giving ample opportunities to the
legal heirs of the second plaintiff and defendant No.2 with
the further direction to the trial Court to give an opportunity
to the legal heirs of plaintiff No.2 for deciding themselves
to contest the suit as plaintiffs or defendants and on that
basis reframed the cause title of the suit. The Hon'ble
High Court in the judgment and order dated 29.04.1993
passed in First Appeal No. 6 of 1976 directed the
RSA No. 7 of 2017 and RSA No. 8 of 2017
P a g e | 23
Subordinate Judge to re-hear the parties on all the issues
on the basis of the evidence which were adduced before
the court and after hearing to give fresh findings on all of
the rest of the issues. In such circumstances, the present
RSA Nos. 7 of 2017 and 8 of 2017 are very much
maintainable and the High Court after hearing the parties
also admitted the same on 21.08.2019 by formulating the
Substantial Questions of Law. The order dated
21.08.2019 of this Court for admitting the Second Appeals
is not challenged by the respondents before any higher
court and hence it shall be in the best interest of justice to
decide the Second Appeals on their own merit.
RSA No.7 of 2017 :
The learned counsel then submitted that it is the learned
District Judge, Imphal East who has jurisdiction over the
matter. The Civil Appeal No.3 of 2016 was therefore
presented by the first respondent of RSA No. 8 of 2017
namely Smt. Thokchom Ongbi Rajkumari Romita Devi
before the District Judge, Imphal East. The Hon'ble High
Court's order for transfer dated 01.07.2016 was only for
that Civil Appeal No. 3 of 2016 of the District Judge,
Imphal East. The learned District Judge, Imphal West has
RSA No. 7 of 2017 and RSA No. 8 of 2017
P a g e | 24
no jurisdiction to entertain the RFA No. 25 of 2016 only
on the ground that the transferred Civil Appeal No. 3 of
2016 is also pending before him as RFA No. 15 of 2016.
As the present respondents 1 to 5 are impleaded as the
legal heirs of the deceased plaintiff No.2, they are on the
sues of plaintiff No.2. Therefore, such pleadings which
are altogether contrary to the original pleadings of plaintiff
No.2 which could not be entertained. An appeal being a
continuation of the suit ought to be based on the records
of the trial court. The First Appellate Court therefore
committed an error in law while entertaining such
altogether different case of respondent Nos. 1 to 5 of RSA
No. 7 of 2017.
As far as the two plaintiffs of the original suit are
concerned, the judgment and decree dated 18.03.2016 of
the trial court granted their prayers made in the plaint.
18. In support of his submissions, the learned counsel
relied upon the following decisions:
(i) Rani Kusum v. Kanchan Devi and others, (2005)
6 SCC 705.
RSA No. 7 of 2017 and RSA No. 8 of 2017
P a g e | 25
(ii) Bibi Zubaida Khatoon v. Nabi Hassan Saheb and
another, AIR 2004 SC 173. (iii) Shreenath and
another v. Rajesh and others, AIR 1998 SC 1827.
(iv) Jutika Paul and others v. Bhubaneswari Sheel
and others, 2007 (4) GLT 26. (v) Amit Kumar
Shaw and another v. Farida Khatoon and
another, (2005) 11 SCC 403.
(vi) State of Punjab and others v. Bakshish Singh,
AIR 1999 SC 2626.
(vii) Dharampal (dead) through Lrs. v. Punjab Wakf
Board and others, (2018) 11 SCC 449.
(viii) The Executive Director, Hindustan Paper
Corporation Limited and others v. Ramvash Bind
and others, 1997 (1) GLT 512.
19. Per contra, the learned senior counsel for the first
respondent in RSA No.8 of 2017 submitted that after decreeing the
suit in favour of the first defendant under Title Suit No.2 of 1966,
has possession of the suit land was also handed over in Executive
Case No.4 of 1967 and then, the first defendant transferred the suit
to third party, who in turn transferred the same to another person
and so on for fourth time and the husband of the first respondent
namely Saratkumar had purchased the suit land under sale deed
RSA No. 7 of 2017 and RSA No. 8 of 2017
P a g e | 26
dated 1.4.1991 and since then he was in possession of the land. He
would submit that the husband of the first respondent filed suit
against the first plaintiff and her two sons before the Sub-Court,
Manipur in O.S.No.40 of 1991 and the said suit was decreed in his
favour thereby restraining the defendants therein from interfering
with the peaceful possession and enjoyment of the suit land.
