JUDGMENT S.K. Kar, J. 1. This petition under Clause 3 of the Assam High Court (Jurisdiction over District Council Courts) Order, 1954 is preferred against the order dated 18-7-2000 passed by the District Council Court, Aizawl in Civil Appeal No. 17 of 1998. 2. The facts, in brief, (as per Memo of appeal) are as follows:-- The appellant Smt. Germanthangi and the respondent No. 1 were married on 15-3-1962 as per the Mizo Customary Law and out of the wedlock two sons and five daughters were born (subsequently impleaded persons, Respondents Nos. 2 and 3 are the two sons). The appellant filed a case/complaint on 11-3-98 before the Magistrate/Additional Sub-District Council Court stating that the Respondent No. 1 (her husband) had deserted her on 14-2-98 by way of 'abandonment' as per the Mizo Customary Law, and started living separately with one Smt. Doneihchuali. She prayed for the distribution of the properties in view of her desertion and the complaint (suit) was registered as Misc. Case No. 6/98. 3. The case was contested by her husband pleading that he had not married Smt. Doneihchuali but has accepted her as his mistress temporarily without divorcing the appellant and accordingly contended that no cause of action has arisen for distribution of the property. 4. The learned trial Court, on the basis of the pleadings, framed five issues and answered them holding that there is a case of 'abandonment' of wife and that the property belonging to the husband and wife were jointly acquired by them during the period of their conjugal life and finally passed a decree on 7-10-1998 distributing the property, allotting major share to the defendant. 5. Being aggrieved by the aforesaid judgment and decree of the Additional Sub-District Council Court (trial Court) Civil Appeal No. 17 of 1998 was preferred by the respondent herein before the District Council Court. Learned appellate District Council Court passed an order reversing the findings of the trial Court and accepting the pleas of the Respondent No. 1 by its judgment dated 18-7-2000. The appellate Court held that there was no case of 'abandonment' and jurisdiction was wrongly exercised by the Subordinate District Council Court because the plaintiff/complainant is duty bound to approach the Court of lowest grade, i.e.. Village Court but she straightway agitated next higher Court of Additional Sub-District Council. 6. The appellate Court held that there was no case of 'abandonment' and jurisdiction was wrongly exercised by the Subordinate District Council Court because the plaintiff/complainant is duty bound to approach the Court of lowest grade, i.e.. Village Court but she straightway agitated next higher Court of Additional Sub-District Council. 6. I have heard learned counsel appearing on both sides, perused the impugned judgments and orders passed by the trial Court and the appellate Court and also considered the materials in the case records (which was called for in connection with this appeal) of the Court below. It appears that a counter-affidavit was presented by the Respondents Nos. 2 and 3 contending, inter-alia, that in spite of their best efforts appellant refused to live with her husband and children but preferred to approach the Court claiming properties without making Respondents Nos. 2 and 3 as parties and learned Court distributed properties without affording any opportunity to the Respondents Nos. 2 and 3 for which the judgment passed in Misc. Case No. 6/98 is not binding on these Respondents Nos. 2 and 3. That Respondent No. 1 purchased land on 5-3-96 at a price of Rs. 43,000/- on the strength of the sale deed and the same is being occupied by the Respondent No. 3. That all the properties mentioned in the impugned Judgment dated 7-10-98 were acquired by the Respondent No. 1 from his own earnings and he being the head of the family distributed some of moveable properties to his son and executed gift-deed on the same day. That main building at Champhai Venglai and Village field of wet rice cultivation at Midumphai were gifted to the Respondent No. 2 and another plot of land including building standing thereupon at Village Champhai Venglai has been kept for the Respondent No. 3 in supersession of the will made on 25-1-97 and accordingly Respondents Nos. 2 and 3 are occupying the land so given to them and accordingly the order of the trial Court distributing the properties was not legal and binding on them. That it is true that the Respondent No. 1 was having an affair with another woman and is living with her but the woman was kept by him as his mistress and he has not divorced the appellant. That all attempts to re-unite the families were unsuccessful. That it is true that the Respondent No. 1 was having an affair with another woman and is living with her but the woman was kept by him as his mistress and he has not divorced the appellant. That all attempts to re-unite the families were unsuccessful. That the parties being local tribes the case (suit) should have been instituted in the Village Council Court above which is the Sub-District Council Court as appellate forum and as such Sub-District Council Court has no original Jurisdiction to try the suit at the first instance. Accordingly, the suit is without merit and is liable to be dismissed. 