Kamu Miji and 17 Ors v. Segi Sangchoju Miji and 20 Ors

ORDER Date : 07-11-2024 Heard Mr. S. Chhetri, learned counsel for the appellants and Mr. T. Gyatso, learned counsel appearing on behalf of the respondents No. 1 to 7, 14 and 16.

¶2As the rest of the respondents did not appear, despite service of notice upon, the case proceeded ex-parte against them.

¶3This is an appeal filed under Section 96 read with order 41 of the CPC for quashing and setting aside of the impugned order dated 15.09.2023, passed by the Court of Civil Judge (Senior Division), Seppa whereby and by which the learned Court, according to the appellant has erroneously dismissed the Title Suit No. 01/2023 by holding that the suit is not maintainable on account of stopple by heavily relying on the written statement and its document filed by the defendants.

¶4The case in brief is that the appellants, 17 in numbers, have jointly own and possess a private land measuring One Crore Three Lakh Square Meters (Area 10.30 Km) located at Lada Circle which is bounded by in the North: Sachung village/Pachuk River, in the South: Wakke and Grangjing village, in the East: Lada Headquarter/Waki Nalah and in the West: Sachung village/Walley Nalah (herein after referred to as Suit Land).

¶5In the said suit land, the Government of India proposed to construct a Page No.# 11/14 High-Altitude Hill Road from Lada to Besai and accordingly, land acquisitions notifications were issued by the Department of Land Management, Government of Arunachal Pradesh as well as by the Deputy Commissioner, Seppa. During the process of survey and public hearing for disbursement of compensation, the respondents surprisingly for the first time have raised objection by filing representation dated 09.11.2021 before the DLRSO, Seppa disputing the said suit land. After exhausting all the available means of remedy, the appellants have filed the Title Suit No. 01/2023 before the Court of Civil Judge (Senior Division), Seppa, praying for decree of right, title, ownership, interest and possession over the suit land.

¶6The said suit was contested by the respondent by filing written statement and raised preliminary objection on the maintainability of the Suit No. 01/2023 inter alia on the ground that, "on dated 08.05.2024, the plaintiffs along with the defendants have executed a Deed of Agreement before the Executive Magistrate, Seppa, East Kameng District, Arunachal Pradesh declaring their ancestral land as common land…" And since the land in question were made common by executing a deed of agreement between the plaintiffs and the defendants, the suit is not maintainable.

¶7On consideration of the written statement filed by the respondent and hearing the parties on preliminary issues, the learned Civil Judge (Senior Division), Seppa by the impugned order/decree, dated 15.09.2023, has rejected the Title Suit. It is submitted that while rejecting the suit, the learned Civil Judge (Senior Division), Seppa has heavily relied upon the written statement filed by the respondents and the documents annexed thereto, more particularly, the agreement dated 08.05.2007, stating therein that some of the plaintiffs were also the signatories to the said agreement dated 08.05.2007 and the Page No.# 12/14 plaintiffs have supressed the material facts while filing the suit.

¶8Mr. Chhetri, learned counsel for the appellants further submits that while considering the case under order 7 Rule 11(d), only the averments mad in the plaint will have to be referred; the written statement and the annexures appended therein cannot be taken into consideration. However, in the instant case, the learned Civil Judge (Senior Division), Seppa have heavily relied upon the written statement file by the defendants/respondents and the annexures, more particularly, the agreement dated 08.05.2007 which is not permitted under the law.

¶9In support of his submissions, the learned counsel for the appellants has relied upon the decision of the Hon'ble Supreme Court in the case of Srihari Hanumandas Totala Vs. Hemant Vithal Kamat and Others reported in

(2021) 9 SSC 99. The relevant paragraph 25 is reproduced herein below: "25. On a perusal of the above authorities, the guiding principles for deciding an application under Order 7 Rule 11(d) can be summarized as follows:

25.1. To reject a plaint on the ground that the suit is barred by any law, only the averments in the plaint will have to be referred to;

25.2. The defense made by the defendant in the suit must not be considered while deciding the merits of the application;

25.3. To determine whether a suit is barred by res judicata, it is necessary that (i) the 'previous suit' is decided, (ii) the issues in the subsequent suit were directly and substantially in issue in the former suit; (iii) the former suit was between the same parties or parties through whom they claim, litigating under the same title; and (iv) that these issues were adjudicated and finally decided by a court competent to try the subsequent suit; and Page No.# 13/14

25.4. Since an adjudication of the plea of res judicata requires consideration of the pleadings, issues and decision in the 'previous suit', such a plea will be beyond the scope of Order 7 Rule 11 (d), where only the statements in the plaint will have to be perused.

¶10For the reasons stated above and in view of the decision of the Hon'ble Supreme Court in the above cited case of Srihari Hanumandas Totala Vs. Hemant Vithal Kamat and Others (supra), the learned counsel for the appellants prays for setting aside and quashing of the impugned order/decree dated

15.09.2023.

¶11Mr. Gyatso, learned counsel for the respondents No. 1 to 7, 14 and 16 fairly submits that Order 7 Rule 11(d) of the CPC provides that the plaint shall be rejected where the suit appears from the statement in the plaint to be barred by any law. Further, the order to decide whether the suit is barred by any law, it is the statement in the plaint which will have to be construed and it is not open to decide the issue on the basis of any other materials including the written statement in the case. However, in the instant case, the learned Civil Judge (Senior Division), Seppa while rejecting the suit has not only considered the written statement but has also relied upon the annexures thereto, i.e. the agreement dated 08.05.2007 which is specifically barred. Hence, Mr. Gyatso, learned counsel while conceding the submissions made by the learned counsel for the appellants prays that the matter may be remanded back to the learned Civil Judge (Senior Division), Seppa for proper adjudication of the suit.