20. The learned counsel further submitted that the trial
Court gave the findings without jurisdiction and has failed to frame
two separate issues based on the subsequent development for the
suit and that the judgment and decree of the trial Court is against
the facts and evidence on record. He would submit that in fact the
appellants have obtained the decree and judgment by fraud.
According to the learned counsel, there has been injustice done to
the defendant in the suit for deprivation of right to hearing the suit
and that the right to sue does not survive to the surviving plaintiff or
plaintiffs alone and as such the first appellate Court rightly set aside
the judgment and decree of the trial Court and remanded the matter
to the trial Court. In support, the learned senior counsel relied on
the following decisions:
RSA No. 7 of 2017 and RSA No. 8 of 2017
P a g e | 27
(i) Shiv Shakti Coop. Housing Society, Nagpur v.
Swaraj Developers and others, (2003) 6 SCC
(ii) Santhini v. Vijaya Venketesh, (2018) 1 SCC 62.
(iii) Afcons Infrastructure Limited and another v.
Cherian Varkey Construction Company Private
Limited and others, (2010) 8 SCC 24.
(iv) Jegannathan v. Raju Sigamani and another,
(2012) 5 SCC 540.
(v) Rajni Rani and another v. Khairati Lal and
others, (2015) 2 SCC 682.
(vi) Shailesh Dhairyawan v. Mohan Balkrishna Lulla,
(2016) 3 SCC 619.
(vii) Laliteshwar Prasad Singh and others v.
S.P.Srivastava (dead) through legal
representatives, (2017) 2 SCC 415.
(viii) Sangkungi v. Thantluanga Zadeng and another,
1999 (2) GLT 399.
(ix) Dilip Kumar Sharma v. Ankam Nageswara Rao
and others, (2015) 14 SCC 555.
(x) Mangluram Dewangan v. Surendra Singh and
others, (2011) 2 SCC 773.
RSA No. 7 of 2017 and RSA No. 8 of 2017
P a g e | 28
21. It is the submission of respondents 1 to 5 in RSA No.7
of 2017 that they are the legal heirs of the second plaintiff and that
Gulamjat Singh, the original owner of the suit land married the
second plaintiff and had three daughters from the wedlock and one
of the daughters namely Ibemhal Devi died leaving behind her two
daughters and one son. He would submit that the deceased
Gulamjat Singh was the original owner of the suit land and he had
gifted the suit land to his late daughter Ibeyaima Devi and that the
said Ibeyaima Devi and Leirensana Devi, the plaintiffs were allowed
to stay inside the suit land for time being by the said Ibeyaima Devi,
but Ibeyaima Devi stealthily recorded her name in the land records
in respect of the suit land.
22. The learned counsel further submitted that the claims
and interest of the children of Ibemhal Devi and Ibeyaima Devi, who
were impleaded as legal heirs of the second plaintiff have been
completely sidelines and not represented at all by the counsel
apparently in collusion with the first plaintiff and her legal heirs and
they came to know the pendency of the litigation only after receiving
the summons in RFA and that the first appellate Court has rightly
remanded the matter to the trial Court for consideration of the matter
afresh.
RSA No. 7 of 2017 and RSA No. 8 of 2017
P a g e | 29
23. This Court considered the submissions raised by the
learned counsel for the parties and also perused the materials
available on record.
24. Thangjam Ningol Chingangbam Ongbi Ibetombi Devi
and her mother Thangjam Ongbi Lairensana Devi have filed
O.S.No.33 of 1967 on the file of the Sub-Judge, Manipur at Imphal
against Thangjam Irabot Singh praying amongst other for declaring
the suit land as their property on the basis of the distribution
mentioned in the plaint or in the alternative it be declared that the
plaintiffs have got their right and title over the suit land by right of
adverse possession.
25. The plaintiffs are the wife and daughter of one
Gulamjat Singh and the original defendant Irabot Singh is the son
of Gulamjat Singh through his second wife. Gulamjat Singh had four
patta lands namely 25/159, 25/152 and 25/42 at Imphal East and
1/39 at Imphal West. Gulamjat Singh during his life time orally
distributed the said patta lands and accordingly, lands under patta
Nos.25/159 and 25/152 became the share of the second plaintiff
and her issues and the land under patta No.25/42 and 1/39 became
the share of the second wife and her issues. On such distribution,
the plaintiffs started to occupy physically the said two patta lands
RSA No. 7 of 2017 and RSA No. 8 of 2017
P a g e | 30
allotted to them as their own and have been continuing to occupy
the same till date. The said two patta lands subsequently
amalgamated into a new patta being patta No.25/165 Imphal East
in the survey.
