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2012 DIGILAW 53 (GAU)

Singong Kamei Paokingei v. M. K. Guikhenang

2012-01-13

T.NANDAKUMAR SINGH

body2012
JUDGMENT T.N.K. Singh 1. The challenge in this Second Appeal is to the judgment and decree dated 11.9.1996 passed by the learned District Judge, Manipur West in Civil Appeal No.9 of 1996 for setting aside the judgment and decree dated. 31.5.1995 passed by the learned Civil Judge (Jr. Division) Tamenglong, Manipur East for decreeing the O.S. No. 1 of 1995. Heard Mr. Th. Modhu, learned counsel appearing for the appellant-plaintiff and Mr. N. Ibotombi, learned Sr. counsel assisted by Mr. A. Romel, learned counsel appearing for the respondent-defendant. 2. Only the concise pleaded case of both the appellant-plaintiff and the respondent-defendant sufficient for deciding the present Second Appeal are noted. The pleaded case of the appellant plaintiff in his plaint in O.S. No.1 of 1995 of the Civil Judge (Jr. Division), Tamenglong is that the plaintiff is one of the descendants of Singongmei Kamei clan. "Lukhambi" village was established by one Shri Phenganang Singongmei of Singongmei clan and he was the first Khunbu/Khullakpa of the Lukhambi Village. He had been recognized as the Chief/Khunbu of the village during the erstwhile British Rule in the State of Manipur. By virtue of custom prevailing in and among the Naga inhabitants in Tamenglong District Manipur, leader of the settlers of the Naga village is recognized as Khullakpa/Chief of its village. 3. It is the admitted case of both the parties that in Tamenglong area Chief/Khullakpa of a village is the Ex-officio Chairman of the Village Authority and also that in Tamenglong area wherever Khunbu is the Chief, he shall be the Chairman. In this regard, the Government of Manipur under the letter of the Under Secretary (Hills) to the Govt. of Manipur being No.9/26/92-CHA (i) Imphal, the 31st August, 1992 had issued clarification to the Deputy Commissioner, Tamenglong Manipur. For easy reference, the said letter of the Government of Manipur dated 31.8.1992 is quoted hereunder: Government of Manipur Secretariat: Hill Commissioner's Department. No.9/26/92-CHA(i) Imphal, the 31st August,1992 To The Deputy Commissioner/Tamenglong Manipur. Subject: Clarification on Khunbu or Khulakpa as Ex-officio Chairman. Sir, I am directed to refer to your message No.DC/TML/11/104/VAE/92 dt. 11/8/92 on the above subject and to reproduce below the observations made by the Law Department in the matter for guidance:- At the time of the drafting of the law, the fact that there is Khunbu above Khullakpa in the Tamenglong area was not noticed. Sir, I am directed to refer to your message No.DC/TML/11/104/VAE/92 dt. 11/8/92 on the above subject and to reproduce below the observations made by the Law Department in the matter for guidance:- At the time of the drafting of the law, the fact that there is Khunbu above Khullakpa in the Tamenglong area was not noticed. However, the law says the Chief or Khullakpa will be the Chairman. In the Ukhrul area Khullakpa is the Chief and in the Kuki area Ningthou is the Chief. The intention of the law is that the Chief of the Village by whatever named he is called should be the Chairman of the Authority. Therefore in the Tamenglong area wherever the Khunbu is the Chief he shall be the Chairman. Yours faithfully, Sd/-(ZAIREMA) Under Secretary(Hills) to the Govt. of Manipur 4. Chiefship/Khullakpaship of the Lunkhambi Village was successively succeeded by the descendants of the first Khunbu/Khullakpa, Phenganang Singongmei, and the names of his descendants are: (1) Meirutong Singongmei (2) Khamrei, (3) Namkhamrei Singongmei, (4) Duiring Singongmei, (5) Digao Singongmei, (6) Moulak Singongmei, (7) Ningammang Singongmei, (8)Namkhuan Singongmei, (9) Khundaising Singongmei, (10) Laiangjinang Singongmei, (11) Kuhupanglak Singongmei, (12) Khunkiurei, (13) Bonkimlak Singongmei and (14) Nandising alias Namrising Singongmei, who is the grand-father of the appellant plaintiff. After the death of Shri Nandising alias Namrising Singongmei, his son Kaphulung Songongmei became the Khunbu/Chief of Lukhambi village and he died in the year, 1979 leaving behind the appellant plaintiff as his eldest son. Thus, the appellant-plaintiff became the eldest member of Singongmei Kamei clan and became the Khunbu/Chief of the Lukhambi (khumji) village. 