7. Overlooking for the time being the facts given in the counter-affidavit, the admissibility of which is doubtful, filed by the Respondents I find that this is an appeal intended to challenge the judgment and order passed by the District Council Court reversing the finding of the Sub-District Council Court (trial Court). In law an appellate Court can differ with the findings of the trial Court only after discussion of evidence and giving appropriate reasons for the same. Going through the impugned judgment I find that the appellate Court soon after narrating the facts of the case in brief, reproduced the arguments and the authorities placed before it on the question of interpretation of the term 'abandonment' and thereafter by a very cryptic order allowed the appeal abruptly holding as follows:-- "After deep thought and consideration, and double thinking, the question that comes to mind is "whether this can be abandonment of wife and children". It can never be." It was also opined that the Sub-District Council Court had no jurisdiction to try the case which ought to have been presented before Village Council Court at Champhai Venglai and, therefore, there was violation of Rules 14(a) and 21 of the Administration of Justice Rules, 1953 (wrongly mentioned in stead of the Lushai Hills Autonomous District (Administration of Justice) Rules, 1953). With these comments and with the wishful thought that there should be someone to try for a reconciliation, the appeal was allowed setting aside the judgment and decree of the learned trial Court. 8. The relevant rules referred to in the judgment for the sake of the appreciation are reproduced as below:-- "14. With these comments and with the wishful thought that there should be someone to try for a reconciliation, the appeal was allowed setting aside the judgment and decree of the learned trial Court. 8. The relevant rules referred to in the judgment for the sake of the appreciation are reproduced as below:-- "14. A Village Court shall try suits and cases of the following nature in which both the parties belong to a Scheduled tribe or tribes resident within its jurisdiction; (a) Cases of civil and miscellaneous nature falling within the purview of village or tribal laws and customs; (b) . . . * * * 21. A Subordinate Court or an Additional Subordinate District Council Court or Courts shall have original jurisdiction in all suits and cases in which both the parties do not fall within the local jurisdiction of the same village Court, but within the areas under the jurisdiction of the Subordinate District Council Court or an Additional Subordinate District Council Court or Courts and also in cases and suits referred to it by a village Court under Section 18". . A plain reading of the rules quoted above will show that the Village Court has jurisdiction to try suits between the parties who were tribes residing within its local jurisdiction and the Sub-District Council Court shall have jurisdiction to try all suits and cases between the parties who may not come under the same village but within the areas under the jurisdiction of such Courts and also suits referred to it by the Village Court. In any case, there cannot be any bar for the Sub-District Council Court to assume jurisdiction in trial of suits between the parties who reside in its jurisdiction. At best it can be said that both these Courts may have concurrent jurisdiction on the principle of law given by Sections15 and 21 of the Civil Procedure Code (C.P.C.). The choice of forum, on the basis of well established law by several authorities, may be summarized as follows. "Section 15 of C.P.C. enacts on rule of procedure but it does not affect the jurisdiction of a Court of higher grade to try the suit entertainable by a Court of lower grade. When a suit triable by a Court of lower grade is instituted in a Court of higher grade, the latter Court may return the plaint. "Section 15 of C.P.C. enacts on rule of procedure but it does not affect the jurisdiction of a Court of higher grade to try the suit entertainable by a Court of lower grade. When a suit triable by a Court of lower grade is instituted in a Court of higher grade, the latter Court may return the plaint. It is only discretionary on the part of such latter Court (i.e. to say the Court of higher grade) either to try the suit itself or to return the plaint for presentation in the Court of the lower grade. Section 15 is enacted not merely to avoid overcrowding in the higher Court but also for the convenience for the parties and witnesses who may be examined by them". As a matter of interpretation it will be seen that forum can be chosen by the parties on their options and all objections regarding choosing the forum is to be determined at the first instance and if necessary by passing order returning the plaint (Order 7, Rule 10) for presentation in proper Court. It is also the settled question of law that all objections towards jurisdiction is to be taken at the earliest point of time as per mandate of Section 21 of C.P.C. It is, in my opinion, not proper on the part of the appellate Court to set aside the judgment and order of the trial Court on this technical ground, unless there was a finding that due to assumption of such jurisdiction the case is likely to end in a case of failure of justice. 9. The judgment of the trial Court was exhaustive in nature and there was framing of as many as five issues, which were decided by the trial Court rightly by scrutinising the evidence. It is unfortunate that the appellate Court never cared to appreciate the evidence in order to find out whether the findings were correctly recorded by the trial Court. This is not permissible in law. It is well established by different authorities that appellate Court will have to reappreciate the evidence on record and come to its own findings even if it is to differ or agree with the findings recorded by the trial Court. Truly, speaking the impugned judgment of the appellate Court is not a judgment worth the name but is a cryptic, arbitrary and fanciful thinking. Truly, speaking the impugned judgment of the appellate Court is not a judgment worth the name but is a cryptic, arbitrary and fanciful thinking. It is obligatory for appellate Court to record, the points for determination and answer them with reasons. 