Manipur High Court
56:40 +05'30' vs Md. Najakat Ali on 4 May, 2023
KABORAMB
AM LARSON IN THE HIGH COURT OF MANIPUR
AT IMPHAL
Digitally signed by
KABORAMBAM CRP(C.R.P. Art. 227) No.17 of 2023
LARSON With
Date: 2023.05.04 MC(CRP(ART.227)/24 of 2023
11:56:40 +05'30'
Mongjam Tombi Singh, aged about 65 years, S/o (Late) M. Thambou
Singh of Thangmeiband Hijam Dewan Leikai, P.O. Imphal, P.S.
Lamphel, Imphal West District, Manipur.
....... Petitioner/s
- Versus -
1. Md. Najakat Ali, aged about 45 years, S/o (Late) Md. Ali Kashim Ali,
resident of Yairipok Changamdabi Makha Leikai, P.O. & P.S.
Yairipok, Imphal East District, Manipur.
2. Surya Bahadur Chhetri, aged about 80 years, S/o (L) Pahal Singh,
resident of Mantripukhri Bazar, P.O. Mantripukhri, P.S. Heingang,
Imphal East District, Manipur (now deceased) represented by his
legal heirs namely:-
i) Smt. Laxmi Devi Chhetry, aged about 79 years, W/o (Late)
Surya Bahadur Chhetry, a resident of Mantripukhri Devi
Land, P.O. Mantripukhri and P.S. Heingang, Imphal East
District, Manipur.
ii) Anand Prakash Chhetry, aged about 59 years, S/o (Late)
Surya Bahadur Chhetry, a resident of Mantripukhri Devi
CRP(C.R.P.Art.227) No.17 of 2023 Page 1
Land, P.O. Mantripukhri and P.S. Heingang, Imphal East
District, Manipur.
iii) Bijoy Kumar Chhetry, aged about 58 years, S/o (Late) Surya
Bahadur Chhetry, a resident of Mantripukhri Devi Land, P.O.
Mantripukhri and P.S. Heingang, Imphal East District,
Manipur
iv) Basant Kumar Chhetry, aged about 51 years, S/o (Late)
Surya Bahadur Chhetry, a resident of Mantripukhri Devi
Land, P.O. Mantripukhri and P.S. Heingang, Imphal East
District, Manipur.
v) Nirmala Chhetry, aged about 55 years, D/o (Late) Surya
Bahadur Chhetry, a resident of Mantripukhri Devi Land, P.O.
Mantripukhri and P.S. Heingang, Imphal East District,
Manipur.
vi) Bimola Sharma, aged about 53 years, D/o (Late) Surya
Bahadur Chhetry, a resident of Mantripukhri Devi Land, P.O.
Mantripukhri and P.S. Heingang, Imphal East District,
Manipur.
3. H.R. Hringpham, aged about 47 years, W/o KL Kapoor of
Sanjenthong Mission Lane, P.O. Imphal, P.S. Porompat, Imphal East
District, Manipur.
.... Respondent/s
CRP(C.R.P.Art.227) No.17 of 2023 Page 2
BEFORE
HON'BLE MR. JUSTICE A. GUNESHWAR SHARMA
For the Petitioner : Mr. N. Ibotombi, Sr. Advocate
Mr. A. Rommel, Advocate
For Respondent No.3 : Ms. L. Brizet Devi, Advocate, R-3
For Respondent Nos.1 & 2 : Nemo
Date of Hearing : 25.04.2023
Date of Judgment & Order : 04.05.2023
JUDGMENT & ORDER
(CAV)
[1] By the present petition under Article 227 of the Constitution, the
petitioner herein challenges the impugned order dated 27.02.2023 passed by
the Ld. Civil Judge (Senior Division), Imphal East in Judicial Misc.Case No.483
of 2022 (Ref. :- Original Suit No.8 of 2014/55 of 2014). By way of Judl. Misc.
Case No.483 of 2022, the petitioner who is defendant in the suit pending
before the Trial Court seeks leave of the Court for calling the case records of
Mut. Case No.314/SDC/HNG/2013 from the Court of Ld. Sub-Deputy Collector,
Heingang to enable him to prove that order dated 06.04.2013 was passed by
the Ld. Sub-Deputy Collector, Heingang with full knowledge and consent of
defendant No.3 at the time of leading evidence of defendant No.1. Vide
impugned order dated 27.02.2023, the application was rejected.
