C. Thantluanga vs C. Lalhmangaihzuala

1.Heard Mr. Zochhuana, learned counsel for the appellant as well as Mr. L.H. Lianhrima, learned senior counsel assisted by Ms. H. Lalmalsawmi,

learned counsel for the sole respondent.

This is an appeal filed by the appellant/defendant against the Judgment & Decree dated 20.08.2013, passed by the learned Senior Civil Judge,

Lunglei District, Lunglei in Civil Suit No. 14/2018 (C. Lalhmangaihzuala v. C. Thantluanga), whereby the property in question i.e., LSC No. 32/1975

has been apportioned by the learned Trial Court between the parties. For the purpose of convenience, the appellant shall be referred to as defendant

and the respondent shall be referred to as the plaintiff hereafter.

The plaintiff initiated Civil Suit No. 14/2008 before the learned Trial Court seeking a declaration that the building within LSC No. 32/1975 occupied

by the defendant was constructed by his father and that he be declared the rightful owner of the land covered by the said LSC with the building

standing thereon. In the alternative, the plaintiff sought for a declaration that he be adequately compensated to the tune of Rs. 20 lakhs as cost of the

building standing in the land covered by the LSC, if the defendant is against the mutation of the land in his favour.

The case of the plaintiff in brief is that Smt. Lalziki was the registered owner of the suit land. She had 3 (three) sons, namely, Sh. C. Thantluanga

(appellant), Sh. Dawla and Sh. C. Sapzarzova. The appellant is the eldest amongst the brothers, followed by Sh. Dawla and thereafter, Sh. C.

Sapzarzova. The plaintiff is the son of Sh. C. Sapzarzova. According to the plaintiff, the suit land was verbally distributed amongst the 3 (three)

brothers by Smt. Lalziki, their mother by way of verbal agreement. The main building within the suit land was to be inherited by Sh. Dawla, while the

plaintiff’s father Sh. C. Sapzarzova was to inherit half of the suit land covered by the LSC. The defendant would mortgage the LSC as a security

deposit for securing loan but would not amount to absolute transfer of the ownership to him. Once the loan was repaid, the LSC would be transferred

in the name of Sh. Dawla and Sh. C. Sapzarzova, the plaintiff’s father.

The plaintiff’s father then began constructing a residential house for himself within the suit land on the above agreed terms since late

1980’s and he completed the construction in the early part of 1990’s and occupied the house till he expired on 4. 04.2002. At the same time,

the defendant also constructed a house for his own in another plot of land covered by LSC No. 52/1985 and occupied the same with his family. Even

after completion of constructing his house, through the loan secured by mortgaging the suit land, the defendant did not abide by the verbal agreement

that was made between the brothers and their mother Smt. Lalziki.

The plaintiff’s father expired on 04.04.2002, leaving behind his 4 (four) children including the plaintiff. The plaintiff was the only son and he had

3 (three) sisters. The plaintiff’s parents in the month of February 1998 got divorced. The plaintiff’s mother Smt. Lalengzami after the divorce

lived separately while the plaintiff and his sisters lived with their father. However, after the plaintiff’s father expired, the defendant and his family

with their belongings shifted to the plaintiff’s house and as a result, the plaintiff and his sisters had to leave the house.

After the demise of the plaintiff’s father, the defendant submitted an application for Heirship Certificate on 11.04.2002 before the Sub-District

Council Court at Lunglei for issuance of Heirship Certificate in respect of the movable properties left behind by the plaintiff’s father. Though

divorced, the plaintiff’s mother Smt. Lalengzami submitted a counter claim against the application for Heirship Certificate, which was registered

as Heirship Certificate No. 30/2002. The Heirship Certificate was however dismissed by the Court whereafter, the plaintiff submitted an application

for Heirship Certificate in respect of the movable and immovable properties, left behind by his father. The Heirship Certificate was registered as

Heirship Certificate No. 34/2008. The Sub-District Council Court, Lunglei consequently issued Heirship Certificate in favour of the plaintiff as was

applied but however, the suit land in question was left out and the defendant continued to occupy the suit land and lived in the building standing

thereon. The plaintiff therefore, initiated Civil Suit 14/2008, claiming the right of ownership over the suit land as aforementioned.

Against the Civil Suit, the defendant filed his written statement, wherein he contended that the plaintiff had no locus standi to claim the suit land and

the building standing thereon inasmuch as, he had inherited the same form his mother Smt. Lalziki and in fact, the ownership of the LSC was

transferred into his name on 10. 06.1982. Therefore, he has the absolute right of ownership over the property, which he has been enjoying for more

than the last 20 years.

In support of his claim, the plaintiff examined himself as his own witness and one Sh. R. Lalhmingsanga, a resident of Electric Veng, Lunglei. In his

examination-in-chief, the plaintiff deposed more or less what he stated in his plaint. He stated that immediately after his father expired, they were

forcefully driven out from the house and soon after, the defendant applied for Guardianship for the custody of himself and his sisters in order to gain

complete possession of the suit land and the building standing on it. Realizing the malafide intention of the defendant, their mother, who was already

residing elsewhere, after she was divorced with his father, contested the application made by the defendant whereafter, the application was dismissed.