10. Now, coming to the real dispute between the parties which the appellate Court (ailed to decide, I find that several witnesses were examined by the trial Court including the parties themselves. However, in the deposition recorded by the trial Court it has not been mentioned which witness was examined by whom and there is nothing to show whether the witnesses were cross-examined or not by the opponent. Learned trial Court on the basis of the pleadings of the parties (submitted in the form of 'complaint' and 'reply to the complaint') framed the following issues:-- "1. Whether the plaintiff and the defendant are divorced/separated? Whether the separation, if any, is by way of abandonment? 2. Whether the properties mentioned were acquired during the marriage of the plaintiff and the defendant. 3. Whether the property is liable to be distributed between the contesting parties. 4. Whether the properties in the list should be distributed between the parties. 5. What should be the share of both the parties." The fate of the suit will depend mainly on the decision of Issue No. 1 above which deals with the question of abandonment/divorce of wife by husband. I am going to deal with this issue No. 1 first of all. 11. In the Mizo-Customary Law there is the custom of husband 'abandoning' his wife which is called 'Nupui Tlansan' in Mizo language. A monograph on Lushai Customs and Ceremonies written by retired I.C.S. Officer, Mr. N. E. Parry, describe/defines abandonment as follows: "12. If a man abandons his wife and family and goes away, the house, field and all the property belonging to him become his wife's property. His children also go to his wife and she will get the marriage price of their daughters. If after a year he tries to return to his wife, his wife can take him back or not as she likes. If she refuses to take him back she is entitled to keep the house, the property and the children." There is a compilation of Mizo Customary Law by Mizoram District Council. Section 59 of which goes as follows:-- "59. If she refuses to take him back she is entitled to keep the house, the property and the children." There is a compilation of Mizo Customary Law by Mizoram District Council. Section 59 of which goes as follows:-- "59. Abandonment of family-- If a man abandons his wife and family, and if that has been accepted as such by a Court, his house, property and children shall go to his wife who will receive the marriage price of the female children performing all the duties of father when they marry. If the husband returns after three years, the wife can refuse to take him back and in such cases she is entitled to have the house, the property and the children of her husband. Abandonment implies to turn away from and also to stop taking care of the wife." A careful study of the Mizo Customary Law quoted above from two sources will clearly show that distinctly it is not 'divorce' as is understood In a legal parlance. It is just turning away from the family and wife leaving them to their destiny as per the language used in defining 'abandonment'. In her plaint (complaint) the appellant-plaintiff has stated that her husband abandoned his house and had married another lady named Doncihehuali and was living with the said lady at Champhai Venglai since 14-2-98. The complaint was presented by her on 11-3-98, that is, almost within a month. She also stated in her 'complaint' that she was having female problem and had to undergo major operation and accordingly became physically unfit to take hard work. In his written statement (reply to the complaint) the respondent husband has stated in connection with the allegations of abandonment that he has not married another wife as alleged but in fact was living with Doneihchuali in one of his house and he does not know how long he will continue to live with that lady. 12. If we go by the provisions of the customary law of abandonment the question of marrying a second wife appears to be irrelevant in that context. What is needed to be proved in a case of abandonment is an act of desertion. Since the word 'abandonment' has not been defined it is to be understood as per dictionary meaning. 12. If we go by the provisions of the customary law of abandonment the question of marrying a second wife appears to be irrelevant in that context. What is needed to be proved in a case of abandonment is an act of desertion. Since the word 'abandonment' has not been defined it is to be understood as per dictionary meaning. Oxford Advance Learner's Dictionary says 'abandonment' means acts of leaving a person, thing or place with no intention of returning; to stop supporting or helping somebody in addition to other meanings (which are not relevant in the present context). Chamber's 20th Century Dictionary says 'abandonment' means to give up, to, desert; a condition of letting oneself go careless, freedom of action, complete desertion, etc. 13. The evidence adduced to prove abandonment are as follows: Plaintiff in her deposition in Court on 18-3-98 stated that her husband went to live/co-habit with Smt. Doneihchuali on 24th December, returned on 27 December and was sleeping with Donehchuali in different houses. On 17th January he came under the influence of liquor and in presence of her relatives Pu. Hualkhuma (her father) and Chalthuama asked her father to take her away telling that