CRP(C.R.P.Art.227) No.17 of 2023 Page 3
[2] The brief fact of the case in nutshell is that the respondent
No.2/defendant No.3,Surya Bahadur Chhetri (now deceased and represented
by LRs) was the owner and the recorded pattadar of the Agricultural land under
patta No.91/101(Old), 16(New) covered by C.S. Dag No.98 measuring an area
of .66 acre situated at Village No.9 - Chingmeirong East and he transferred the
said land to the petitioner herein/defendant No.1 under a kutcha sale deed
dated 12.02.2013. Thereafter, name of the petitioner/defendant No.1 was
entered into the land records of right by cancelling the name of respondent
No.2/defendant No.3 vide mutation order dated 06.04.2013 passed by the Ld.
SDC, Heingang in Mutation Case No.314 of 2013. It is stated that the mutation
proceeding was done with the knowledge and consent and in presence of
respondent No.2/defendant No.3 who also took part in the mutation
proceeding. Thereafter, the petitioner/defendant No.1 transferred the said land
to proforma respondent No.3/defendant No.2, H.R. Hringpham by executing a
Regd. Sale Deed bearing No.396 (v) dated 12.04.2013 of the Sub-Registrar,
Sawombung, Imphal East, Manipur. Subsequently the name of proforma
respondent No.3/defendant No.2 was entered in the records of right of the said
land vide mutation order dated 18.04.2013 passed by the Ld. SDC, Heingang
in Mutation Case No.351/SDC/IE/2013. Thereafter, respondent No.1/plaintiff
filed Original Suit No.8 of 2014/55 of 2014 before the Court of Ld. Civil Judge
(Senior Division), Imphal East against the petitioner as defendant No.1,
proforma respondent No.3 as defendant No.2 and respondent No.2 as
defendant No.3 alleging that respondent No.1/plaintiff purchased the land from
CRP(C.R.P.Art.227) No.17 of 2023 Page 4
respondent No.3/defendant No.2 under a Regd. Sale Deed. The
petitioner/defendant No.1 entered his appearance in the above suit and filed
his written statement. The respondent No.3/defendant No.2 also entered her
appearance and filed written statement-cum-counter claim in connection with
the suit. The respondent No.2/defendant No.3 also filed his written statement
alleging that the entry of the name of the petitioner/defendant No.1 in the
record of right of the aforesaid land was made behind his back and without his
knowledge and such subsequent transferred made by the petitioner/defendant
No.1 to respondent No.3/defendant No.2 cannot be acted upon the eye of law.
The suit filed by respondent No.1/plaintiff was dismissed for non-prosecution
and the counter claim made by the proforma respondent No.3/defendant No.2
is pending for disposal. During pendency of the suit, the petitioner/defendant
No.1 filed Judl. Misc. Case No.483 of 2022 before the Ld. Civil Judge (Senior
Division), Imphal East under Order VIII Rule - 1A(3) of the Code of Civil
Procedure, 1908 read with Section 151 of the same Code praying for calling
the case records of Mutation Case No.314/SDC/HNG/2013 from the Ld. SDC,
Heingang in connection with the said suit so as to enable the
petitioner/defendant No.1 to prove that the order for recording the name of the
petitioner/defendant No.1 by cancelling the name of respondent
No.2/defendant No.3 was passed by the Ld. SDC, Heingang with the full
knowledge and consent of the respondent No.2/defendant No.3 and he was
present in the said proceeding. The respondent No.2/defendant No.3 filed his
written objection to the Judl. Misc. Case No.483 of 2022.
CRP(C.R.P.Art.227) No.17 of 2023 Page 5
[2.1] On that day, the petitioner/defendant No.1 also filed a Misc.Case
being Judl. Misc. Case No.484 of 2022 before the Ld. Civil Judge (Senior
Division), Imphal East under Order XVI Rule 6 of the Code of Civil Procedure
read with Section 151 of the same Code for allowing him to file certified copy of
the order dated 06.04.2013 passed by the Ld. SDC, Heingang in Mutation
Case No.314 of 2013 for recording his name in the records of right of the suit
land by cancelling the name of respondent No.2/defendant No.3 from the land
records. The Ld. Civil Judge (Senior Division), Imphal East has taken up the
said application first and allowed the prayer.
[2.2] Vide impugnedorder dated 27.02.2023, the Ld. Civil Judge (Senior
Division), Imphal East rejected the prayer sought by the petitioner/defendant
No.1 on the ground that it is not for the petitioner/defendant No.1 to prove that
the order dated 06.04.2013 in Mutation Case No.314/SDC/HNG/2013 was
passed with the consent of the present respondent No.2/defendant No.3,
rather the burden of proof lies on the party who denies it and as such there is
no necessity for calling the case record of Mutation Case
No.314/SDC/HNG/2013 from the Court of the Ld. SDC, Heingang.
