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2002 DIGILAW 324 (GAU)

Diezephe Village v. Tsithrongse Village

2002-08-05

B.LAMARE

body2002
B. LAMARE, J.— Heard Mr K. Meruno, learned counsel for the appellant and Mr. N.K. Luikhem learned counsel for the respondent. 2. By this appeal under the provisions of Rule 29 of the Rules for Administration of Justice and Police (3rd Amendment) Act of 1984 read with Section 96 of the Code of Civil Procedure, the appellant has assailed the order dated 6.7.99 passed by the learned Addl. Deputy Commissioner (Judicial) Dimapur in Eviction Suit No. I/ 93. 3. The case in brief is that an eviction suit No. 1/93 was filed by the respondent/ plaintiff village against 6 persons of Diezephe Village, Dimapur (appellant village). In the said suit the plaintiff/ respondent has prayed for: 1) A decree of eviction of the defendants from the suit land; 2) Delivery of physical possession; 3) Perpetual injunction; 4) Cost of the suit. The suit was contested by the defendants by filing written statement. On the pleadings of the parties, the following issues were framed: "Issues" 1. Whether there is cause of action? 2. Whether the suit is triable by customary Court according to Naga Customary law and practice: And whether this Court has jurisdiction to try the present suit? 3. 'Whether the suit is liable to be dismissed for non-joinder and mis-joinder of parties? 4. Whether the plaintiff village is a Govt recognised village having its own demarcated boundaries? 5. Whether the plaintiff or the defendants are having bonafide rights over the suit land? 6. Whether the defendants are expanding their encroachment on the plaintiffs land? 7. Whether the suit is barred by the law? 8. Whether the defendants are liable to be evicted from the suit land? 9. To what relief or reliefs the parties are entitled to." 4. The trial Court examined 7 witnesses from plaintiffs side and 8 witnesses from defendant's side. After completion of recording of evidence and hearing of the parties the impugned order was passed with the following order: "Accordingly I hereby decree that the suit land measuring about 2 (two) Puras which is bounded in the North: Land of Tsithrongse village, East: land of Tsithrongse village, South: P.W.D. Road and West: Tsithrongse village approach road which at present is vacant be delivered to the plaintiff. And the defendants are perpetually injuncted from any interference with the above land, which is to mean that the defendants or anybody shall not disturbed the plaintiff of their possession and rights of ownership of the suit land and in other words the defendants shall not cross the P.W.D. Road. Accordingly the suit land is hereby delivered to the plaintiff for immediate possession." 5. Being aggrieved by the said impugned judgment and order passed by the learned trial Court, .the appellant has preferred the present appeal. Mr Luikhem, learned counsel for the respondent at the very outset raised the question that the appellant village were not the party to the eviction suit and as such they have no right to prefer this appeal as they are not bound by the impugned judgment and order of the learned trial Court. In support of this contention, Mr Luikhem draws the attention of this Court to the case of State of Punjab (Now Haryana) and others, appellants-Vs-Amar Singh and Anr. respondents reported in (1974)2 SCC 70 . The learned counsel draws the attention of this Court to paragraph 29 of the said judgment in which the Apex Court has held asunder:- "An order like Annexure-A ordinarily binds the parties only and here the State which is the appellant is seriously prejudiced by that order but is not a party to it. Therefore, it cannot bind the State proprio vigore. It was argued by Shri Dhingra that the State could have moved by way of appeal or review and got the order set aside if there was a ground and that not having done so it was bound by the order. As a matter of fact, the State, which is not a party to the proceedings, does not have a right of appeal. The ordinary rule is that only a party to a suit adversely affected by the decree or any of his representatives-in-interest may file an appeal. Under such circumstances a person who is not a party may prefer an appeal with the leave of the appellate Court if he would be prejudicially affected by the judgment and if it would be binding on him as res judicata under the Explanation 6 to Section 11." 6. Section 96 of the Code of Civil Procedure (CPC) provides for an appeal from original decree. Section 96 of the Code of Civil Procedure (CPC) provides for an appeal from original decree. So also Order XLE of Code of Civil Procedure provides for the form of appeal. However, it must be kept in mind that the CPC is applicable only in spirit in the State of Nagaland. In other-words the procedure of justice delivery system in the State is governed by the Rules for Administration of Justice and Police in ttagaland, 1937 which is amended by the Rules for Adrninistration of Justice and Police in Nagaland (3rd Amendment) Act, 1984 and also the principle of natural justice. 7. In the instant case the appellant being aggrieved by the impugned judgment and order of the trial Court has approached this Court under the said amended Rules of 1984. The question therefore to be seen is whether the appellant's village has been affected by that impugned judgment and order and whether they have filed this appeal by way of abundant caution to see that the principle of res-judicata as provided in Explanation 6 to Section 11 of the Code of Civil Procedure does not bar them from exerting their rights. 