26. The two other patta lands allotted to the second wife
and her issues are occupied and enjoyed by the original defendant
and his mother. Thus, the case of the plaintiffs is that the original
defendant has no right or authority of the lands under patta
Nos.25/159 and 25/152. The revenue records in regard to the
above said two patta lands stand in the name of the first plaintiff.
27. It appears that the original defendant filed T.S.No.2 of
1966 against the plaintiffs claiming that the said patta lands as his
own by right of inheritance and for ejectment of the plaintiffs. The
said suit was decreed ex parte on 30.7.1966. On coming to know
the ex parte decree, the plaintiffs have filed Civil Review No.2 of
1966 for reviewing the said judgment with delay condonation
application. By an order dated 31.3.1968, both the condonation
application and the review application were dismissed. According
to the plaintiffs, the dismissal of the review application will have no
legal effect as the said judgment and decree were passed by the
RSA No. 7 of 2017 and RSA No. 8 of 2017
P a g e | 31
Court without jurisdiction and also on the basis of fraud committed
by the original defendant.
28. The original defendant denied the distribution of the
lands by Gulamjat Singh amongst his wife and children. He had also
denied that the plaintiffs have been possessing the suit land
continuously, adversely as of right since before the death of
Gulamjat Singh. According to the original defendant, Gulamjat
Singh died in the year 1954 and he himself is the sole legal heir of
Gulamjat Singh. He contends that after the birth of the first plaintiff,
Gulamjag Singh divorced the second plaintiff and married his
mother. Some seven or eight years after the death of Gulamjat
Singh, the original defendant allowed the plaintiffs to reside in the
suit land to enjoy the produce thereof out of love and affection and
therefore, they have right over the suit land and further, the suit is
hit by the principles res judicata.
29. By the judgment dated 30.11.1972, the suit was
dismissed by the Sub-Judge I, Manipur. Aggrieved by the same, the
first plaintiff preferred an appeal being F.A.No.6 of 1976 before the
then Gauhati High Court, Imphal Bench by showing the contesting
and proforma respondents as parties. By the judgment dated
29.4.1973, the Gauhati High Court remanded the matter to the trial
RSA No. 7 of 2017 and RSA No. 8 of 2017
P a g e | 32
Court to rehear the parties on all the issues on the basis of the
evidence adduced and give fresh findings.
30. After remand, the trial Court has taken up the matter.
In the Proceedings of the suit, the present respondents 1, 2, 3 and
5 who were impleaded as legal heirs of the second plaintiff as well
as one Pishak Devi who is the fourth respondent herein filed their
vakalat appointing their counsel. However, in the suit proceedings,
the legal heirs of the second plaintiff and respondent No.4 herein
as well as the original defendant failed to appear without showing
any cause.
31. On a perusal of the judgment of the trial Court, it is
seen that on the side of the plaintiffs, four witnesses were examined
and Exs.A1 to A3 were marked. On the side of the defendants, the
first defendant examined himself as D.W.1 and one Waikhom
Yaima Singh, who was working as Court bailiff was examined as
D.W.2 and marked Exs.B1 to B3.
32. Upon considering the oral and documentary evidence
produced by the parties, the trial Court decreed the suit that the
plaintiffs are the owners of the properties covered by patta
No.25/159 (Ingkhol) and patta No.25/152 IET, which are described
in the plaint on the basis of the distribution amongst the two wives
RSA No. 7 of 2017 and RSA No. 8 of 2017
P a g e | 33
and their daughter and son of the deceased Gulamjat Singh. It is to
be noted that the plaintiffs as reflected in the judgment of the trial
Court dated 18.3.2016 are the present appellant represented by her
legal heirs and the second plaintiff represented by the legal heirs,
who are the present respondents 1, 2, 3 and 5.
