Manipur High Court
Angom Sanamacha Singh vs Phijam Tiken Singh on 22 August, 2022
Item No. 24
LAIRENM Digitally signed
AYUM
by
LAIRENMAYUM IN THE HIGH COURT OF MANIPUR
AT IMPHAL
INDRAJEET
INDRAJE SINGH
Date: 2022.08.23
ET SINGH 16:10:08 +05'30'
RSA No. 5 of 2021
1. Angom Sanamacha Singh, aged about 52 years, s/o late A. Ibochouba
Singh,
2. Angom Sanatombi Singh, aged about 50 years, s/o late A. Ibochouba
Singh and
3. Angom Sanatomba Singh, aged about 47 years, s/o late A. Ibochouba
Singh
... All are residents of Khurai Puthiba Leikai, P.O. Lamlong,
P.S. Porompat, Imphal East District, Manipur-795010.
....Appellants/Appellants/Defendants.
- Versus -
1. Phijam Tiken Singh, aged about 67 years, s/o late Phijam Babudhon
Singh,
2. Phijam Loken Singh, aged about 64 years, s/o late Phijam Parijat Singh
and
3. Phijam Ranjit Singh, aged about 50 years, s/o late Phijam Parijat Singh
... All are residents of Khurai Puthiba Leikai, P.O. Lamlong,
P.S. Porompat, Imphal East District, Manipur-795010.
...Respondents/Respondents/Plaintiffs.
BEFORE
HON'BLE THE CHIEF JUSTICE MR. SANJAY KUMAR
22.08.2022
[1] This second appeal arises out of the concurring judgment and order
dated 01.07.2020 of the learned District Judge, Imphal East, in First Civil Appeal
No. 1 of 2020, confirming the ex parte judgment and decree dated 27.05.2019
passed by the learned Civil Judge (Senior Division), Imphal East, in Original Suit
No. 31 of 2017. The appellants were the defendants in the said suit.
[2] Heard Mr. L. Birendrakumar, learned counsel for the appellants; and
Mr. H. Nabachandra, learned counsel for the respondents.
Parties shall hereinafter be referred to as arrayed in the suit.
[3] The plaintiffs filed the subject suit seeking a declaration that they
were the joint owners of the Suit Schedule Land A; a declaration that the
registered sale deed bearing No. 1454 dated 24.09.1976 and the register sale
deed bearing No. 2568 dated 17.10.1975 were null and void; a declaration that
the mutation in respect of the aforestated sale deeds was null and void; a
permanent injunction restraining the defendants from closing the gate of the
Ingkhol Lambi (pathway); eviction of the defendants from the Suit Schedule
Land B; and for costs.
[4] Though the defendants entered appearance before the Trial Court
and filed their vakalatnama in October, 2017, the suit proceeded ex parte
against them. Their applications to file a written statement-cum-counter claim
with delay were rejected and they chose not to take the matter further.
The plaintiffs marked four exhibits in evidence and examined three
witnesses. Plaintiff No. 2 was examined as PW No. 1 and two relations were
examined as PW Nos. 2 & 3. The Trial Court settled 4 points for determination:
(1) Whether the plaintiffs have got Suit Land A as share of late Babudhon
Singh or not?
(2) Whether the defendants are permissive possessors of the Suit Land B
or not?
(3) Whether the defendants blocked the Ingkhol Lambi from 06.01.2017?
(4) Whether the plaintiffs are entitled to the reliefs they claimed.