5. The appellant-plaintiff on his becoming the Khunbu/Chief of the Lukhambi village, religious rituals and other customary ceremonies according to Naga custom prevailing in the Tamenglong area were performed by the appellant-plaintiff in presence of his villagers and he also continued to perform annual religious and other ceremonies as the Khunbu/Chief of the Lukhambi Village every year. The appellant-plaintiff, being illiterate rustic tribal, the respondent-defendant took advantage of his illiteracy and managed to enter his name as the Khunbu/Chief of the village in the Taoji of the Hill Villages of the Government without notice/knowledge or consent of the appellant-plaintiff. The appellant-plaintiff, being illiterate rustic tribal, the respondent-defendant took advantage of his illiteracy and managed to enter his name as the Khunbu/Chief of the village in the Taoji of the Hill Villages of the Government without notice/knowledge or consent of the appellant-plaintiff. This illegal act which was committed behind the back and knowledge of the appellant-plaintiff came to the notice of the appellant-plaintiff only when the respondent-defendant had taken/claimed the office of Ex officio Chairman of the Village authority of Lukhambi village in the year, 1994; and against that illegal action of the respondent-defendant, the appellant-plaintiff filed Misc. Hill Case No.7 of 1994 before the Dy. Commissioner/District Magistrate, Tamenglong. The Deputy Commissioner/District Magistrate, Tamenglong had allowed the parties to put up their case and also allowed the party to produce not only oral but also documentary evidence in support of their case. The learned Deputy Commissioner, Tamenglong, after careful appreciation of the statements of the respective parties and their witnesses and also the documents, passed his judgment and order dated 11.2.1994 in Misc. Hill Case No/Misc. Case No.1 of 1994 wherein and where under the learned Deputy Commissioner, Tamenglong for the reasons mentioned therein made a finding that Singongmei Kamei clan was the first settler of Lukhambi village; however, the learned Deputy Commissioner held that Deputy Commissioner has no jurisdiction to adjudicate the matter, i.e. the right to office of Khunbu/Chief of the village inasmuch as it being the civil right, the civil Court is the Court of competent jurisdiction. Since the judgment and order of the learned Deputy Commissioner, Tamenglong dated 11.2.1994 passed in Misc. Hill case/Misc. Case No.1 of 1994, which was exhibited as Ext/1 by the appellant-plaintiff in the O.S.No.1 of 1995 before the learned Civil Judge (Jr. Division) Tamenglong, was considered by the learned Civil Judge (Jr. Division), Tamenglong in deciding the case of the appellant-plaintiff, a quick glance to it is required to be made. For convenience, relevant findings of the learned Deputy Commissioner, Tamenglong in his judgment and order dated 11.2.1994 in Misc. Hill case/Misc. Case No. 7 of 1994 are quoted hereunder: To examine the genuineness of the claims, the petitioner Shri S.K. Poukingai and Shri Guikhenang, the present Khunbu and Chairman were summoned to appear before this court along with their respective witnesses to support or defend their claims. Hill case/Misc. Case No. 7 of 1994 are quoted hereunder: To examine the genuineness of the claims, the petitioner Shri S.K. Poukingai and Shri Guikhenang, the present Khunbu and Chairman were summoned to appear before this court along with their respective witnesses to support or defend their claims. In his statement Shri Poukingai stated that two clans namely Singongmei clan and Gonmei clan were the first settlers of Lukhambi migrated from Dailong village. Phenganang Singongmei was the first Khunbu who firstly performed the customary rites when the Lukhambi village was firstly established. Malangmei clan (Malang Kamei clan) came later from Mandu village and settled down at Lukhambi long after the establishment of the village by the aforesaid two clans. The sequence of Khunbus/Chairman of Lukhambi was (1) Phenganang Singongmei succeeded by (2) Meirutong