33. One of the legal heirs of the second defendant filed an
appeal being Civil Appeal No.3 of 2016 before the District Judge,
Imphal East against the judgment dated 18.3.2016. Pursuant to the
order passed in the Transfer Petition No.6 of 2016, the Civil Appeal
No.3 of 2016 was transferred from the file of the District Judge, East
to the file of the District Judge, Imphal West and re-numbered as
RFA No.15 of 2016. During the pendency of RFA No.15 of 2016,
the principal respondent Nos.1 to 5, who are the legal heirs of the
second plaintiff have filed an appeal direction before the District
Judge, Imphal West and the same was numbered as RFA No.25 of
2016. According to the appellants, the original appellate Court of
Civil Judge, Senior Division, Imphal East is the District Judge,
Imphal East, which has territorial jurisdiction over the matter.
34. In their appeal being RFA No.25 of 2016, the principal
respondents 1 to 5 stated that the judgment and decree dated
18.3.2016 of the trial Court is arbitrary and without applying the
RSA No. 7 of 2017 and RSA No. 8 of 2017
P a g e | 34
judicial mind. They have also claimed in their appeal that they are
the sold owners to the land to the exclusion of the first plaintiff and
her legal heirs. Those facts are never agitated or brought on record
by the respondents 1 to 5 before the trial Court and it is not the case
of the respondents 1 to 5 before the trial Court that they are the sold
owners of the suit land to the exclusion of the first plaintiff. However,
the learned first appellate Court, without considering all those
aspects, remanded the matter to the trial Court, which is assailed
by the appellants herein.
35. By placing reliance upon the findings recorded by the
first appellate Court in RFA Nos.15 and 25 of 2016, the learned
counsel for the first respondent submitted that the first appellate
Court after finding the fact that no opportunity was granted to the
second plaintiff and second defendant and their legal heirs rightly
remanded the suit to be heard afresh after giving opportunities to
the legal heirs of the second plaintiff and the second defendant.
36. The first appellate Court, while setting aside the
judgment of the trial Court and remanded the matter to the trial
Court, held as under:
"15. Further, record shows that after remanding
the suit from the Hon'ble High Court the plaintiff
RSA No. 7 of 2017 and RSA No. 8 of 2017
P a g e | 35
no.1 was represented be her separate advocate
by filing Wakalatnama and that the L.Rs. of plaintiff
no.2 Leirensana was represented by separate
advocates by filing Wakalatnama. The said Judl.
Misc. Case No.98 of 2013 for restoration of the suit
was filed by one Advocate, L.Gogo Singh. In this
stage, it was not cleared that whether the said
L.Gogo Singh, Advocate represented the plaintiff
no.1, Ibetombi Devi and the L.Rs. of plaintiff no.2.
As per the application of Judl. Misc. Case No.98 of
2013, it has been referred as "plaintiff only" and
"not plaintiffs", meaning thereby that the said
Advocate, L.Gogo Singh filed the said restoration
petition for and on behalf of plaintiff no.1, Ibetombi
Devi.
Situated thus, I am of the opinion that since the
L.Rs. of plaintiff no.2 who were brought as
defendant nos.2 to 6 vide order dated 21.4.1972
passed in Judl. Misc. Case No.60 of 1972 were
transposed as plaintiff nos.2(a), (b), (c), (d) and (e)
after the suit was remanded from the Hon'ble High
Court without any specific order and therefore, no
RSA No. 7 of 2017 and RSA No. 8 of 2017
P a g e | 36
summon were issued to them, on being
presumption that they are the plaintiffs and thus,
they were not represented in the suit at the time of
consideration of the restoration of the suit.
16. ..........
On going through the said orders passed on
08.03.2016 and 14.03.2016, it is crystal clear that
the suit which was dismissed on 31.03.2013 was
restored vide order dated 8.3.2016 passed in JM
Case No.98/13 and re-registered it as O.S.No.13
of 2016 and then fixed 14.03.2016 for final
argument. On 14.03.2016 applications being JM
Case Nos.110 and 111 were filed for incorporating
the L.Rs. of defendant no.2, Th. Saratkumar Singh
and filing of Recast plaint and on the same day the
prayer of the said two applications were allowed
by the Trial Court and accordingly, the name of the
legal heirs of late Th. Saratkumar Singh were
incorporated as well as filed recast plaint and on
the same day, heard the Id. counsel of the plaintiff
and fixed 18/03/2016 for order and that the
RSA No. 7 of 2017 and RSA No. 8 of 2017
P a g e | 37
Judgment & Order which is impugned herein was
announced on 18/03/2016.