[5] By the ex parte judgment and decree dated 27.05.2019, the Trial
Court opined as follows on the above points for determination: On Point No. 1,
the Trial Court held that the plaintiffs, being the Class-1 legal heirs of late Phijam
Babudhon Singh, inherited a portion of the Suit Schedule Land A but not the
whole extent of 0.58 acre claimed by them. The Trial Court concluded that they
had inherited 0.355 acre only. On Point No. 2, the Trial Court held that late
Phijam Babudhon, the father of the plaintiffs, sold a portion of the land
admeasuring 0.17 acre out of the entire homestead land to the father of the
defendants in the years 1975 and 1976 by executing two registered sale deeds,
viz., registered sale deed No. 2568 dated 17.10.1975 and registered sale deed
No. 1454 dated 24.09.1976. The Trial Court held that these documents were
authentic, attracting the presumption of genuineness under Section 90 of the
Indian Evidence Act, 1872, as they were more than 30 years old. In
consequence, the Trial Court concluded that, as the land admeasuring 0.17 acre
was sold to the father of the defendants, they were not in permissive possession
of the said land, as claimed by the plaintiffs. As regards Point No. 3, the Trial
Court believed the evidence of the plaintiffs' witnesses that the defendants had
blocked the Inkhol Lambi on 06.01.2017 by wood and tin and accordingly held
so. On Point No. 4, the Trial Court held that the plaintiffs were only entitled to
seek relief in relation to the closing/locking of the Inkhol Lambi and restrained
the defendants from doing so, directing that the blockage should be removed
with immediate effect. The plaintiffs were given free access to their homestead
land through the Inkhol Lambi, which they had been using since a long time.
The rest of the plaint prayers were rejected.
[6] Aggrieved by this ex parte judgment and decree, the defendants
approached the First Appellate Court. Having condoned the delay on their part
in doing so, the First Appellate Court considered the matter on merits, but held
against them by the judgment and order dated 01.07.2020. The First Appellate
Court took note of the fact that the plaintiffs had not chosen to file an appeal
and accordingly held that Point Nos. 1 & 2, which had been decided against the
plaintiffs, did not require examination. As regards Point No. 3, with regard to
blockage of the Inkhol Lambi on 06.01.2017, the First Appellate Court took note
of the oral evidence adduced before the Trial Court and held that no grounds
were made out to interfere with the decision of the Trial Court on that count. In
consequence, the First Appellate Court did not interfere with the single relief
granted by the Trial Court and confirmed its judgment and decree.
[7] Mr. L. Birendrakumar, learned counsel, would contend that there is
no possibility of the plaintiffs claiming any easementary right, as there is no road
abutting the land sold to the defendants under the two registered sale deeds,
whereby there could be ingress and egress therefrom to the land of the
plaintiffs, through the land sold to the defendants. Learned counsel would assert
that it is the defendants who pass through the land of the plaintiffs to reach the
public road. However, perusal of Schedules A & B attached to the suit plaint
reflects that Suit Schedule Land A is an extent of 0.58 acre and it is bounded on
all four sides by homestead lands. Admittedly, an extent of 0.17 acre out of this
larger extent, shown as Suit Schedule Land B, was sold to the defendants and
the same is also shown to be bounded on all four sides by homestead lands.
Though Mr. L. Birendrakumar, learned counsel, would contend that the suit
schedules were shown incorrectly, he fairly concedes that the defendants did
not even cross-examine the witnesses of the plaintiffs to ascertain whether there
was any public road abutting the land of the plaintiffs, as claimed by them. Thus,
as matter stand, there is no indication of any road abutting the larger extent or
the smaller extent of lands shown in the suit schedule, but it is the evidence of
all the witnesses for the plaintiffs that there is an Inkhol Lambi and the same
was blocked by the defendants on 06.01.2017. It is possible that there is an
easement through the neighbouring homestead land. In any event, the question
of the defendants blocking the Inkhol Lambi would not arise unless the plaintiffs
were using the same as a point of ingress and egress. That being so, as the
plaintiffs clearly proved the factum of their easementary right, the Courts below
did not err in recognizing the same and giving effect to it.
[8] Mr. L. Birendrakumar, learned counsel, would further contend that
the First Appellate Court erred in not giving a finding as to the title of the
defendants. However, as already noted, it was the plaintiffs who suffered an
adverse finding on this point before the Trial Court but they did not choose to
challenge the same. Therefore, it was not necessary for the First Appellate Court
to go into the issue again and reiterate the finding in favour of the defendants.
In that view of the matter, the questions of law sought to be framed
in this second appeal with regard to alleged misconstruction of documents and
legal propositions do not even arise. The case squarely turns upon the question
of fact as to whether the plaintiffs established their easementary right. As they
were found to have done so by both the Courts below, that question of fact
stands settled. No question of law, much less a substantial question of law,
therefore arises for consideration in this second appeal.
The second appeal is accordingly dismissed at the admission stage.
No order as to costs.
CHIEF JUSTICE
Indrajeet