8. To begin with, this appeal was filed on 4.11.99 and the same was admitted and impugned judgment and order was stayed by this Court. Being aggrieved by the said order dated 4.1.1.99 passed by this Court the respondent village has approached this Court in Misc. Case No. 63(K)2000. In the said misc. case, the appellant village is made as respondent and by order dated 26.9.2000 in the said misc. case, this Court has observed that "in view of this fact finding report that at least, rightly or wrongly the villagers of the petitioner village have raised some crops, it would be fair that they are permitted to harvest the crops raised by them without any hindrance from the other side." After the said order dated 26.9.200Q passed by this Court in Misc Case No. 63(K)2000, the respondent village has filed another Misc. Case No. 35(K.)2001. Inthe said misc. case also the appellant village was made the opp.-party. In the said petition the complaint is against the appellant village regarding their encroachment into the land in suit. From the above order dated 4.11.99 passed by this Court and subsequent misc. petitions filed by the respondent in the said Misc. Case-No. 63(K)2000 and Misc. Case No. 35(K.)2001. Inthe said misc. case also the appellant village was made the opp.-party. In the said petition the complaint is against the appellant village regarding their encroachment into the land in suit. From the above order dated 4.11.99 passed by this Court and subsequent misc. petitions filed by the respondent in the said Misc. Case-No. 63(K)2000 and Misc. Case No. 35(K)2001 filed by the respondent village against the appellant village and also the complaint made by respondent village against the appellant village it shows that the appellant's village has been very much affected by the impugned judgment and order of the trial Court. The appeal was admitted and no objection was raised by the respondent at any stage regarding the maintainability of the appeal. Therefore the appeal is deemed to have been filed with the permission of this Court as the appellant village was very much affected by the order. 9. From the facts and circumstances of this case and the law laid down by the Apex Court in the case of the State of Punjab (now Haryana) and Ors. (supra), it can safely be concluded that although the ordinary rule is that only a party to the suit adversely affected by the decree may file an appeal, but under certain circumstances the person who is not a party to the suit may file an appeal if he is prejudicially affected by the judgment and if the said judgment is likely to have a binding on him as res-judicata. Even if taken the spirit of C.P.C. and the procedure thereunder under Section 96 C.P.C. an appeal shall lie by any person aggrieved by the impugned judgment and order. More so, when it is a settled law that any party aggrieved by the order which is appealable can file an appeal. 10. Therefore, in view of the above position and to meet the ends of justice, I am of the considered view that the contention of the learned counsel for the appellant that only parties to the suit have a right to appeal cannot be accepted. Needless to say that for the reasons enumerated, the principles of natural justice requires that when a miscarriage of justice is caused to a party the Court is bound to interfere for the ends of justice. 11. Needless to say that for the reasons enumerated, the principles of natural justice requires that when a miscarriage of justice is caused to a party the Court is bound to interfere for the ends of justice. 11. Coming to the merits of the case, it is noticed that the suit is an eviction suit and from the issues framed, issue No. 5 relates to the declaration of rights and title of the parties over the suit land. The learned trial Court while deciding the issues has virtually decided the entire suit regarding the right and title of the parties over the suit land which is in nature of deciding a suit for declaration of right and title. The other issues in the case viz., issues 3,6 and 7 are also the issues which can only be decided in a suit for declaration of right and title. 12. Further from the perusal of the impugned judgment and order it is noticed that the evidence of the witnesses were not discussed although 7 witnesses were examined by the plaintiff and 8 witnesses were examined by the defendant. None of the evidence of the witnesses, except PW-1 was discussed by the trial Court. The judgment and order shows that the sarne was rendered under the presumption and assumption of the Court without considering the evidence on merit. No documents were also considered by the learned trial Court nor exhibited in the case. The above facts definitely pointed to the miscarriage of justice by a judgment passed on presumption and assumption of the Court. 13. As already observed, this Court while sitting as a first appellate Court has to examine the matter in all perspective as examined by the trial Court. Therefore, by the impugned judgment and order miscarriage of justice were Caused to the parties. The principle of natural justice requires that the matter be decided in all perspective and by affording opportunity to the appellant village to be heard for the ends of justice. 14. For the aforesaid reasons the impugned judgment and order dated 6.7.1999 passed by the learned-Addl. Deputy Commissioner (Judicial) Dimapur in eviction Suit No. 1/93 is hereby set aside and quashed and the appeal is allowed. 15. The case is remanded to the learned Court of Addl. Deputy Commissioner (Judicial) Drmapur for fresh trial. 14. For the aforesaid reasons the impugned judgment and order dated 6.7.1999 passed by the learned-Addl. Deputy Commissioner (Judicial) Dimapur in eviction Suit No. 1/93 is hereby set aside and quashed and the appeal is allowed. 15. The case is remanded to the learned Court of Addl. Deputy Commissioner (Judicial) Drmapur for fresh trial. As apparent from the records, it shows that the title of the appellant and respondent village over the suit land is involved and as such the same may not be decided in the eviction suit. This appeal is accordingly disposed of.