Singongmei, (3) then by Khamrei (4) then by Namkhamrei Singongmei (5) then by Duiring Singongmei (6) then by Digao Singongmei (7) then by Moulak Singongmei (8) then by Ningamang Singongmei (9) then by Namkhuan Singongmei (10) then by Khundaisin Singongmei (11) then by Liangjinang Singongmei (12) then by Kahupenglak Singongmei (13) then by Khunkiurei Singongmei (14) then by Bonkimlak Singongmei (15) then by second Moulak Singongmei (16) then by Namdising alias Namrising Singonmei. While Namdising alias Namrising Singongmei was holding the Khunbuship, one Tongpu Kom came and approached to Namrising to allow him to establish a new village within the land of Lukhambi village. Namrising allowed Tongpu Kom to establish a new village as prayed for, now known as 'Langkhong Khunou' village. After that Malang Kamei clan led by one Ramhomang Malangmei ros up and snatched away forcibly the Khunbuship of Lukhambi village because number of male persons of Malangmei clan was bigger than that of Singongmei clan and they were stronger than Singongmei clan. Poukingai also said that in the year in which Ramhomang Malangmei took over charge of Khunbuship forcibly and performed the customary rites as Khunbu, the paddy field of the Lukhambi village was not productive so that the field was called as "Napgunglong",i.e. unfruitful/unproductive paddy field and it is still known as "Napgunglong." Since then Singong Kamei clan could not take over the charge of Khunbuship of Lukhambi from Malang Kamei clan and it is still in their hand. (at Exhibit 1). (at Exhibit 1). In his statement Shri Guikhenang Malangmei s/o late Phendinjinang of Lukhambi stated that Taluiyang was the first settler of Lukhambi village and he offered one pig and one mithun for the villagers when the village was firstly established. Taluiyang was succeeded by his son Ramjinang, then by Kinjinang, then by 2nd Taluiyang then by Ramkhonang, then by Sungkariu, then by Ramhomang, then by Lungjang, then by Kadiliang, and then by Guikhenang, the present Chairman. He also said that his forefathers did not perform the customary rites over the deaths and did not eat 'Changramjan' and he also does not perform such things as they were Khunbus and he is (at Exhibit 2). Three witnesses of Shri Guikhenang Malang Kamei were examined. They were (1) Victor Kamei s/o late Gainangbonang of Awangkhul (2) Chungbamang Kamei s/o late Jathonang of Noneh and (3) Lunglin Kamei s/o Digongpou of Lukhambi. Victor Kamei stated that to the best of his knowledge Shri Kadiliang was the Khunbu of Lukhambi and succeeded by Shri Guikhenang Malangmei. Chungbamang Kamei stated that he was in Lukhambi while he was a boy and told by Ramhomang that Ramhomang was the Khunbu of Lukhambi and he himself and his forefathers migrated from Mandu village. He also said that Ramhomang was succeeded by Bungjang, then by Kadiliang and then by Guikhenang. Lunglin Kamei stated that he knows that Guikhenang and his forefathers have been Khunbus of Lukhambi and no else (at Exhibit 3 to 5). Four witnesses of Shri Poukingai namely (1) Sonneithang Kom (2) Malianggong Gonmei (3) Guidonang Kamei and (4) Chunkeilung were also examined. Shri Sonneithang Kom s/o Lenkhopao of Langkhong Khunou stated that he is one of descendants of Tongpu Kom first settler of Langkhong Khunou village. He also said that his father told him that his grandfather Tongpu Kom who established Langkhong Khunou took a permission from one Namrising the former Nampou (Khunbu)/Chief of Lukhambi for establishment of a new village now known as "Langkhong Khunou" within the jurisdiction of Lukhambi by offering one buffalo and one dog. Namrising alias Namdising and his Pei members permitted Tongpu Kom to establish the village "Langkhong Khunou" within his village land. Since then they have been living in this village by paying 3(three) tins of paddy per house per year to Lukhambi village. Namrising alias Namdising and his Pei members permitted Tongpu Kom to establish the village "Langkhong Khunou" within his village land. Since then they have been living in this village by paying 3(three) tins of paddy per house per year to Lukhambi village. Besides, Chief of Langkhong Khunou village offers one Khrung of rice bear to Lukhambi Pei every year at the time