Record shows that the deceased Th. Saratkumar
Singh and his L.Rs. after his death contested the
suit relating to the Miscellaneous matters upto the
Hon'ble High Court, and later on, failed to appear
before the Court. Nevertheless, it is very clear
from the orders dated 8.3.2016 and 14.3.2016 that
when the main case was put up on 8.3.2016 from
31.3.2013, the names of the L.Rs. of the
defendant no.2 were not incorporated in the plaint
and their names were incorporated in the plaint
only on 14.3.2016 and on the same day heard the
Id. counsel of the plaintiff on ex-parte. In such
situation, it will be more proper to issue summon
to the L.Rs. of the defendant no.2 as they had
keenly contesting the suit since the year 2010.
17. In the result of the foregoing observations, I come to
the conclusion that the trial court has committed gross error for not
issuing summon to the L.Rs. of defendant no.2 and that the L.Rs.
of plaintiff no.2, Leirensana Devi, who are the cross-objectors were
also not represented properly as no summon were issued to them
RSA No. 7 of 2017 and RSA No. 8 of 2017
P a g e | 38
after the suit was remanded from the Hon'ble High Court since they
were wrongly transposed as plaintiffs. Therefore, the suit is required
to be heard afresh after giving ample opportunities to the L.Rs. of
plaintiff no.2 and defendant no.2. Accordingly, no need for further
discussion to the merit of the appeals."
37. On the other hand, the learned senior counsel for the
appellants submitted that the first respondent and the other legal
heirs of the second defendant absented before the trial Court after
passing of the order dated 26.02.2016 where a fine of Rs.5000/-
was imposed to the first respondent to be deposited to the Member
Secretary, Manipur State Legal Services Authority, Imphal. The first
respondent failed to comply with the said direction and hence, the
finding of the first appellate Court that they were not given proper
opportunity is not called for.
38. Thus, it is clear that the second defendant who has not
complied with the direction to make payment of Rs.5000/to the
Member Secretary, Manipur State Legal Services Authority and
also who absented from the proceedings in the trial Court without
showing any cause has been given undue advantage by the first
appellate Court. It is also clear that the first appellate Court failed to
see that it would have been appropriate for the first respondent to
RSA No. 7 of 2017 and RSA No. 8 of 2017
P a g e | 39
file necessary application before the trial Court instead of filing
appeal before the appellate Court.
39. The learned senior counsel for the appellants
submitted that both the RFA No. 15 of 2016 and RFA No. 25 of 2016
before the District Judge, Imphal West are not filed in bonafide
interest of justice. Both the said appeals before the District Judge,
Imphal West are also not with clean hands. He would further submit
that RFA No. 15 of 2016 was filed even without impleading the
necessary parties i.e., parties who are there before the trial court
and the RFA No. 25 of 2016 was presented to the Court having no
jurisdiction. The defect goes to the root of the said appeals and
appeals filed in such manner ought to have been rejected by the
District Judge, Imphal West. It is also submitted that both the RFA
No. 15 of 2016 and RFA No. 25 of 2015 are filed with fraud and by
twisting of facts.
40. An appeal presented to the appellate Court with an
altogether different case from the one presented before the trial
court is not worth consideration. Moreover, the appellate Court is to
examine the available records of the lower Court and to see whether
the trial Court has come to a correct conclusion and not to entertain
RSA No. 7 of 2017 and RSA No. 8 of 2017
P a g e | 40
an altogether different case which was never presented before the
trial court.
41. A party to proceedings has to establish his case and
disprove the case of the other side. Thokchom Ongbi Rajkumari
Romita Devi is the wife of the impleaded defendant No.2 who died
during the pendency of the suit. The second defendant did not
present his case before the trial Court nor confront the case of the
plaintiffs in the original suit. Therefore, apart from the fact that she
had filed RFA No. 15 of 2016 in her individual capacity and without
impleading the other legal heirs of the second defendant and the
first defendant, an appeal at her instance who has no case before
the trial Court is not maintainable at all.