[2.3] Being aggrieved by the same, the petitioner/defendant No.1
challenges the impugned order mainly on the ground that the case record of
Mutation Case No.314 of 2013 in the Court of Ld. SDC, Heingang is very much
required to decide the real dispute, as respondent No.2/defendant No.3
alleged that the mutation order was done without his knowledge while it is the
CRP(C.R.P.Art.227) No.17 of 2023 Page 6
specific case of the petitioner/defendant No.1 that respondent No.2/defendant
No.3 was very much present during the proceedings of the Mutation Case and
the mutation order was passed in his presence.
[3] This Court issued notice on 29.03.2023 to the respondents and
directed the petitioner/defendant No.1 to take steps by speed post upon
respondent No.1 and respondent No.2 and dasti on respondent No.3.
[3.1] The respondent No.3 entered appearance through her counsel, but
none appeared on behalf of respondent No.1 and LRs of respondent No.2
inspite of service of notice by speed post.
[4] Heard Mr. N. Ibotombi, learned senior counsel assisted by Mr. A.
Rommel, learned counsel for the petitioner/defendant No.1 and Ms. L. Brizet
Devi, learned counsel for respondent No.3/defendant No.2.
[5] Mr. N. Ibotombi, learned senior counsel for the petitioner/defendant
No.1 submits that it is the specific case of the petitioner/defendant No.1 that
respondent No.2/defendant No.3 transferred the said land in his favour and
respondent No.2/defendant No.3 was present during the proceeding of
Mutation Case No.314 of 2013 in the Court of Ld. SDC, Heingang. On the
other hand, the respondent No.2/defendant No.3 denies that the mutation
proceeding of Mutation Case No.314 of 2013 and mutation order dated
06.04.2013 were passed by the Ld. SDC, Heingang without his knowledge and
in his absence.
CRP(C.R.P.Art.227) No.17 of 2023 Page 7
[6] Mr. N. Ibotombi, learned senior counsel also states that by allowing
the Misc.Case being Judl. Misc. Case No.484 of 2022 filed before the Ld. Civil
Judge (Senior Division), Imphal East, the plaintiff/respondent No.1 filed on
record a certified copy of the mutation order dated 06.04.2013 passed by the
Ld. SDC, Heingang in Mutation Case No.314 of 2013. However, he clarifies
that in the certified copy, original signature of the respondent No.2/defendant
No.3 is not present. Hence, calling for record of the mutation proceeding from
the Court of Ld. SDC, Heingang with respect to Mutation Case No.314 of 2013
is very much required for proving the case of the petitioner/defendant No.1. Mr.
N. Ibotombi, learned senior counsel for the petitioner prays that the impugned
order be set aside and the prayer for calling of the records of Mutation Case
No.314/SDC/HNG/2013 from the Court of Ld. SDC, Heingang be allowed.
[7] Ms. L. Brizet, learned counsel for respondent No.3/defendant No.2
supports the submission of Mr. N. Ibotombi, learned senior counsel for the
petitioner.
[8] From the pleadings of the parties, it is seen that the case of the
petitioner/defendant No.1 is that the suit land was transferred by respondent
No.2/defendant No.3 in his favour and the suit land was recorded in his name
in presence of respondent No.2/defendant No.3 who also signed in the case
record of the said proceedings. On the other hand, respondent No.2/defendant
No.3 denies that the entry of the petitioner/defendant No.1 was done without
his knowledge and behind his back.
CRP(C.R.P.Art.227) No.17 of 2023 Page 8
[9] A plain reading of Section 101 of the Indian Evidence Act reveals
that the burden of proof is on the person who asserts existence of certain fact
and desires the Court to pass an order in his favour then, Illustration (b): A
desires a Court to give judgment that he is entitled to certain land in the
possession of B, by reason of facts which he asserts, and which B denies to be
true. A must prove the existence of those facts.
[10] In the recent case of Smriti Debbarma (Dead) through Legal
Representative vs. Prabha Ranjan Debbarma and Ors. (04.01.2023 - SC):
MANU/SC/0010/2023: AIR 2023 SC 379, Hon'ble Supreme Court held that the
burden of proof lies on the person who asserts existence of a fact in affirmative
and not on the party who denies it. Relevant para is reproduced as:
"31. The burden of proof to establish a title in the present case lies
upon the Plaintiff as this burden lies on the party who asserts the
existence of a particular state of things on the basis of which she
claims relief. This is mandated in terms of Section 101 of the
Evidence Act, which states that burden on proving the fact rests
with party who substantially asserts in the affirmative and not on
the party which is denying it. This Rule may not be universal and
has exceptions, but in the factual background of the present case, the
general principle is applicable. In terms of Section 102 of the
Evidence Act, if both parties fail to adduce evidence, the suit must fail.
