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GAUHATI HIGH COURT
Mrs. M. SHARMA, J.
Dwijabrata Das and others -Appellant
Versus
Debabrata Das and another -Respondent
First Appeal No. 2(SH)/92
Decided On : 12-07-1993
MANIPUR (COURTS) ACT - S. 32 - APPEAL - JURISDICTION OF COURT - VESTED RIGHT OF APPEAL OF PARTIES TO SUIT ACCRUED AT TIME OF COMMENCEMENT OF LIS - CONFINED TO SUPERIOR COURT/TRIBUNAL ONLY - NOT TO PARTICULAR COURT OF TRIBUNAL - CHANGE OF APPELLATE COURT BECAUSE OF RAISING OF PECUNIARY JURISDICTION - DOES NOT INFRINGE OR TAKE AWAY RIGHT TO APPEAL VESTED TO PARTIES TO SUIT AT COMMENCEMENT OF LIS.
Fact of the Case:
Petitioner challenged the order of the District Judge admitting an appeal against the judgment and decree passed by the Subordinate Judge-II, Manipur in Original Suit No. 53/90. The suit was valued at Rs. 5,100/- and under Section 32 of the Manipur (Courts) Act, 1955, at the time of institution of the suit in 1990, appeal from a decree or order of Munsiff and of a Subordinate Judge in any suit value of which did not exceed Rs. 5,000/- lay before the Court of the District Judge and in all other cases to the High Court. The petitioner contended that the learned District Judge had no jurisdiction to entertain the appeal as the suit was valued at Rs. 5,100/- and that the right to appeal to the High Court was a vested right that could not be taken away by a subsequent amendment to the Act.
Finding of the Court:
The court held that the right to appeal to a superior court/tribunal from the judgment and order passed by an inferior court/tribunal is a vested right of the parties to litigation and such right accrues with the commencement of the lis in the original court/tribunal unless such right is taken away by enactment with retrospective effect. In this case, the right of the parties to approach the superior court against the judgment and order passed by the court in which the suit was instituted accrued in the year 1990 and that right had not been taken away by the Manipur Act 5 of 1992. The vested right to approach the superior court against the judgment and decree of the original court had been preserved and in fact, an appeal against the judgment and decree had been preferred before the superior court, namely, the Court of the learned District Judge. The court further held that the change of the appellate court because of raising the pecuniary jurisdiction had no way infringed or taken away the right to appeal vested to the parties to the suit at the commencement of the lis.
Issues: Whether the amendment to Section 32 of the Manipur (Courts) Act, 1955, which raised the pecuniary jurisdiction of the District Judge, took away the vested right of the parties to appeal to the High Court in a suit instituted in 1990.
Ratio Decidendi: The right to appeal to a superior court/tribunal from the judgment and order passed by an inferior court/tribunal is a vested right of the parties to litigation and such right accrues with the commencement of the lis in the original court/tribunal unless such right is taken away by enactment with retrospective effect. The right to appeal to a superior court which vests to the parties to litigation at the time of commencement of the lis, cannot be stressed or enlarged to include the particular appellate court before which the appeal could be preferred at that time because of pecuniary jurisdiction. The vested right to appeal of the parties to the suit accrued at the time of commencement of the lis is confined to superior court/tribunal only and not to particular court or tribunal. The change of the appellate court because of raising the pecuniary jurisdiction has no way infringed or taken away the right to appeal vested to the parties to the suit at the commencement of the lis.
Final Decision: The petition was dismissed, and the order of the District Judge admitting the appeal was upheld.
This first appeal has been preferred by the defendants against the judgment and decree passed by Assistant District Judge, Shillong in TS (Partition) No. 12(H)/1987.
2. Plaintiffs and defendants are the joint owners of the property in dispute situated at Jail Road, Shillong measuring approximately 9689 sq. ft. covered by plot No. 10(1), pata No. 59 issued by Deputy Commissioner, United Khasi and Jaintia Hill Distict, Shillong dated 19-12-1969. Predecessor in interest of both the parties of the property was Late Raibahadur Dinesh Chandra Das who died on 18-10-(sic). According to Hindu Law of Succession then preventing, property devolved on both the parties as legal heirs and the same was jointly inherited by the successors, including the wife (acquired life interest) of the predecessors in interest who was the mother of the parties. The mother of both the suit parties died in 1973 and the property devolved to the sons and daughter in law who became the owner of the 1/6 th share of the entire property. Share of the mother, who also benefited after the Hindu Succession Act came into force in 1956, devolved to the daughters, along with five some of her. After her death the five married daughters became legal heirs each having been 1/10th share holder of their mothers 1/6th share.
3. The two opposite parties as plaintiffs filed the Title suit for partition of their property together with 2/10th of the mothers 1/6th share in the said property jointly to them and by separating the same for their separate and peaceful enjoyment. Their case is that they are living outside Shillong plaintiff Debabrata Das at Tinsukia and plaintiff Satyabrata Das at Calcutta, and due to their absence from Shillong they find difficulty to full enjoyment of their shares in the property, jointly with the defendants shares and accordingly the asked them to partition the property jointly between the two plaintiffs and separately from defendants. The plaintiffs/opposite parties included all sisters as defendants by amending the plaint accordingly. The defendants/appellants No. 1, 2 and 3 filed written statement jointly, contested the suit on the ground that, (a) ancestral dwelling being a very small one not capable of partition and entire property should be allowed to be retained by the defendants/appellants who have been living in the property; (b) partition will cause fragmentation of the property which is barred by Govt. orders, for transfer; (c) appellants are maintaining the property since the death of their father by doing all the repairing works, paying taxes, revenues and other charges; (d) appellants have been in exclusive separate possession of the said dwelling house among themselves including mother under mutual arrangements by undertaking all repairs and the same cannot be partitioned to their prejudice, effecting their exclusive possession and enjoyment; (e) that the appellants have been regularly remitting the monthly rent to the opposite parties who have been all along enjoying the usufruct in respect thereof and this is their separate share held and enjoyed under mutual arrangement.
4. During the trial the appellants/defendants filed documents, including a general power of Attorney (Annexure-I) executed by the opposite parties/plaintiffs in favour of one Sunil Ranjan Sen, Advocate, giving power to maintain, power to lease out the property, mortgage, sale etc. and filed also a copy of the letter (Annexure II) dated 2-11-1987 said to have been written by plaintiff No. 1 to plaintiff No. 3 in respect of plaintiff No. 3s share in the property and some other documents, such as, challans, municipal receipts, MO receipts etc. The appellants made out a distinct case for themselves in the memo of appeal in this first appeal preferred by them, but the claim in same posture which can be decided by this Court under the same issued framed by the trial Court.
5. The main issue for consideration in this appeal is whether the appellants are entitled to
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