he had divorced her and thereafter he left her from the night onwards. On two other occasions plaintiff deposed that she sent one Sawli to bring money from her husband Pu. Rokunga but Sawli returned empty-handed. She was corroborated her daughter Smt. Aimawli who deposed that on 17-1-98 her father R. Rokunga called all his issues along with Hualkhuma and Pu. Chalthuama and in presence of all of them he told that he has withdrawn himself from his wife and it preceded an event of quarrel between her father and mother. Another daughter, named Sangkhumi also made similar statement, as was made by Aimawli. Exact statement made by her in Mizo language goes as follows:-- "Ka pa F. Rokunga hian ka nu hnenah I pasal ka nihna atang hian ka in hlipeati a" (My father F. Rokunga stated that he is taking off himself from the responsibility of being a husband." Not to speak of that, even the defendant-respondent No. 1 himself deposed that he started living separately from his wife and a vehicle was purchased before they effected the divorce between themselves. Therefore, there is absolutely no evidence adduced from defence to say that there was no divorce or abandonment as well call it in Mizo Customary Law. Even Doneihchuali, the mistress of the defendant, also admitted in her evidence that she is living with defendant Rokunga w.e.f. 17-1-98. Therefore, the learned trial Court was correct in arriving at the decision that there is a case of abandonment while answering issue No. 1 in favour of the appellant/plaintiff. 14. The defendant in his deposition has clearly stated that after the marriage in 1962, he and his wife started living separately from the year 1972, when he was around the age of 29 years and both of them jointly constructed the house and by then he is the owner of three houses including a vehicle. Therefore, the finding of the learned trial Court with respect to issue No. 2 also was based on evidence and there is nothing to assail in the same. Upon these findings the decisions on the other issues followed and concluding thereof. Learned trial Court divided the properties, allowing the major portion of the same in favour of the husband. 15. The Mizo Customary Law of abandonment quoted earlier provides that after lapse of three years of abandonment if the husband returns the wife may refuse to accept him. Since 1998 almost five years have elapsed and there is no evidence that parties have ever tried to reconcile, attempts of relations notwithstanding. It has been clearly mentioned in Section 59 of the Mizo Customary (Mizo Hnam Dan) (to reiteratb) that abandonment implies to run away from and also to stop take care of wife. This exactly is the case here as per the evidence on record and partly from the admission of the defendant. 16. The defendant in his written statement has categorically admitted on and from 14-2-'98 he is living with his mistress Doneihehuali and he cannot say how long he will stay with her. That he has permitted his younger son Malsawma to reside in one of his houses with his (son's) family members and look after his property and take care of his (son's) mother and that he believes there is nothing wrong in it. That he has permitted his younger son Malsawma to reside in one of his houses with his (son's) family members and look after his property and take care of his (son's) mother and that he believes there is nothing wrong in it. Subsequently, however, he was travelled far beyond his pleadings and raised further pleas of a case of a gift and a will at the stage of appeal and also before this Court by filing counter-affidavit. A will can neither be probated nor be treated to create any right during the lifetime of the testator. Perhaps getting the clue of law in this regard he has shifted his stand to say that he has gifted away two of his houses to two of his sons. Naturally, such a gift or sale, as he called it, are during pendency of the present suit which would have no legal entity. It is submitted from the appellant that even if there was any transfer by way of sale or gift there is no registered document to that effect and in view of the fact of Registration Act coming into application in the State of Mizoram from 5-6-1997 no sale deed will be valid without registration of the same. However, this is beyond scope of adjudication under the present frame of the suit. 17. The plaintiff is thus entitled to her share in the property on and from the date of divorce and her right cannot be defeated by subsequent transfer if the customary law of 'abandonment' is to be forced in Us letters and spirit. 18. Fairly for her the plaintiff has demanded only a house to live in and the minimum of the property so that she can sustain her life and brought up the children begotten by them. 19. Concluding, I find there is merit in the appeal which Is allowed. The judgment and decree passed by the appellate Court is set aside and that of the trial Court is re-stored in its entirety, 20. 19. Concluding, I find there is merit in the appeal which Is allowed. The judgment and decree passed by the appellate Court is set aside and that of the trial Court is re-stored in its entirety, 20. It is made clear that during the course of the pendency of the appeal/suit if the property, allotted to the plaintiff by Court, has been sold out by the defendant or otherwise is encumbered, the decree will be charged upon the other properties in the hand of the defendant and the plaintiff would have a choice to execute a decree against any of the unsold property In existence or seek appropriate compensation in any case. 21. The appellant will be allowed a cost of Rs. 2.000/-. Appeal allowed