of payment of Lamsal (:Rampon). In this point, Guikhenang Malangmei was given a chance to counter it. But Guikhenang said that he has nothing to say in this regard. Shri Malianggong Gonmei s/o late Kadungong of Lukhambi stated that he was told by his forefathers that Singongmei and Gonmei clans were the first settlers of Lukhambi village and they migrated from Dailong village. These two clans agreed themselves that Singongmei clan to be the Nampou/Khunbu of Lukhambi village. Since then Singongmei clan had been performing the duties of customary rites as Khunbu. But during the British regime one Ramhomang Malangmei declared himself as Khunbu of Lukhambi snatching from Singongmei clan. Since then Malangmei clan have been doing the Khunbuship of Lukhambi village. Shri Guidonang Kamei s/o late Raninglung of Noneh stated that his forefathers told him that Poukingai's forefathers were real Khunbu of Lukhambi and first settlers. They migrated from Dailong village and settled down at Lukhambi as first settlers. Shri Chunkeilung Malangmei s/o late Dinbi of Rangkhung village stated that his father and elders of Rangkhung village told him that Singongmei and Gonmei clan were the first settlers of Lukhambi and Singongmei clan was the real Khunbu of Lukhambi village. The names like Namgurei, Khunkhiurei, Khamrei, etc. are of Singongmei clan which signifies that they are first settlers of Lukhambi. Poukingai is the real descendant of the first settlers of Lukhambi village. (at exhibit 6 to 9). One Shri Lunpu, an elder of Langkhong Khunou village also certified on 27.7.93 that Chief of Langkhong Khunou (Mangkotjang) village offered and slaughtered one bull and one dog to Stou Namrising, the former chief of Lukhambi village when he obtained permission to establish a village within the land of Lukhambi village and Langkhong Khunou village was founded in the land of Lukhambi village with permission of Namrising. It is also certified that they are paying land tax in kind i.e. paddy as started paying land tax to Namrising by the first settler of Langkhong khunou village. It is also certified that they are paying land tax in kind i.e. paddy as started paying land tax to Namrising by the first settler of Langkhong khunou village. (at exhibit 10): In this connection also no counter statement was made by Shri Guikhenang. ORDERS On observation of all points of evidences given by both parties, it appears that the evidence given by a neutral party i.e. Sonneithang Kom and Lunpu both of Langkhong Khunou village is more reasonable and stronger. It is also evident that Singongmei clan was the first settler of Lukhambi village. However, the claim is for Khunbuship of the village and does not pertain to election of the village Authority and this Court is competent to issue an order only in the latter case. Hence, it is beyond the jurisdiction of this court to adjudicate on the matter and the complainant is directed to approach the competent court of Civil jurisdiction. Announced and given under my hand and seal on this 11th day of February, 1994. Sd/- (SHMBHU SINGH) DISTRICT MAGISTRATE TAMENLONG DISTRICT: MANIPUR 6. As directed by the learned Deputy Commissioner, Tamenglong vide judgment and order dated 11.2.1994 passed in Misc. Case No. 7 of 1994, the appellant-plaintiff filed the Original Suit Nko. 1 of 1995 in the court of learned Munsiff, Tamenglong, Manipur, which had been re-designated as Civil Judge (Jr. Division) Tamenglong, against the respondent-defendant. The reliefs sought for are: (a) a decree declaring that the Plaintiff is the Khunbu/Chief of Lukhambi Village; (b) a decree declaring that the defendant is not the Khunbu/Chief of Lukhambi village and also to declare that he is not the Ex-officio Chairman of Lukhambi Village; (c) a decree of cost AND (d) a decree or such other relief or reliefs which the learned Court may deem fit and proper for the ends of justice and of equity. 