42. On a perusal of the records, it is seen that after the suit
remanded to the trial Court for re-consideration of the suit afresh
with some directions, and during the pendency of the suit before the
trial Court, the husband of the first respondent Saratkumar Singh
was impleaded as defendant no.2, but he did not file his written
statement or anything and thus, nothing is on record of the trial
Court to consider about the claim of the second defendant. Thus, it
is clear that the second defendant who had appeared before the
trial Court with his counsel and later on, failed to appear before the
RSA No. 7 of 2017 and RSA No. 8 of 2017
P a g e | 41
Court and accordingly, the suit was proceeded ex parte. It is also
clear that during the pendency of the suit, the second defendant
expired and thus, the first respondent as well as her son and
daughter were impleaded as legal heirs, but in the appeal preferred
before the first appellate Court, the first respondent herein has
failed to implead her children as party to the proceedings.
43. At this juncture, the learned senior counsel for the
appellants submitted that during the pendency of the suit, the
second plaintiff was expired and the appellants in RFA No.25 of
2016 are the sons and daughters of two daughters of the second
plaintiff, who were predeceased her. He would submit that after the
suit was dismissed only Ibetombi Devi preferred the appeal as the
appellants in RFA No.25 of 2016 were not interested in the case
and even after remanding the suit from the High Court, the
appellants in RFA No.25 of 2016 had failed to appear before the
Court and accordingly, their rights have been waived. This Court
finds some force in the submissions of the learned senior counsel
for the appellants herein.
44. This Court finds from the judgment of the trial Court
that the trial Court after considering the evidences let in by the
parties and pleadings available on record, rightly answered the
RSA No. 7 of 2017 and RSA No. 8 of 2017
P a g e | 42
issues framed by it. The contention of the contesting first
respondent that the suit was decreed ex parte by the trial Court
cannot be countenanced, as the trial Court has decided the suit
based on the oral and documentary evidence adduced by the
parties only. It is also seen that at the relevant point of time, the
contesting defendants appeared before the trial Court and later on
cleverly evaded appearing in the suit after letting in oral evidence
on their side. Thus, the act of the said defendants before the trial
Court cannot go against the appellants herein.
45. The trial Court, after giving reasoning issues-wise,
held that the suit is not barred by the principles of res judicata. While
answering issue No.10, the trial Court held as under:
"Since the defendant has not turned up at the
time of hearing as well as the defendant also has
not led evidence on this point. Thus, this issue is
therefore decided against the defendant."
The trial Court further held as under:
"Issue No.11 and 12: For the foregoing issues and
decisions thereof, the plaintiffs have locus standi to
file the present suit and also there is cause of action
RSA No. 7 of 2017 and RSA No. 8 of 2017
P a g e | 43
for the present suit. Hence, the plaintiffs shall gets
reliefs."
The most important paragraph is paragraph 5, which is
extracted herein under:
"5. The name of the defendant no.2 Shri Thockchom
Saratkumar Singh had been impleaded vide orders
dated 16.2.2010 passed in Judl. Misc. Case
No.189/2005/66/2007 on the application filed by
him. The impleadment of the defendant no.2 comes
under the sues of the defendant Thangjam Irabot
Singh. The decision arrived at by the court in the
present suit shall be binding to the defendant no.2
(now deceased) by his L.Rs."
46. It is to be mentioned that while deciding the first
appeals preferred by the appellants therein, the first appellate Court
failed to see the reasoning given by the trial Court. On the other
hand, the first appellate Court, on its own, came to the conclusion
that the legal heirs of the second plaintiff and second defendant
were not issued with summons and it will be more proper to issue
summons to the legal heirs of the second plaintiff and the second
defendant. The said finding arrived at by the first appellate Court
RSA No. 7 of 2017 and RSA No. 8 of 2017
P a g e | 44
may not be appropriate, as the legal heirs of the second plaintiff and
the second defendant were contested the suit relating to the
miscellaneous matters at one stage and thereafter, wantonly failed
to appear before the trial Court. The act of the legal heirs of the
second plaintiff and the second defendant wantonly failed to appear
before the trial Court cannot go against the appellants herein, as
the trial Court after noting down all these facts, has rightly
proceeded to decide the suit and it is only the first appellate Court
has erred in holding that the legal heirs of the second plaintiff and
the second defendant are to be heard and for that purpose, the suit
is remanded. Such a finding arrived at by the first appellate Court is
contrary to the factual aspects and there is no point in remanding
the suit to the trial Court by the first appellate Court.
47. It appears that while filing the RFA No.15 of 2016, the
first respondent only as an appellant and also in her individual
capacity filed RFA No.25 of 2016 without impleading the other legal
heirs of the second defendant. Further, the first respondent and the
two sons and daughter of the deceased second defendant are his
Class I heirs as being governed by the Hindu Succession Act, 1956.