In support of his case, the plaintiff exhibited as many as 6 (six) documents. On being cross-examined, the plaintiff maintained what he had deposed in

his examination-in-chief.

Sh. R. Lalhmingsanga, the plaintiff’s witness, in his examination-in-chief deposed that he knew the plaintiff’s father and his family since

last 30 years as they were residents of the same locality. He and the plaintiff’s father earned their living as butchers. According to him, he knew

that the plaintiff’s father constructed the house and that the defendant rendered no assistance in the said construction. After the plaintiff’s

father expired, the defendant and his family shifted to the house, constructed by the plaintiff’s father. In his cross-examination, he reiterated what

he deposed in his examination-in-chief, besides stating that it was known to everybody in the locality and that the suit land belongs to the plaintiff’s

father.

Mr. Zochhuana, learned counsel for the defendant submits that the defendant has filed the instant appeal on the grounds inter-alia that the learned

Trial Court by rendering the impugned Judgment & Decree has travelled beyond the prayer made by the plaintiff in the plaint. He submits that

apportionment of the suit land and the building standing thereon was not the prayer of the plaintiff in the Civil Suit and therefore, on this ground alone,

Court may interfere with the impugned Judgment & Decree. Supporting the stand of the defendant presented through the written statement as well as

the examination of the 3 (three) defendants’ witnesses, including himself, he submits that the suit land, which was initially registered in the name of

the defendant’s late mother Smt. Lalziki stood, transferred in the name of the defendant on 10.06.1982. Smt. Lalziki expired on 25.08.1987 after

the transfer of the suit land in the name of the defendant. He submits that the father of the plaintiff expired on 04.04.2002 and during his lifetime, he

never complained or objected to the transfer of the suit land in favour of the defendant, which was done on 10.06.1982. In so far as the construction

of the building upon the suit land is concerned, Mr. Zochhuana submits that the evidence led by the defendant’s witness would clearly show that

the plaintiff’s father was not the only one who invested for the construction. Therefore, the plaintiff cannot have any right to claim ownership over

the suit land and the building standing thereon.

Mr. L.H. Lianhrima, learned senior counsel has made an elaborate submission on behalf of the defendant by supporting the contents of the plaint

and the evidence led by the plaintiff’s witnesses, including the plaintiff himself as has been already been highlighted in the foregoing paragraphs.

I have heard the learned counsels for the parties and I have perused the materials available on record, including the record of the learned Trial

Court. The factual aspects of the matter as may be noticed are broadly not disputed but however, the issue that requires consideration is as to how the

suit land, registered as LSC No. 32/1975 was transferred in the name of the defendant. According to the defendant, in his written statement, filed on

11.02.2009, he inherited the suit land from his mother and after constructing a building in the suit land, he remained in occupation. However, in his

examination-in-chief, he deposed that after his mother Smt. Lalziki expired, he inherited her immovable properties. But then, he also deposed that he

legally mutated the LSC into his name on 10.06.1982 as his mother had given the property to him. His ownership was never questioned by anyone,

including the plaintiff’s father during his lifetime despite his knowledge. In his cross-examination, he deposed that the suit land was mutated in his

name since he required the LSC for the purpose of mortgaging it in order to secure a loan, i.e., House Building Advance. He also deposed that to

support his claim that he inherited the suit land from his mother, he could not produced any Will, Heirship Certificate or any documents to establish that

he was the sole legal heir of his late mother and to the exclusion of his brothers.

Upon appreciating the evidence of the defendant, what is noticed is that there are contradictions, inconsistencies and variations. While he

maintained that the suit land was gifted to him by his mother, he also contended that he had inherited the property after the death of his mother. If the

defendant had inherited the property from his mother, who expired on 25.08.1987, he could not have transferred ownership of the LSC in his name on

10.06.1982 as contended by him. In his cross-examination, he had also deposed that the transfer of the LSC in his name was required to enable him

obtain loan in the form of House Building Advance. The evidence of the plaintiff on the other hand is consistent and cogent. Therefore, it only appears

that there was some sort of an agreement amongst the brothers and their mother Smt. Lalziki, as projected by the plaintiff. If such is the case, I am of

the view that it will not be necessary to enter into the controversy any further.

Taking an overall view of the matter, I am of the considered opinion that the view adopted by the learned Trial Court is a plausible view and

apportionment of the disputed property vide its Judgment & Decree dated 20.08.2013 is justified. It is a well settled principle of law that if two views

are possible and one such view is adopted by the Trial Court, the High Court in exercise of its appellate jurisdiction will not substitute the view taken

only to make a point.

In the result, the appeal is found to be without any merit and the same is accordingly dismissed. The parties are directed to bear their own cost.

Registry shall send back the lower court records forthwith.