Page No.# 1/11 GAHC030004772025 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP/4/2025 Sakawrtuichhun Local Council, R/b its Chairman Sakawrtuichhun VERSUS The State of Mizoram and 5 Ors. R/b Chief Secretary to the Govt. of Mizoram, Aizawl 2:The Secretary to the Govt. of Mizoram 3:The Director General of Police 4:The Principal 5:The Secretary to the Govt. of Mizoram 6:The Directo Advocate for the Petitioner : Mr A.R. Malhotra Advocate for the Respondent : Ms Lalnunhlui, G.A. for R1-R6 B E F O R E HON’BLE MR. JUSTICE RAJESH MAZUMDAR ORDER 25.09.2026 Heard Mr. A.R. Malhotra, learned counsel for the petitioner. Also heard Ms. Page No.# 2/11 Lalnunhlui, learned Govt. Advocate for respondent Nos. 1 to 6. 2. The present Civil Revision Petition has been preferred being aggrieved by the Order dated 29.04.2025 passed by the learned Civil Judge (Senior Division)- II, Aizawl District, Aizawl in Execution Case No. 34/2020. 3. The learned counsel for the petitioner submitted that the petitioner had filed Civil Suit No. 19/2004 before the Court of the learned Civil Judge, Aizawl, which was contested by the defendants. In the suit, a prayer was made for declaring that the Sakawrtuichhun Phulsei Ram falls within the jurisdiction and administration of the Sakawrtuichhun Village Council Area and that it had been illegally encroached upon by the defendants for the purposes of PTC, Lungverh area. Further, a declaration was sought that DPL Pass No. 49/85, insofar as it encroached upon Phulsei and Ramkhek Ram of Sakawrtuichhun Village Council Area, is illegal, null, and void. 4. In the detailed Judgment & Order passed by the learned Civil Judge, Aizawl on 03.09.2009, a finding was arrived at that the sole witness for the defendants stated that the defendants were in occupation of the land covered by DPL Pass No. 49/85 and had not encroached upon the land of the plaintiff, and that the notification dated 23.06.2004 had not altered or cancelled the land covered by DPL Pass No. 49/85. Page No.# 3/11 5. Further, the Court had no hesitation in concluding that Sakawrtuichhun Phulsei Ram and Sakawrtuichhun Ramkhek Ram fell within the jurisdiction and administration of the plaintiff. Therefore, Issue No. 3, namely whether the aforesaid Phulsei Ram and Ramkhek Ram fell within the jurisdiction and administration of the plaintiff as per the notification dated 23.06.2004 was decided in favor of the plaintiff. While deciding Issue No. 4, the learned Court decreed the suit in favor of the plaintiff. Defendant Nos. 5 & 6 (namely the Secretary to the Govt. of Mizoram, Land Revenue & Settlement Department, and the Director, Land Revenue & Settlement Department, Aizawl) were directed to conduct a spot verification of DPL Pass No. 49/85 to verify whether it encroaches upon Sakawrtuichhun Phulsei Ram and Sakawrtuichhun Ramkhek Ram, in the presence of the plaintiff and defendant Nos. 1 to 4. 6. It was provided that if the spot verification revealed that DPL Pass No. 49/85 had encroached upon Sakawrtuichhun Phulsei Ram and Sakawrtuichhun Ramkhek Ram, then defendant Nos. 5 & 6 should alter the boundary description of DPL Pass No. 49/85 to the extent of such encroachment. The whole exercise was required to be completed within three months from the date of the order. 7. When no further steps were taken by defendant Nos. 5 & 6, the petitioners approached the appropriate Court for execution of the order passed in the title Page No.# 4/11 suit. By an Order dated 29.04.2025 passed in Execution Case No. 34/2020 initiated by the petitioners, the learned Executing Court recorded as follows: “4. Heard both parties and also perused local investigation report submitted by the Commissioner wherein the Commissioner report stated that the land allotted to the Home Department, Government of Mizoram and their current occupation by the 5th IR Battalion appears to be legal and proper in the absence of any evidence to the contrary. In conclusion, due to the inability to establish the boundaries or the extent of "Sakawrtuichhun Phulsei Ram" and "Sakawrtuichhun Ramkhek Ram", it is not possible to ascertain whether any encroachment has occurred by the land allocated under DPL Pass No. 49/1985. Despite diligent attempts to locate these boundaries, no concrete information was obtained. 5. On hearing of the Ld Counsels for both parties and on careful perusal of the Judgment and Decree dated 03.09.2009 as well as local investigation report submitted by the Commissioner appointed by this court, this court finds no concrete conclusion as to whether the DPL Pass No. 49/1985 had encroached Sakawrtuichhun Phulsei Ram and Sakawrtuichhun Ramkhek Ram or not on the ground that the Decree itself stated under paragraph no. 9 issue no. 4 in the 6th to gth line that "the Defendant No 5 and 6 are directed to conduct spot verification of the pass no. DPL - 49/85 to verify whether it encroaches upon the Sakawrtuichhun Phulsei Ram and Sakawrtuichhun Ramkhek Ram in the presence of the Plaintiff and the defendant No.4. 6. Consequently, the Commissioner appointed by this court also stated in his local investigation report that "In conclusion, due to the inability to establish the boundaries or the extent of "Sakawrtuichhun Phulsei Ram" and "Sakawrtuichhun Ramkhek Ram", it is not possible to ascertain whether any encroachment has occurred by the land allocated under DPL Pass No. 49/1985. Despite diligent attempts to locate these boundaries, no concrete information was obtained" 7. In the case of Periyammal (dead thr. Lrs) & Ors vs. V. Rajamani & Ors the Hon'ble Supreme Court of India has directed all the High Courts across the country on 06.03.2025 to call for necessary information from their respective judiciary as regards pendency of the execution petitions so as to ensure that the execution petitions pending in various courts shall be decided and disposed of within a period of six months without fail. Page No.