Meso Jamir v. Okotso Village — 1975 DIGILAW 21 (GAU)

Judgement This is an application in revision under Rule 34 of the Rules for Administration of Justice and Police in the Naga Hills District, 1937 (hereinafter called the Rules) and is directed against the order dated 22-8-1973 passed by the Additional Deputy Commissioner, Mokokchung, in Civil Appeal No. 5 of 1972. 2. The petitioners belong to the Jamir clan of the Ao tribe of Mangmetong village in the district of Mokokchung of the State of Nagaland represented by Shri Meso Jamir and the opposite parties are members of the Lotha tribe of Okotso village in the district of Mokokchung in the State of Nagaland represented by the Gaon Buras of the village. The dispute relates to a piece of land consisting of some Jhum Khetis located between the two villages named above, namely, Okatso and Mangmetong. The dispute is a very long standing one. It was settled in 1896 by Mr. Shuttleworth, who set a boundary between the two villages. The dispute again having arisen, the matter was finally settled by Mr. W. Dundas, the then Sub-Divisional Officer, Mokokchung, in 1907 in Case No. 212 of 1907. The dispute again cropped up in 1960 when some people of the petitioner village claimed right and ownership over some portion of the land in question. The Assistant Commissioner No. 2 Mokokchung, by his order dated 9-5-1961 restrained both the parties from cultivating the land. In 1965 Shri N.I. Jamir, the then Additional Deputy Commissioner, Mokokchung, by his order dated 26-3-1965 upheld the order of Mr. W. Dundas and directed demarcation of the boundary on the ground. In 1972 the petitioners wanted to till a portion of the disputed land where upon the respondent objected. On 17-5-1972 the S. D. O. (Civil), Mokokchung, visited the disputed area. He was accompanied by the Superintendent of Police, Mokokchung, P. A. to Deputy Commissioner, Dobhasis of Mokokchung and Sungro and Gaon Buras of Mangmetong and Okotsu, and in their presence he made a spot verification of the matter with the help of the map prepared by Mr. W. Dundas, aforesaid, which was in Case No. 212 of 1907 and he demarcated the boundary between the two villages by his order dated 17-5-1972. This order was appealed against before the Additional Deputey Commissioner, Mokokchung who passed this impugned order in Civil Appeal No. 5/72. 3. W. Dundas, aforesaid, which was in Case No. 212 of 1907 and he demarcated the boundary between the two villages by his order dated 17-5-1972. This order was appealed against before the Additional Deputey Commissioner, Mokokchung who passed this impugned order in Civil Appeal No. 5/72. 3. The learned Additional Deputy Commissioner took evidence on the matter and also made a spot verification on 28-4-1973. He found that the disputed land fell in village Okotso (Opposite Party) in terms of the decree made by W. Dundas in 1907, but 8 persons of the petitioner village were in occupation of it in spite of the orders of injunction passed by the Court restraining both the parties from occupying the land. He levied a fine of Rs. 50/- each on those 8 persons. He found that the disputed land fell to the village of the opposite party, but it was unlawfully occupied by the petitioner-party and passed his order accordingly after setting aside the order of the Sub-Divisional Officer, Mokokchung, passed on 17-5-1972. This order has been challenged by the present application. 4. Shri R.B. Singh, learned counsel appearing for the petitioner, first submits that Shri S.B. Chettri, Additional Deputy Commissioner, in his impugned order has gone behind the decree by hearing an appeal against the order dated 17-5-1972 passed in an execution case by the Sub-Divisional Officer. It is admitted by both the parties that the correct decree in the long standing dispute with regard to the land in question was the decree made by Mr. W. Dundas in 1907, and that this decree should be respected. It has also been found by all the officers concerned, namely, Shri N.I. Jamir, Additional Deputy Commissioner in his order dated 26-3-1965, Shri S. Lima Aier, Sub-Divisional Officer (Civil) in his order dated 17-5-1972 and Shri S.B. Chettri, Additional Deputy Commissioner in his impugned order, that the decree passed by Mr. W. Dundas was the correct decree and accepted by both the contending parties. The subsequent disputes, therefore, before the Additional Deputy Commissioner in 1965, the Sub-Divisional Officer (Civil) in 1972 and the Additional Deputy Commissioner in 1973 were all by way of execution or implementation of the decree made by W. Dundas. It is also the contention of the petitioner that the case before the Sub-Divisional Officer was by way of execution of the decree passed by W. Dundas. It is also the contention of the petitioner that the case before the Sub-Divisional Officer was by way of execution of the decree passed by W. Dundas. When this is the accepted position, an order passed in an execution case by the Sub-Divisional Officer is appealable to the Deputy Commissioner under Rule 34 of the Rules, and the appeal may be disposed of by the Additional Deputy Commissioner. It is not the contention of learned counsel that the appeal before the Additional Deputy Commissioner was incompetent, but his contention is that the Additional Deputy Commissioner went behind the decree. Learned counsel is not correct in his submission, for in fact the learned Additional Deputy Commissioner has very categorically stated in his order as follows : "There cannot be any appeal against the order passed by Mr. W. Dundas, SDO, Mokokchung in Case No. 212 of 1907 at this stage as it is barred by limitation and the matter or matters already settled by Mr. W. Dundas in the said case cannot be re-opened at this stage ............ The present appeal is only against the demarcation made by SDO (C), Mokokchung, on 17-5-1972 against which an appeal was filed by the present appellants in time as prescribed under Rule 34 of the Rules for the Administration of Justice and Police in the Naga Hills District." The contention of learned counsel, therefore, that Shri Chettri, the Additional Deputy Commissioner, went behind the decree has no substance. 5. The 2nd submission of learned counsel is that the Additional Deputy Commissioner had no power to take additional evidence without sufficient and specific grounds. Counsel has further submitted that Shri Chettri has not considered the evidence already on record and that he tried the case de novo. 6. Under Order 41, Rule 27, Code of Civil Procedure, the appellate Court has power to take additional evidence. The Civil Procedure Code does not apply to Nagaland. But under Rule 35 of the Rules, the Court of the Deputy Commissioner and his Assistant, as well as the High Court, "shall be guided by the spirit, but not bound by the letter of the Code of Civil Procedure". An appellate Court in Nagaland, therefore, has power to take additional evidence, if the justice of a case demands, either suo motu or at the instance of a party or parties. An appellate Court in Nagaland, therefore, has power to take additional evidence, if the justice of a case demands, either suo motu or at the instance of a party or parties. In the instant case additional evidence was adduced by both the parties and was accepted by the Court. No illegality has been committed by the learned Additional Deputy Commissioner in this regard. It is not correct to say that the learned Additional Deputy Commissioner has not considered the evidence already on record. As it will presently appear, he had considered the evidence, particularly the documentary evidence including the sketch map, that was on record. The second submission of learned counsel also has no substance. 7. The next submission of learned counsel is that "the spot verification of the learned Additional Deputy Commissioner cannot be substituted for evidence on record" and that his order has been vitiated as no record of his inspection has been kept in the file. Order 18 Rule 18 of the Code of Civil Procedure gives power to a court at any stage to inspect any property or thing concerning which any question may arise. In the instant case the learned Additional Deputy Commissioner made the spot verification 28-4-1973 as the appellants before him (the opposite parties herein) contended that the demarcation of the boundary by the Sub-Divisional Officer was wrong and not in terms of the decree of Mr. W. Dundas. He made the spot verification with the representatives of both the parties, some Dobhasis from Mokokchung and the local Supervisor Kanungo. He carried with him the records, the sketch map and the orders passed by the Deputy Commissioner in Case No. 212 of 1907 when he made the spot verification. On the spot verification he found that the demarcation of the boundary by the Sub-Divisional Officer was wrong and not in consonance with the decree of Mr. Dundas. There is no provision in the Civil Procedure Code or in the Rules for making a memorandum of local inspection. If the officer or Court deems it necessary, he or it may take note of the actual facts found in the local inspection. Dundas. There is no provision in the Civil Procedure Code or in the Rules for making a memorandum of local inspection. If the officer or Court deems it necessary, he or it may take note of the actual facts found in the local inspection. In the instant case a memorandum of spot verification was not deemed necessary as the Additional Deputy Commissioner took all the necessary records with him and with their help and the help of the Supervisor Kanungo, he verified whether the demarcation of the boundary by the Sub-divisional Officer was correct, and he found it was not. The submission of learned counsel that the learned Additional Deputy Commissioner substituted his verification for the evidence on record, has no substance and a memorandum of the spot verification also was not necessary in the present case. 8. The next submission of learned counsel is that the appeal before the Additional Deputy Commissioner was barred by res judicata in view of the order passed by the Additional Deputy Commissioner Mokokchung, on 26-3-1965 in this regard. The Additional Deputy Commissioner (Shri N.I. Jamir) merely passed an order directing demarcation of the boundary in terms of the decree passed by Mr. W. Dundas and it appears that the order was carried out by the Sub-divisional Officer, who made the demarcation by his order dated 17-5-1972. The learned Additional Deputy Commissioner in his impugned order examined whether the demarcation by the Sub-divisional Officer in terms of the direction of the earlier Additional Deputy Commissioner was correct. The question of res judicata does not arise in the present case. 9. The last submission of learned counsel is that the order of the Additional Deputy Commissioner imposing penalty of Rupees 50/- each against 8 persons named in his order is illegal. Learned counsel is on a firmer ground on this point. The imposition of the penalty is for the alleged offence of violations of prohibitory orders passed by Court. No notice was issued to the persons penalised to show cause as to why the penalty should not be levied; nor were they charged with the offence. No procedure of law was followed by the learned Additional Deputy Commissioner. The order of penalty, therefore, is not sustainable in law. His order levying the penalty of Rs. 50/- each against the 8 persons named in his order, totalling Rs. 400/-, is set aside. 10. No procedure of law was followed by the learned Additional Deputy Commissioner. The order of penalty, therefore, is not sustainable in law. His order levying the penalty of Rs. 50/- each against the 8 persons named in his order, totalling Rs. 400/-, is set aside. 10. The application is partly allowed. I, however, make no order as to costs. Application partly allowed.