¶12Upon hearing and consideration of the submissions made by the learned counsels for the parties and also, as agreed upon by them, this Court is of the opinion that the matter can be remanded back to the trial court for proper adjudication. Accordingly, this matter is remanded back to the learned Court of Page No.# 14/14 the Civil Judge (Senior Division), Seppa with a direction for proper adjudication of the case in accordance with law.

¶13As a result, the impugned order dated 15.09.2023 passed by the Court of Civil Judge (Senior Division), Seppa in Title Suit No. 01/2023 is hereby set aside and quashed.

¶14With the above observations, this appeal stands disposed of.

¶15The TCR, if any be returned immediately.

JUDGE Comparing Assistant

Page No.# 1/14 GAHC040015142023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) (ITANAGAR BENCH) Case No. : RFA/11/2023 Kamu Miji and 17 Ors. S/o Late Sawu Miji, permanent resident of village Kampa, Lada Circle, P.O Lada, P.S Khenewa, East Kameng District, 2: Kalang Miji Age: S/o Late Dairu Miji permanent resident of village Kampa 3: Solung Miji Age: S/o Late Dongling Miji permanent resident of village Kampa 4: Kamchi Sangchoju Age: Page No.# 2/14 S/o Late Dainu Miji permanent resident of village Kampa 5: Sangchey Sangchoju Age: S/o Late Dainu Miji permanent resident of village Kampa 6: Metung Miji Age: S/o Late Dongli Miji permanent resident of village Kampa 7: Lupa Sangchoju Age: S/o Late Besai Sangchoju permanent resident of village Kampa 8: Apang Miji Age: S/o Late Van Miji permanent resident of village Kampa Page No.# 3/14 9: Rome Miji Age: S/o Metung Miji permanent resident of village Kampa 10: Dolo Miji Age: S/o Late Vam Miji permanent resident of village Kampa 11: Tamar Puroik Age: S/o Late Chai Puroik permanent resident of village Kampa 12: Neroj Sangchoju Age: S/o Late Diji Sangchoju permanent resident of village Kampa Page No.# 4/14 13: Changtung Miji Age: S/o Metung Miji permanent resident of village Kampa 14: Medi Miji Age: S/o Late Vam Miji permanent resident of village Kampa 15: Apik Miji Age: S/o Shri Metung Miji permanent resident of village Kampa 16: Rajiv Sanchoju Age: S/o Shri Kamchi Sangchoju permanent resident of village Kampa 17: Roshan Sangchoju Age: Page No.# 5/14 S/o Shri Kalong Miji permanent resident of village Kampa Arunachal Pradesh VERSUS Segi Sangchoju Miji and 20 Ors. S/o Late Nishang Miji, permanent resident of village Kampa, Lada Circle, P.O Lada, P.S Khenewa, East Kameng District, 2:Tapuk Sangchoju Age: 0 S/o Late Phujung Sangchoju permanent resident of village Nabolang 3:Laigu Sangchoju Age: 0 S/o Late Khandu Sangchoju permanent resident of village Nabolang 4:Tongla Sangchoju Age: 0 S/o Late Sasu Sangchoju permanent resident of village Nabolang Page No.# 6/14 5:Solung Sangchoju Age: 0 S/o Late Aplong Sangchoju permanent resident of village Lada Town 6:Kaman Miji (Khaduju) Age: 0 S/o Late Wuli Miji permanent resident of village Lada town 7:Sangio Naloiju Age: 0 S/o Late Lhupa Naloiju permanent resident of village Lada town 8:Kalo Sangchoju Age: 0 S/o Late Khiongcho Sangchoju permanent resident of village Lada town Page No.# 7/14 9:Dirang Naloiju Age: 0 S/o Late Lhupa Naloiju permanent resident of village Chongkabam 10:Lungmai Miji Age: 0 S/o Late Rajen Miji permanent resident of village Lada town 11:Apang Khaduju Age: 0 S/o Shri Dongrong Khaduju permanent resident of village Lada town 12:Gyamtang Miji Age: 0 S/o Late Lungloi Miji permanent resident of village Salang 13:Nichang Miji Age: 0 S/o Late Changtung Miji Page No.# 8/14 permanent resident of village Nabolang 14:Lam Miji Age: 0 S/o Late Ruju Miji permanent resident of village Nabolang 15:Deka Miji Age: 0 S/o Late Kagyang Miji permanent resident of village Lada town 16:Buli (Anand) Sangchoju Age: 0 S/o Late Rai Sangchoju permanent resident of village Lada town 17:Enu Naloiju Age: 0 S/o Late Sibiyo Naloiju permanent resident of village Lada town Page No.# 9/14 18:Sonari Naloiju Age: 0 S/o Late Sibiyo Naloiju permanent resident of village Lada town 19:Jumsang Naloiju Age: 0 S/o Late Lhupa Naloiju permanent resident of village Lada town 20:Doriang Sangchoju Age: 0 S/o Late Kojo Sangchoju permanent resident of village Lada town 21:Tafi Naloiju Age: 0 S/o Late Rinchin Naloiju permanent resident of village Lada town Arunachal Pradesh Advocate for the Petitioner : Khoda Tama, J Tsering,Sumit Chhetri,Habung Aape,T Lampung Page No.# 10/14 Advocate for the Respondent : T Tsering, Tayom Gamoh,Logsang Yountan,Dejum Tally,Tsering Gyatso BEFORE HONOURABLE MR. JUSTICE BUDI HABUNG