1. This is a Revision under Cl. 6 of the Assam High Court (Jurisdiction Over District Council Courts) Order, 1954, directed against the judgment and order of the District Council Court, Aizawl, reversing the judgment and order of the Magistrate, Subordinate District Council Court, Aizawl. The revision is filed by the defendant, Sailala, the petitioner herein, against the plaintiff Smt. Ngurtaiveli, Opposite Party.
2. The dispute is about the ownership of a house and its compound in the northern side of Chaltlang field between brother and sister. One Thangphunga, Chief of Chaltlang village, died sometime in 1951, leaving behind him his daughter Smt. Ngurtaiveli, opposite party, by his first wife and two sons Sailala, petitioner, and Lalengmawia, by the second wife married after the death of his first wife. Smt. Ngurtaiveli's husband, R. D. Leta died on 12-4-25 leaving behind a son, Sri Lalsikula, by another wife. It is the case of the plaintiff-opposite party that the disputed house belonged to her husband, Late R. D. Leta. After the death of her husband, she lived in the house; but she was forced to leave it in the last part of 1927, being driven out by Smt. Tauhhnuali, younger sister of her hus-band and Sri Lalsikula, claiming that Lalsikula was the rightful owner of the suit premises as heir to his father, R. D. Leta, under the Mizo Customary law of inheritance. Lalsikula was then aged about 16 years, and money was needed for his educational expenses. Later on, at the intervention of Makthanga, Chief of Rashimveng, Aizawl, who was regarded as the brother of R. D. Leta, an agreement was arrived at between them on 13-4-28, under which the suit house was sold to the opposite party at Rs. 500.00. It was reduced into writing marked, Ext. 2. The opposite party thereafter re-occupied the suit house. Her father Thangphunga came to know later on the
treatment meted out to her and the transaction between them, but he raised no objection to it.
It is further the case of the plaintiff-opposite party that her father, Thang-phunga, lived in the main village Seh-lawh while a Chief and Chaltlang was his sub-village. Sailala, the petitioner, while a young boy lived with her at Chaltlang in the disputed house studying in school. When Sailala joined Government service as a Circle Interpreter, he also lived in the suit house with her. After he had succeeded his father as a Chief in 1944, he lived at Sehlawh village. Chiefship was abolished in 1953, and with the compensation money, he built a house of his own at Bawngkawn, where he had shifted. While he was living with her, he owned a big garden adjacent to the suit land, which had been acquired subsequently by Government for construction of a Tourist Lodge. The petitioner, obtained from her 'no objection certificate' as an adjacent owner at the time of the acquisition, evidencing thereby her title to the suit premises. It was further averred that the petitioner's brother Lalengmawia occupied the suit premises and ill-treated her, forcing her to live with her sister in another compound. The petitioner and his brother in assertion of title to the suit premises managed them to get the same mutated in the name of the petitioner by converting it into patta land. Hence, the present complaint filed by Smt. Ngurtaiveli, the opposite party, before the Magistrate, Subordinate District Council Court, Aiza-wal, claiming declaration of her title to the suit premises as an owner and eviction of Lalengmawia therefrom. The case was registered as Misc. Case No. 48 of 1975.
3. The case of the defendant-petitioner was that the suit house and the compound belonged to his father, Thang-phunga, and that the suit house was constructed by the community labour of the villagers according to the Mizo customs. Late R. D. Leta and his sister were allowed to live in the said house. Late R. D. Leta as his son-in-law contributed a little amount towards the construction. It was further pleaded that his father occupied it as his Chief's official house and that the petitioner as successor to office of the Chiefship was the owner of the Chief's official house by virtue of his right as a chief. It was also pleaded that the alleged sale Ext. 2 dated 13-4-28 was not made by the competent person and was not binding on his father or on him. It may be stated that his younger brother, Lalengmawia, was not arrayed as a party in the said proceeding, but relief was claimed against him also in the complaint, he being in occupation of the suit premises. Before the trial Court, Lalengmawia gave his evidence on 11-10-75 stating that he did not turn out the opposite party from the suit house and that he laid no claim on the suit house, as it belonged to his brother, the petitioner, He obtained a certified copy of the plaint and filed written statement subsequently in support, of course, of his brother's case.
4. In the trial Court, a number of witnesses were examined on both the sides and some documents were also produced. The trial Court came to the finding that it could not determine the real fact about the ownership of the suit premises. It, however, made some observations which showed that there was no clear proof of ownership of Thang-phunga. The trial Court, after dismissing the evidence, held the view that both the parties failed to establish their respective cases and ordered that the defendant-petitioner should construct a house for his sister within the compound of the suit house within one year, failing which the plaintiff-opposite party should take possession of the suit house.
5. Being aggrieved by the said judgment and order, the plaintiff-opposite party carried the matter in appeal to the District Council, Aizawl, which was registered as Civil Appeal No. 9 of 1976. The appellate Court examined some more witnesses and also inspected the site. Disagreeing with the trial Court, the appellate Court came to the finding that the suit house and the compound belonged to the plaintiff-opposite party as an owner; and ordered Lalengmawia to vacate the suit house before 30-9-78 by removing his furniture therefrom, without causing any damage to the fruits and vegetables growing in the garden. It further ordered that the compensation money for the approach road through and within the compound acquired for construction of Tourist Lodge should be given to her. The defendant Sailala has come up before us in Revision against the judgment and order of the appellate Court.