# 5/11 8. In view of the above Hon'ble Supreme Court of India direction, execution petitions shall be decided and disposed of within a period of six months without fail. The present case has been filed on 11.03.2020 for execution of decree passed by Senior Civil Judge on 03.09.2009 in Civil Suit No. 19 of 2004 wherein the Judgment debtors No. 5 and 6 were directed to conduct spot verification of the disputed land and the same could not be complied with till date. 9. In the result, this court have no other option but to complied with the above Hon'ble Supreme Court direction and as per local investigation report submitted by Commissioner it is not possible to ascertain whether any encroachment has occurred by the land allocated under DPL Pass No. 49/1985 and therefore, it is not possible to execute Decree dated 03.09.2009 in Civil Suit No. 19/2004 and as such the instant Execution Case No. 34/2020 is dismissed and disposed of.” 8. The learned counsel for the petitioner submitted that the petitioners are aggrieved by the fact that prior to accepting the Commissioner's report dated 24.03.2025, they were not given an opportunity either to contest the report or to cross-examine the Commissioner regarding his findings. According to learned counsel, this caused serious prejudice as the Execution Case was closed as a consequence. He further submitted that based on a misinterpretation of the directions of the Hon’ble Supreme Court, the Executing Court took it upon itself to close the execution proceedings by remarking that it was not possible to execute the decree. He contended that the direction of the Hon’ble Supreme Court in Periyammal & Ors. Vs V. Rajamani & Ors was to bring execution petitions to a logical conclusion, not to abandon attempts to execute orders passed in civil proceedings. Page No.# 6/11 9. Accordingly, he submitted that the Order dated 29.04.2025 be set aside and the matter be remanded back to the Executing Court to grant a fair opportunity of hearing to the petitioners, allowing them to challenge the Commissioner's report dated 24.03.2025 and to cross-examine the Commissioner before the report is taken into consideration. 10. Ms. Lalnunhlui, learned Govt. Advocate for respondent Nos. 1 to 6, placed reliance on the judgment of the Hon’ble Apex Court in Misrilal Ramratan & Ors. Vs Mansukhlal & Ors, reported in (1995) Supp (4) SCC 600, where at paragraph 3, the Hon’ble Apex Court held as follows: “3. Shri Sundaravaradan, learned Senior Counsel appearing for the appellants has contended that the approach of the High Court is manifestly illegal. We find no force in the contention. It is now settled law that the report of the Commissioner is part of the record and that therefore the report cannot be overlooked or rejected on spacious plea of non-examination of the Commissioner as a witness since it is part of the record of the case. We have gone through the report submitted by Shri Sundaravaradan and the High Court is clearly right in its conclusion that the age of the building as per the sanctioned plan of 1928 is 70 years and the building requires demolition. In fact, it is undisputed that the landlord obtained sanction from the Municipal Corporation for demolition of the building. What was lacking thereafter was that he did not obtain sanction for reconstruction. This is one of the grounds for rejecting the application for eviction. Undertaking was given that within six months from the date of the construction, he would obtain necessary sanction. Under these circumstances, we find that the High Court is right in reaching the conclusion that the landlord has established the need for demolition of the building for reconstruction as envisaged under Section 14(1)(b) of the Act. The appeals are dismissed. However three months' time is granted to the appellants for vacating the premises with usual undertaking. The undertaking shall be filed within one month from today.” Page No.# 7/11 11. She has further placed reliance on the case of Venkatesha & Anr Vs K.M. Venkatamuniyappa & Ors reported in (2026) SCC OnLine SC 1331, where at paragraph Nos. 36 to 41, the Hon’ble Apex Court had held as follows: “36. Even as the very preliminary step, the plaintiff's title over Sy. No. 162 is nebulous. A plaintiff seeking declaration of title must succeed on the strength of his own case and not on the perceived weakness of the defence. It is trite that title cannot rest on surmises or probabilities. The burden squarely rested on the plaintiff to establish that the property conveyed under Sale Deeds I, II and III, though described throughout as Sy. No. 1/4, was in reality Sy. No. 162. Such burden remained undischarged.” 37. The conduct of the plaintiff is equally relevant. Although the rectification deed is of the year 1997, admittedly no effort was made to have the revenue entries changed in his favour. Even until the institution of the suit in 2007, the revenue entries consistently stood in the name of Thimmadasappa and, thereafter, in the names of the appellants. While it is trite that revenue entries themselves do not confer title, they may be seen as evidence regarding possession. A total absence of any contemporaneous assertion of right by the plaintiff over Sy. No. 162 for nearly a decade after the alleged rectification deed is a circumstance which the first appellate court failed to accord due weight. 