7. The case of the respondent-defendant pleaded in his written statement is that the Khunbu/Khullakpa (Chief) is succeeded by their descendants. The original person who founded and settled in Lukhambi village was one Shri Taluiyang Kamei and as such he was the first Khunbu of Lukhambi village and he was not the member of Singongmei clan. 7. The case of the respondent-defendant pleaded in his written statement is that the Khunbu/Khullakpa (Chief) is succeeded by their descendants. The original person who founded and settled in Lukhambi village was one Shri Taluiyang Kamei and as such he was the first Khunbu of Lukhambi village and he was not the member of Singongmei clan. After the death of Shri Taluiyang Kamei, his descendants succeeded Khunbuship/Chiefship of Lukhambi village and his descendants were: - (1) Kinjinang Kamei, (2) Ranjinang Kamei, (3) Ramhuanang Kamei, (4) Lungjang Kamei, (5) Kingbuyeng Kamei, (6) respondent-defendant Shri Guikhenang Kamei respectively. In the written statement, respondent-defendant did not make any whisper that O.S.No.1/95 filed by the appellant-plaintiff is barred by limitation and also there was not even a whisper regarding his adverse possession of the office of Khullakpa/Chief of Lukhambi village. There is no pleading in the written statement that the suit is barred by Section 34 of the Specific Relief Act (Act No. 47 of 1963). The learned Civil Judge (Jr. Division), after careful perusal of the respective pleadings of the parties and after hearing the parties, framed as many as 9(nine) issues, i.e. 1. Who established the Lukhambi Village also known as Khumji village-either Phenganang Singongmei of Singongmei clan as alleged in the plaint or Taluiyang Kamei as alleged in the W/S ? 2. What is the local custom prevailing amongst the local people of Lukhambi Village as to the right of inheritance to the office of Khunbuship ? 3. Whether Singongmei clan and Singongkamei clan are one and the same clan ? 4. Whether the office of Khunbuship and that of Khullakpaship are one and the same office ? 5. Whether the plaintiff did have any right to be the Khunbu of Lukhambi just after the death of Nandising @ Namrising Singongmei as he so alleges in the plaint ? 6. Is there any cause of action as alleged ? 7. Is the suit maintainable in its present form ? 8. Who is the present khunbu of Lukhambi village ? 9. Is the plaintiff entitled to the reliefs claimed ? 8. 6. Is there any cause of action as alleged ? 7. Is the suit maintainable in its present form ? 8. Who is the present khunbu of Lukhambi village ? 9. Is the plaintiff entitled to the reliefs claimed ? 8. For proving the pleaded case of the appellant-plaintiff for the issues formulated and settled (quoted above), examined 4(four) witnesses namely PW/1 Shri S.K. Paukingai (the appellant-plaintiff), PW/2 S.K. Adipao, PW/3 S.K. Gonmei and PW/4 S.K. Alothui and also exhibited two documents i.e. Ext.A/1 (judgment and order of the learned Deputy Commissioner, Tamenglong dated 11.2.1994 passed in Misc. Hill case/Misc. Case No.7/1994) and Ext-A/2 (order of the President Zeliangrong Union, Assam Manipur and Nagaland passed in case No.ZU/22/MANIPUR/92 declaring that appellant-plaintiff is the rightful Khunbu of Lukhambi village and he shall perform and carry out duties and functions of Khunbu of Lukhambi village. 9. From the side of the respondent-defendant, for proving his pleaded case for the issues formulated above, only one witness, D.W.No.1, i.e. respondent-defendant, was examined and no document was produced. Therefore, there is no evidence either oral or documentary to prove the pleaded case of the respondent-defendant save and except his statement as DW-1 before the trial court, i.e. the court of learned Civil Judge (Jr. Division) Tamenglong, Manipur. The learned trial court, i.e. civil Judge (Jr. Division), Tamenglong, after appreciation of the witnesses, i.e. PWs, documentary evidences, i.e. the documents produced and exhibited by the Appellant-plaintiff and the solitary statement of the respondent-defendant (DW-1), decided the Original Suit No.1 of 1995 in favour of the appellant-plaintiff thereby decreeing the suit by granting the reliefs sought for in the O.S.No.1 of 1995. The learned trial court, while passing the judgment and decree dated 31.5.1996 in the O.S.No.1 of 1995, had taken into consideration the finding of fact by the learned Deputy Commissioner, Tamenglong in his judgment and order dated 11.2.1994 passed in Misc. Hill case/Misc. The learned trial court, while passing the judgment and decree dated 31.5.1996 in the O.S.No.1 