6. This Court in exercising power under Cl. 6 of the Assam High Court (Jurisdiction over District Council Courts) Order,
1954, has power to reappreciate evidence as in the case of First Appeal and pass such order as it thinks fit. Reference may be made to the decision of Full Bench of this Court in Ka Idis Marry Kher Congor v. Ka Theirit Lyngdoh, Assam LR (1969) Assam & Naga 92. It was held in that case that the High Court, while exercising revisional power would be entitled to go into facts like an appellate Court and the limitation imposed on the revisional Court under Section 115 of the Code of Civil Procedure does not apply.
7. Keeping in view the principle of law above, we have perused the record. In our opinion, the finding of the first appellate Court is supported by materials on record, and in reaching that conclusion, it gave adequate reasons. It may be mentioned that the trial Court also took notice of certain facts, amongst others, which have material bearing on the point in issue, namely, (a) before construction of the said house Thangphunga, the Village Chief, lived at Sehlawh; and even after completion of the house it was not known whether he left Sehlawh and lived at Chaltalang; and (b) the plaintiff was driven out from the suit house by Lalsikula and the relatives of late R. D. Leta claiming ownership to it by Lalsikula as heir, to his father late R. D. Leta, on the footing that R. D. Leta was the owner of the suit premises, a fact which was so notorious and which could be considered as assertion of hostile title to it as against Thangphunga, while a Chief.
8. The appellate Court, in our view, appears to have accepted the above facts as established in the case. That apart, the appellate Court took into consideration other aspects of the case. It is in evidence that the dead body of the plaintiff's husband, late R. D. Leta, was buried in the suit compound. The sale of the suit house by Ext. 2 at Rs. 500 to the opposite party was held valid. There was proof of payment of Rs. 240 to Lalsikula as evidenced from the document towards the sale price, though document for payment of the balance amount was not forthcoming. The amount was used for educational expenses of Lalsikula. The opposite party on the strength of the sale deed reoccupied the suit house and though Thangphunga came to know about the dealings later on, he raised no objection suggesting thereby that the suit premises did not belong to him. The petitioner owned a big garden adjacent to the suit premises. He took 'no objection certificate' from the opposite party as owner of the adjacent land, at the time of the acquisition of his garden by Government for construction of a Tourist Lodge.
9. We have perused the sale deed dated 13-4-28, Ext. 2. Admittedly, the document does not describe the parties to the transaction in accordance with the legal formalities for sale of an immovable property, but the name of Lalsikula as recipient of the part of the sale price appears in the deed. When this document is read in the light of the statements of the opposite party, it becomes clear that the suit house was sold to the opposite party by Lalsikula represented by Makhthanga, Chief of Rashimveng. Thangphunga or the plaintiff was not party to the document. The document, however, could be used not only as a piece of evidence as the basis of the plaintiff's title to the suit premises against the heir of late R. D. Leta but also against Thangphunga.
10. In our view, on the basis of the facts found by the Court below, which we accept, we have no hesitation in coming to the conclusion that the conduct of late Thangphunga was such that he acquiesced in the ownership of late R. D. Leta in the suit premises. Though various notorious acts were done in the suit premises between the plaintiff and the near relatives of late R. D. Leta, as discussed above, while Thangphunga was alive, Thangphunga remained stood by. In such a case, the doctrine of estoppel by acquiescence comes into play. The proper sense of the word 'acquiescence' is that if a party having a right stands by and sees another dealing with the property in a manner inconsistent with that right and takes no objection while the act is in progress, he cannot afterwards complain.
11. This is a case where Thangphunga, by virtue of his position he occupied as a Chief, wielded immense power in his village. It is highly inconceivable that such a person if he was really the owner, would permit an outsider to deal with his property to his prejudice, without objection or demur from his side. Such a conduct is inconsistent with ownership. Besides other circumstances which go against the plea of Sailala, the petitioner, his obtaining 'no objection certificate' from the opposite party, at the time of acquisition of his garden by Government, leads also to the inference of recognition by implication of the ownership of the opposite party in the suit premises.
12. After going through the evidence of the parties carefully, we are of the view that the appellate Court has rightly held the above facts established by the plaintiff by appreciation of the evidence from its proper perspective, and we do not feel inclined to disturb such a finding. No part of the finding or proceeding appears also to have suffered from legal ipfirmity by committing a breach of principle of natural justice. Lalengmawia, was not arrayed as a party formally in the proceeding; but he was aware of the proceeding; he filed the written statement subsequently after he had given statement already mentioned. In view of his positive statement already mentioned that he had no claim over the suit premises, no injustice would be caused to him if he was asked to vacate the suit premises. The mere fact that he was not formally impleaded as a party will not permit justice to be defeated. Procedure is the handmaid, and not the mistress, of justice and cannot be permitted to thwart the fact-finding court and justice. There is no any manifest error leading to failure of justice. We find substantial justice in this case.
13. Agreeing with the views of the first appellate Court, we hold that the suit premises belong to Sm. Ngurtaiveli, the opposite party, as owner; that Sailala, the petitioner, or Lalengmawia, has no right to interfere with her peaceful possession; and that Lalengmawia should vacate the same. We, however, set aside the second part of the impugned judgment and order that the compensation for acquisition of the approach road through the suit premises should be paid to the opposite party, as it was not the subject matter of dispute between the parties.
14. In the result, the revision fails and is dismissed with the modification indicated above. In the circumstances, the parties are, however, left to bear their own costs.
K. Lahiri, J.