Onus of proof, no doubt shifts and the shifting is a continuous process
CRP(C.R.P.Art.227) No.17 of 2023 Page 9
in the evaluation of evidence, but this happens when in a suit for title
and possession, the Plaintiff has been able to create a high degree of
probability to shift the onus on the Defendant. In the absence of such
evidence, the burden of proof lies on the Plaintiff and can be
discharged only when he is able to prove title. The weakness of the
defence cannot be a justification to decree the suit. The Plaintiff could
have succeeded in respect of the Schedule 'A' property if she had
discharged the burden to prove the title to the Schedule 'A' property
which squarely falls on her. This would be the true effect of Sections
101 and 102 of the Evidence Act. Therefore, it follows that the Plaintiff
should have satisfied and discharged the burden under the provisions
of the Evidence Act, failing which the suit would be liable to be
dismissed. Thus, the impugned judgment by the High Court had
rightly allowed the appeal and set aside the judgment and decree of
the trial court. We, therefore, uphold the findings of the High Court
that the suit should be dismissed. We clarify that we have not
interfered or set aside any observations of the High Court in re the
Tripura Land Revenue and Land Reforms Act, or Defendants' claim
etc. Notably, M/s. Hotel Khosh Mahal Limited is not a party to the
present proceedings."
CRP(C.R.P.Art.227) No.17 of 2023 Page 10
[11] In the present case, the petitioner/defendant No.1 asserts that the
mutation order dated 06.04.2013 in Mutation Case No.314/SDC/HNG/2013
was passed by the Ld. SDC, Heingang in presence of respondent
No.2/defendant No.3 and with his knowledge and consent. On the other hand,
respondent No.2/defendant No.3 denies such an assertion.
[12] Therefore, as per the illustration (b) appended to Section 101 of
Indian Evidence Act, the burden is primarily on the petitioner/defendant No.1 to
prove that the mutation order was passed with knowledge and consent and in
presence of respondent No.2/defendant No.3.This fact can be proved by
calling for the record of the Mutation Case No.314/SDC/HNG/2013 from the
Court of Ld. SDC, Heingang. Inability of respondent No.2/defendant No.3 to
prove his absence will not ipso facto confirms his presence.
Petitioner/defendant No.1 has an obligation to prove his positive assertion as
per the recent case of Smriti Debbarma (supra).
[12.1] Therefore, the Ld. Civil Judge (Senior Division), Imphal East was
wrong in presuming that the burden of proof lies only on respondent
No.2/defendant No.3 to deny this fact. This Court is of the opinion that the
burden of proof primarily lies on the petitioner/defendant No.1 who alleged the
existence of the fact, i.e., presence of respondent No.2/defendant No.3 during
CRP(C.R.P.Art.227) No.17 of 2023 Page 11
the mutation proceeding which was conducted with his knowledge and
consent.
[12.2] This Court is of the opinion that mere filing of certified copy of the
order dated 06.04.2013 in Mutation Case No.314 of 2013 does not discharge
the burden to prove the existence by the petitioner/defendant No.1 to the effect
that respondent No.2/defendant No.3 was present during the mutation
proceeding. This rival fact of presence or absence of respondent
No.2/defendant No.3 can be established only from the proceeding of the
Mutation Case No.314 of 2013.
[12.3] Accordingly, the impugned order dated 27.02.2023 is set aside and
the present petition is allowed.
[12.4] The Ld. SDC, Heingang is directed to send records of the mutation
proceedings in Mutation Case No.314/SDC/HNG/2013 along with the order
dated 06.04.2013 to the Court of Ld. Civil Judge (Senior Division), Imphal East
in connection with OS No.8 of 2014/55 of 2014 within 2(two) weeks from the
date of receipt of copy of this order.
[12.5] The Revision Petition and pending application being MC(CRP
Art.227) No. 24 of 2023 are disposed of in terms of the above observation and
directions. No costs. It is clarified that this Court does not express any opinion
on the merit of the case and nothing said herein shall prejudice the case of the
parties during the trial.
CRP(C.R.P.Art.227) No.17 of 2023 Page 12
[12.6] Send copy of this order to the Ld. Civil Judge (Senior Division),
Imphal East and to the Ld. SDC, Heingang for information and necessary
action.
JUDGE
-Larson
FR/NFR
CRP(C.R.P.Art.227) No.17 of 2023 Page 13