38. The infirmities canvassed in the preceding discussion are not mere tenuous errors in the appreciation of evidence. They unravel a more fundamental jurisdictional error committed by the High Court while exercising powers under Section 100 of the CPC. Upon a threadbare consideration of the impugned judgment, the findings recorded by the High Court, in our considered opinion, are rendered perverse for the reasons ad seriatim assigned hereafter. 39. First, the substantial question of law framed at the threshold required the High Court to examine whether the judgment of the first appellate court, reversing the well-reasoned findings of the trial court, did not suffer from any perversity. However, instead of testing the legality of the reversal, the High Court too proceeded to re-affirm findings founded upon assumptions and conjectures. In doing so, the High Court overlooked that the first appellate court had travelled beyond the pleadings and had discarded material admissions without assigning cogent reasons. The enquiry ought to have been whether the first appellate court had legally dislodged the trial court's findings on the identity of the property; the validity of the rectification deed; the plaintiff's Page No.# 8/11 admissions and proof of possession. There is not an iota of discussion in the impugned judgment addressing this enquiry. Rather, while upholding the finding that the property conveyed under Sale Deed I, the High Court embarked upon an independent factual enquiry and supplied fresh reasons to buttress the findings. In doing so, it brought an altogether new factual premise into picture that there had been an interchange of the northern and southern boundaries, although no such case was ever pleaded or proved by the plaintiff at any point of time. 40. Secondly, the High Court also introduced an entirely new legal edifice by invoking Section 43 of the ToP Act, although the plaintiff never pleaded the ingredients thereof nor premised any of his reliefs on the said provision. A fortiori, neither the trial court nor the first appellate court had anchored their conclusions on the said provision. A conclusion based on a contention never advanced, in our considered opinion, renders itself perverse. 41. Thirdly, the High Court failed to deal with the material admissions made by PW-1, particularly his admission that both Survey No. 1/4 and Survey No. 162 were distinct survey numbers and that he had inspected the title documents before purchasing the property. These admissions negated the very sub-stratum of the plaintiff's case and could not have been ignored without recording reasons.” 12. She has accordingly submits that the Civil Revision Petition does not require any further consideration by this Court. 13. In the case of Misrilal Ramratan & Ors. (supra), the Hon’ble Apex Court was dealing with a matter where the High Court considered a report on record regarding whether a building needed to be demolished or repaired. In those circumstances, the Apex Court held that a Commissioner's report dated 24.03.2020, being part of the record, could not be overlooked or rejected on the specious plea of non-examination of the Commissioner as a witness. Page No.# 9/11 14. I have noticed that the prayer of the petitioner in this Revision Petition is not to overlook the Commissioner's report dated 24.03.2025, but rather for an opportunity to contest its veracity by filing objections and cross-examining the Commissioner. The petitioners have not objected to the consideration of the report, subject to being allowed an opportunity to challenge it. In these circumstances, I do not find that the judgment in Misrilal Ramratan & Ors. (supra) comes to the aid of the respondents. 15. Insofar as the judgment in Venkatesha & Anr (supra) is concerned, the Hon’ble Apex Court was dealing with a case where the High Court, in exercise of powers under Section 100 of the CPC, had reversed the findings of a trial court. In the present case, the petition has been filed under Section 115 of the CPC read with Article 227 of the Constitution, and this Court is not adjudicating an appeal under Section 100 of the CPC. Be that as it may, the cited judgment does not deal with the requirement of providing a fair hearing to the petitioners before relying on the Commissioner's report dated 24.03.2025, which was not made available to the parties in the Execution Case. 16. In view of the above, and keeping in mind that the petitioners' grievance would be redressed if they are allowed an opportunity to contest the report, I am of the considered opinion that the present Civil Revision Petition deserves to Page No.# 10/11 be allowed. The impugned Order dated 29.04.2025 passed by the learned Civil Judge (Senior Division)-II, Aizawl District, Aizawl in Execution Case No. 34/2020 is hereby set aside. 17. The matter is remanded back to the learned Executing Court to conduct proceedings afresh from the stage of receipt of the Commissioner's report dated 24.03.2025. The Executing Court shall afford the petitioners an opportunity to file objections and, if necessary, lead evidence and cross-examine the Commissioner. Upon completion of this process, the learned Executing Court shall decide whether to accept or reject the Commissioner's report dated 24.03.2025 and proceed in accordance with law. 18. Needless to say that by setting aside the impugned order, this Court has neither interfered with the substance of the Commissioner's report dated 24.03.2025 nor issued any direction not to consider it. The present Civil Revision Petition has been allowed solely to afford the petitioners a fair opportunity to contest the findings of the Commissioner's report dated 24.03.2025. 19. Accordingly, the Civil Revision Petition stands allowed and disposed of. JUDGE Page No.# 11/11 Comparing Assistant