of 1995, had taken into consideration the finding of fact by the learned Deputy Commissioner, Tamenglong in his judgment and order dated 11.2.1994 passed in Misc. Hill case/Misc. Case No.7 of 1994 that "Singongmei" clan was the first settler of Lukhambi village; it is the pleaded case of the appellant-plaintiff in the plaint basing on which the appellant-plaintiff sought the reliefs in the O.S. No.1/95 that (1) Phengangnang Singongmei, member of the Singongmei clan is the first settler and founder of Lukhambi village and his descendants succeeded the Khunbuship/Chiefship of the Lukhambi village and the appellant plaintiff who is the member of the Singongmei clan became the Chief/Khunbu of Lukhambi village. 10. It is fairly well settled law that the pleaded facts in the civil proceedings are to be proved by a preponderance of probabilities. In a civil suit the plaintiff is not expected to prove his title beyond any reasonable doubt. A high degree of probability of his case or his title would be enough to shift the onus on the defendant and if the defendant does not succeed in shifting back the onus, the plaintiff's burden of proof can safely be deemed to have been discharged. 11. The Apex Court in R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple & Another:(2003)8 SCC 753 held that: 33. The offshoot of the above discussion is that no question of law much less a substantial question of law arose in the case worth being gone into by the High Court in exercise of its second appellate jurisdiction under Section 100CPC. The High Court was bound by the findings of fact arrived at by the two courts below and should not have entered into the exercise of re-appreciating and evaluating the evidence. The findings of facts arrived at by the courts below did not suffer from any perversity. There was no non-reading or misreading of the evidence. A high degree of preponderance of probability proving title to the suit property was raised in favour of the appellant and the courts below rightly concluded the burden of proof raised on the plaintiff having been discharged while the onus shifting on the defendant remaining undischarged. The judgment of the high Court cannot be sustained and has to be set aside. 12. The Apex Court in Dr. The judgment of the high Court cannot be sustained and has to be set aside. 12. The Apex Court in Dr. N.G. Dastane v. Mrs. S. Dastane (1975) 2 SCC 326 at para 24 held: 24. The normal rule which governs civil proceedings is that a fact can be said to be established if it is proved by a preponderance of probabilities. This is for the reason that under the Evidence Act, Section 3, a fact is said to be proved when the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The belief regarding the existence of a fact may thus be founded on a balance of probabilities. A prudent man faced with conflicting probabilities concerning a fact-situation will act on the supposition that the fact exists, if on weighing the various probabilities he finds that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the Court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second. Within the wide range of probabilities the court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance of probabilities lies. Important issues like those which affect the status of parties demand a closer scrutiny than those like the loan on a promissory note: "the nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue"; Per Dixon, J, in Wright v. Wright (1948)77 CLR 191,210 or as said by Lord Denning, " the degree of probability depends on the subject-matter. In proportion as the offence is grave, so ought the proof to be clear." Biyth v. Bivth, (1966) 1 AER 524, 536. But whether the issue is one of cruelty or of a loan on pronote, the test to apply is whether on a preponderance of probabilities the relevant fact is proved. In proportion as the offence is grave, so ought the proof to be clear." Biyth v. Bivth, (1966) 1 AER 524, 536. But whether the issue is one of cruelty or of a loan on pronote, the test to apply is whether on a preponderance of probabilities the relevant fact is proved. In civil cases this, normally, is the standard of proof to apply for finding whether the burden of proof is discharged. 