Therefore, as rightly argued by the learned senior counsel for the
appellant, any right to relief, if any available to the second defendant
RSA No. 7 of 2017 and RSA No. 8 of 2017
P a g e | 45
being considered in the absence of his other legal heirs is not
permissible in law.
48. Under Section 8 of the Hindu Succession Act, 1956,
the property of a male Hindu shall devolve firstly upon the heirs
specified in Class I of the Schedule. The defendants 2(ii), 2(iii) and
2(iv) of the suit are also Class I heirs of the second defendant.
Therefore, when they are not impleaded as appellants, they ought
to be at least impleaded as respondents and they cannot be left out.
Moreover, the second defendant is also not made a party in RFA
No.15 of 2016. Therefore, as rightly said by the learned senior
counsel for the appellant, RFA No.15 of 2016 suffers from non-
joinder of necessary parties and also not filed in accordance with
law.
49. Under Section 52 of the Transfer of Property Act, an
immovable property directly in question in a suit cannot be
transferred or otherwise dealt with by any party to the suit so as to
affect the rights of any other party thereto under any decree or order
which may be made therein, except under the authority of the Court
and on such terms as it may impose. The first appellate Court in its
judgment stated that the second defendant is the fifth purchaser of
the suit land during the pendency of the suit. His claim is that he
RSA No. 7 of 2017 and RSA No. 8 of 2017
P a g e | 46
had purchased the suit land from the fourth owner on 1.4.1991.
Assuming that RFA No.15 of 2016 was filed by all the legal heirs of
the second defendant, the same ought to be rejected as the second
defendant himself acquires no right to the suit land as his alleged
purchase is during the pendency of the suit. In fact, the five sales
were made during the pendency of the suit, which include the
transfer in favour of the deceased second defendant. Thus, the
aforesaid transfers cannot be a sale within Section 54 of the
Transfer of Property Act.
50. It is to be noted that after impleadment of the second
defendant in the suit, he has not filed his pleadings nor produced
evidence and the pleadings now urged and/or urged before the first
appellate Court by the first respondent are never produced by the
second defendant himself before the trial Court. While dealing with
the matter, the first appellate Court ought to have rejected the case
of the first respondent as she was impleaded in the suit itself as
legal heir of the second defendant after his death.
51. Further, the first appellate Court in its judgment held
that when the main case was put up on 3.8.2016 from 31.3.2013,
the names of the legal heirs of the second defendant were not
incorporated and they were incorporated on 14.3.2016 and on the
RSA No. 7 of 2017 and RSA No. 8 of 2017
P a g e | 47
same day the trial Court heard the plaintiff ex parte and in such
situation, it will be proper to issue summons to the legal heirs of the
second defendant. The said finding arrived at by the first appellate
Court may not be correct as the appellant in RFA No.15 of 2016
willfully absented from proceeding with the suit after passing order
dated 26.2.2016 in Jud. Misc. Case No.50 of 2016 and has failed to
comply with the conditional order. Thus, the first appellate Court
erred in holding that adequate chance to the legal heirs of the
second defendant was not given. At the cost of repetition, it is
reiterated that the legal heir of the second defendant who disobeyed
the direction of the trial Court and willfully absented from the
proceedings of the suit deserves no pity and sympathy from the
Court and therefore, there is nothing wrong in the manner the trial
Court decided the suit.
52. It is apposite to note that the respondents 1 to 5 in RSA
No.7 of 2017 ought to be responsible litigants and pursued their
case with due diligence. Failure on their part cannot be a bane to
the present appellants. That apart, the respondents 1 to 5 in RSA
No.7 of 2017 are impleaded as legal heirs of the deceased second
plaintiff and they are in the shoes of the second plaintiff. Therefore,
the plea now put forth by the respondents 1 to 5 is contrary to the
original pleadings of the second plaintiff. Since the appeal being a
RSA No. 7 of 2017 and RSA No. 8 of 2017
P a g e | 48
continuation of the suit ought to be based on the records of the trial
Court, the first appellate Court erred in allowing the appeal filed by
the respondents 1 to 5. The fact remains that the first appellate
Court entertained the appeals filed by the respondents altogether
on a different case which was never presented before the trial
Court.
