T.VAIPHEI,J. - (1.) THIS revision petition under Clause 6 of the Assam High Court (Jurisdiction over District Council Courts) Order, 1954 is directed against the judgment dated 30. 8. 2005 passed by the learned Judge. District Council Court, Khasi Hills, Shillong in Title Appeal No. 1 of 2002 reversing the decision of the Sub-District Council Court, Shillong dismissing Title Suit No. 23 of 2000 as barred by res judicata.
(2.) THE case of the petitioner, as pleaded in the plaint, is that she is the absolute owner of the suit land and houses, which was acquired by her deceased father U Bud Shallam on 20. 3. 1929. In the suit land, there were some houses, one of which was occupied by her aunty Ka Tein Shallam i. e. the original defendant with the permission of her father and without payment of rent so long as she could not acquire landed property of her own. A lot of improvements had been carried out in the suit houses by the plaintiff with the permission of Syiem of Mylliem and his Dorbar dated 22. 3. 1933 and its order dated 1. 7. 1937. However, after the death of the petitioner's father, the original defendant started to assert ownership of the suit land and houses and even went to the extent of interfering with the collection of house rents. The petitioner, therefore, had issued notice to the original defendant requiring her to vacate the suit land and houses and to pay up mesne profits. When the notice did not evoke any response, the petitioner instituted Title Suit No. 9 of 1974 in the Court of Syiem of Mylliem and Dorbar, Mawkhar, Shillong for declaration of her right to and possession of the suit land and houses. It would appear that due to some development in the affairs of the Syiemship, the Court became non-functional whereupon the suit was transferred to the Court of the Sub-District Council Court and was accordingly re-numbered as Title Suit No. 20 of 1990. The suit was contested by the original defendant. In the written statement, the said defendant denied the allegations of the petitioner and instead laid claim to ownership of the suit land and houses. It may be noted that during the pendency of the suit, the original defendant U. Tein Shallam passed away, and came to be substituted by the respondent No. 7 and her four daughters, namely, (i) Ka Do Shallam, (ii) Ka Mila Shallam, (iii) Ka Nela Shallam and (iv) Ka Eu Shallam as her legal representatives. It appears that the respondent No. 7 (who was impleaded as the defendant No. 5 after the death of the original defendant) had failed to contest the suit whereupon the trial court by the judgment and order dated 14. 2. 1992 decreed the suit ex parte. The petitioner asserts that no appeal or revision was promptly preferred by the respondents whereupon the petitioner filed Execution Case No. 1 of 1992. However, after the expiry of the period of limitation, the respondent No. 7 herein preferred an appeal before the Addl. District Council Court, and the same was registered as MCA No. 4 of 1992. Due to the pendency of the appeal, the proceeding in Execution Case No. 1 of 1992 was kept in abeyance. The appellate court ultimately dismissed the appeal. The said respondent No. 7 promptly filed a revision petition before this Court in Civil Revision No. 41 (SH) of 1996. This revision petition was dismissed on 14. 3. 1997. The special leave petition filed by the respondent No. 7 before the Hon'ble Supreme Court also apparently came a cropper. It is the case of the petitioner that the judgment and order dated 14. 2. 1992 passed by the trial court decreeing the suit has now attained finality. Thus, further proceedings in Execution Case No. 1 of 1992 were resumed. After adjourning the case for a number of times, the respondent No. 7 on 7. 10. 1999 filed an application before the Executing Court informing that all the substituted defendants/respondents except him had expired, that he himself was not residing on the suit land, and was given the information that the suit land and houses were occupied by the children and grand children of the deceased respondents and, therefore, prayed for staying the execution of the decree obtained by the petitioner. The Executing Court by the order dated 7. 10. 1999 rejected the application and directed the Bailiff of the Court to execute the decree dated 14. 2. 1992 and submit compliance report on 11. 11. 1999. The respondent No. 1 carried the order to appeal before the Ld. Judge, District Council Court, Shillong, which was registered as Misc. Appeal No. 4 of 1999 (MCA No. 4/99 ). The Ld. Judge admitted the appeal and stayed the order of the Executing Court vide the order dated 7. 10. 1999.
(3.) WHILE MCA No. 4/99 was still pending, six persons, the respondent Nos. 1 to 6 herein, claiming to be the legal representatives of the deceased defendants No. 1 to 4 filed a joint application for substitution contending that though they were occupying the suit land and houses; that they were never aware of the execution proceeding and that they came to know of it only when the Bailiff came to the suit land to execute the decree. They also claimed that they came to know about the institution and disposal of T. S. No. 20 of 1990 only on that day. The appellate court by the order dated 18. 4. 2000 allowed the application and impleaded those applicants as party respondents in the appeal. In the meantime, the said six respondents also instituted Title Suit No. 23 of 2000 against the petitioner and the respondent No. 7, who had contested Title Suit No. 20 of 1990, as the substituted defendant No. 5, for setting aside the said judgment and decree dated 14. 2. 1992. The Sub-District Council Court by the order dated 28. 2. 2002 dismissed the suit as barred by res judicata. The respondents No. 1 to 6 thereupon preferred Title Civil Appeal No. 1 of2002 (TCA No. 1/02) before the Ld. Judge, District Council Court, Shillong. According to the petitioner, though the appeal was contested by her, the appellate Judge without hearing him, suddenly, by the judgment dated 30. 8. 2005, allowed the appeal on the eve of his retirement and remanded the suit to the trial court for re-hearing and then caused the disappearance of the record. The petitioner further states that it was only in May, 2006 that the Judicial Section of the Office of the Ld. Judge of the District Council Court seemed to recover the records. It is submitted by the petitioner that there is no delay in filing this revision petition as the Indian Limitation Act, 1963 is not applicable in this case.;