Manipur High Court
R.K. Tombi @ Tombisana Singh vs R.K. Maipaksana Singh & Ors on 29 November, 2021
Item No. 16
(Through Video Conferencing)
LAIREN Digitally
signed by
MAYUM LAIRENMAYU IN THE HIGH COURT OF MANIPUR
M INDRAJEET AT IMPHAL
INDRAJ SINGH
Date:
EET 2021.11.30
14:29:18
SINGH +05'30' RSA No. 7 of 2012
R.K. Tombi @ Tombisana Singh
....Appellant
- Versus -
R.K. Maipaksana Singh & ors.
...Respondents
BEFORE
HON'BLE THE CHIEF JUSTICE MR. SANJAY KUMAR
29.11.2021
The sole appellant in this second appeal, filed under Section 100 CPC,
is the plaintiff in OS No. 21 of 1993 on the file of the learned Subordinate
Judge-II, Manipur East. This suit was filed by him for a declaration that he was
the owner-cum-possessor of the suit land and that the mutation carried out in
relation to the said land in favour of the defendants was null and void. The suit
land admeasures 2.75 acres and is situated in Patta No. 76/130(old) /Patta No.
76/308, Dag No. 3083, Tellou Village, Imphal East.
By its judgment dated 02.01.1995, the Trial Court decreed the suit
with costs. Aggrieved thereby, the principal defendants No. 1, 2 & 3 in the suit
filed Civil Appeal Case No. 10/95/15/2000/2 of 2005 before the learned District
Judge, Manipur East. This appeal was allowed by judgment dated 27.02.2012.
Therein, the Appellate Court recorded that the plaintiff in the suit had never
claimed or established his adverse possession against the principal defendants
and, therefore, did not acquire any right and title to the suit land by adverse
possession as against them. He was accordingly held disentitled to the reliefs
claimed and, in consequence, the appeal was allowed and the suit was
dismissed. Hence, this second appeal by the plaintiff.
The second appeal was admitted on 23.07.2012 by this Court, duly
framing a substantial question of law for consideration.
While so, it appears that respondent Nos. 5 & 8 in this appeal died.
Time was sought on 12.03.2013 to bring their LRs on record. Thereupon,
MC(RSA) No. 2 of 2013 was filed by the appellant/plaintiff seeking to implead
the LRs of the deceased respondent Nos. 5 & 8. However, on 23.09.2015, this
Court dismissed the LR application on the ground that respondent Nos. 5 & 8
had died 5 years prior thereto and without applications being filed for setting
aside the abatement of the appeal and for condonation of delay, an application
for mere substitution could not be entertained. The miscellaneous case seeking
to bring the LRs on record was accordingly dismissed. It appears that this order
attained finality but no steps were taken to seek setting aside of the abatement
of the appeal and condonation of the delay in bringing the LRs on record.
On 06.04.2021, this Court took note of the fact that respondent Nos.
5 & 8 had died long ago and the application filed to bring their LRs on record
was dismissed as long back as on 23.09.2015. Further, Ms. L. Rebeda, learned
counsel for the appellant, informed the Court that respondent No. 1 had also
expired and that no steps were taken in relation to that respondent. The matter
was accordingly adjourned to enable the learned counsel for the appellant to
address these issues. Though Ms. Rebeda, learned counsel, took time on
12.08.2021 to do so, she was unable to answer the queries put to her on
22.09.2021 in relation to the aforestated aspects. The matter was accordingly
adjourned to 29.11.2021 so that the learned counsel could ascertain the legal
and factual position and address the Court.
Today, Ms. L. Rebeda, learned counsel, is unable to say, yet again,
as to whether this appeal would still survive. Mr. A. Jagjit, learned counsel for
respondent No. 3, would assert that the appeal abated long ago as against
respondent Nos. 5 & 8 and, thereafter, against respondent No. 1, but no steps
were taken till date. He would contend that the decree under appeal is a joint
and inseverable one and, therefore, the appeal stands abated in toto.
Upon perusal of the record, it is seen that respondent Nos. 5 & 8
were shown as proforma defendants in the suit, being the legal heirs of the
original owner of the suit land. They claimed, by way of a written statement,
that the title to the suit land continued to be with the original owner. They were
however set ex parte thereafter. Significantly, the Trial Court framed an issue
as to whether the plaintiff had acquired right to the suit land by means of
adverse possession as against all the defendants. Upon consideration, the Trial
Court held that he did but the Appellate Court limited the issue only to the
principal defendants No. 1, 2 and 3 in the suit and found that the plaintiff did
not claim or establish any such adverse possession against them.
That issue apart, Ms. L. Rebeda, learned counsel, had stated that
respondent No. 1, being one of the principal defendants in the suit, had also
expired. This information was given to this Court as long back as on 06.04.2021.
However, no steps have been taken in relation to this respondent also till date.
Ms. Rebeda, learned counsel, does not seek time to do so even at this stage.
Irrespective of whether respondent Nos. 5 & 8 have a role to play in the matter,
respondent No. 1 is a vital and necessary party to this appeal. As he expired
prior to 06.04.2021 and no steps have been taken, this appeal stands abated as
against respondent No. 1. The decree is a joint and inseverable one in so far as
respondent Nos. 1, 2, & 3 in this appeal, the principal defendants in the suit,
are concerned. Therefore, the appeal would fall to the ground owing to its
abatement against respondent No. 1.
The appeal is accordingly dismissed as abated in its entirety.
In the circumstances, there shall be no order as to costs.
A copy of this order shall be supplied online or through whatsapp to
the learned counsel for the parties.
CHIEF JUSTICE
Indrajeet