53. The trial Court, after analyzing the oral and
documentary evidence available on record held that there are
evidences that the distribution of the properties left by late Gulamjat
Singh amongst the two wives and their son and daughter and the
first plaintiff paid revenues for the year 1974 to 1970. In fact, the
trial Court answered some of the issues against the plaintiffs and in
favour of the defendants. Finally, the trial Court held that the
plaintiffs have locus standi to file the suit and also there is cause of
action for the suit and hence, they are entitled to get the reliefs.
Further, taking note of the facts and circumstances of the case and
relying upon the decision reported in 2015 (4) GLT 627 (Abdul
Haque and others v. Abdul Rashid and others), the trial Court
decreed the suit in the following manner:
"In the result, it is ordered and decreed that the
plaintiffs are the owners of the properties covered by
RSA No. 7 of 2017 and RSA No. 8 of 2017
P a g e | 49
patta No.25/159 IE (Ingkhol) and another patta
No.25/152 IET which are morefully described in the
plaint schedule on the basis of the distribution amongst
the two wives and their daughter and son of the
deceased Thangjam Gulamjat Singh. It is also further
ordered and decreed that the judgment and decree
dated 30th July 1966 passed in T.S. Case Nok.2 of
1966 of the erstwhile 1st Subordinate Judge, Manipur
has no legal force as the 1st Subordinate Judge,
Manipur had not declared the present defendant No.1
as owner of the present suit land. It is further ordered
and decreed that assuming the defendant Thangjam
Irabot Singh acquired his right and title over the suit
land on the basis of the decree passed in T.S. Case
No.2 of 1966, his right and title has already been
extinguished by efflux of time. It is further ordered that
and decreed that the whatever transfers made pendent
lite on the basis of the Decree dt. 30.7.1966 in T.S.
Case NO.2 of 1966 made by the defendant Thangjam
Irabot Singh shail have no legal effect and hence void
ab-initio. It is also further ordered and decreed that the
decisions arrived at by this court shall also be binding
RSA No. 7 of 2017 and RSA No. 8 of 2017
P a g e | 50
to the newly added defendant no.2 Thokchom
Saratkumar Singh (now dead) by his L.Rs. his picture
comes to the sues of the defendant no.1 Thangjam
Irabot Singh."
54. This Court finds no infirmity in the judgment and
decree passed by the trial Court in the suit. On the other hand, the
trial Court, based on the oral and documentary evidence produced
by the parties at the relevant point of time, has rightly decreed the
suit. However, the first appellate Court, without appreciating the
factual matrix of the matter, set aside the judgment of the trial Court.
In view of the above discussions, this Court finds that the first
appellate Court erred in allowing the appeals namely RFA Nos.15
and 25 of 2016 and set aside the judgment of the trial Court in
O.S.No.33 of 1967.
55. The proposition laid down in the decisions referred on
either side is not much in dispute. That apart, in view of the
threadbare factual and legal analysis made by the trial Court, which,
in my considered opinion, has been wrongly interfered with by the
first appellate Court, this Court does not find this a fit case for
discussing the settled propositions once again.
RSA No. 7 of 2017 and RSA No. 8 of 2017
P a g e | 51
56. To arrive at this conclusion, one more reason that
weighed with this Court is the undisputed fact that since 1967 the
legal battle is going on between closely related contestants for petty
reasons, without giving a finality to the issue till date. The trial Court,
in my considered view, threadbare analysed the facts and the
evidence on record and only on thoughtful consideration passed a
detailed order, which does not warrant any reconsideration at this
stage.
57. In the result,
a) both the appeals in RSA No. 7 of 2017 and RSA
No.8 of 2017 are allowed.
b) the judgment and decree dated 21.1.2017 passed
in RFA Nos.15 and 25 of 2016 on the file of the District
Judge, Imphal West are set aside and the judgment
and decree dated 18.3.2016 passed in O.S.No.33 of
1967/11/93/27/10/13/2016 on the file of the learned
Civil Judge, Senior Division, Imphal East are restored.
c) There will be no order as to costs.
58. Registry is directed to issue copy of this order to both the
parties through their WhatsApp/e-mail.
JUDGE
Yumk by Yumkham
Digitally signed
FR/NFR
Rother
ham Date:
2021.03.01
Sushil
Rother 11:28:24
+05'30'
RSA No. 7 of 2017 and RSA No. 8 of 2017