13. The respondent-defendants, being aggrieved by the judgment and decree of the learned Civil Judge (Junior Division), Tamenglong dated 31.5.1996 passed in O.S. No. 1 of 1995, preferred an appeal (first appeal) being Civil Appeal No.9 of 1996 before the learned District Judge, Manipur West. The main case of the respondent-defendant in the said Civil Appeal No.9/1996 without any material pleading in his written statement is that the suit is barred by limitation and also without pleading that the suit is barred by Section 34 of the Specific Relief Act (Act of 1963). The issues, i.e. issue No.1 whether the O.S. No.1 of 1995 is barred by limitation and the issue No. 2, i.e. whether the O.S.No.1 of 1995 is barred by Section 34 of the Specific Relief Act (Act of 1963) were not the issues in the O.S.No.1 of 1995 before the trial court nor pleaded case of the respondent-defendant in his written statement. Even then the learned First appellate court allowed the Civil Appeal No.9 of 1996 by passing judgment and order dated 11.9.1996 wherein and where under the first appellate Court held that the O.S.No.1/95 is barred by limitation. The learned first appellate Court, in the impugned judgment and order dated 11.9.96 passed in Civil Appeal No.9/96, did not decide all the issues framed in the O.S.No.1/95; but without deciding all the issues by giving reasons, the Civil Appeal No.9/96 was allowed only on the main ground that the suit is barred by limitation and also made the conclusion without any reason that the appellant-plaintiff did not prove his case. In the course of hearing of the present appeal, as suggested and as agreed to by the learned counsel appearing for the parties, the substantial questions of law called for decision in the Second Appeal were recast as such (i) whether the first appellate court committed error in substantial questions of law in holding that the suit is barred by limitation without any pleading in this regard and also when the question of limitation is not one of the issues in the suit and (ii) whether the first appellate court had committed error in discharging/performing duties and also failed to discharge/fulfill the requirements of the first appellate court in deciding the first appeal. Substantial Question No.1 14. For deciding the substantial question No.1, this Court has carefully perused the pleaded case of the appellant-plaintiff in the plaint vis-a-vis the pleaded case of the respondent-defendant in the written statement. The appellant-plaintiff in his plaint had specifically pleaded that only in the year 1994 the respondent-defendant had claimed himself to be the Ex-officio Chairman of the Village Authority of Lukhambi village and also that the appellant-plaintiff continued to perform all the annual religious rites and customary ceremonies as Khullakpa/Chief of the Lukhambi village. In the written statement, there is absolutely no whisper that the respondent-defendant has been adversely possessing the office of the Khullakpa/Khunbu of Lukhambi village for the last twelve years, i.e. 12 years prior to the filing the Original Suit and also that the suit is barred by limitation. 15. The importance of the pleadings in deciding the substantial question of law No.1. There is no pleading/whisper in the written statement that the suit is barred by limitation and the limitation is not the issue in the Original suit. The object and purpose of pleading and the issue are to ensure that the litigant came to the trial court with all the issues clearly defined and to prevent the cases being expanded or grounds being shifted during the trial. Its object is also to ensure that each side is fully alive to the questions that they may have an opportunity of placing the relevant evidence appropriate to the issues before the court for its consideration. In the absence of appropriate pleading on the particular issue, there can be no adjudication of such issue. Its object is also to ensure that each side is fully alive to the questions that they may have an opportunity of placing the relevant evidence appropriate to the issues before the court for its consideration. In the absence of appropriate pleading on the particular issue, there can be no adjudication of such issue. Adjudication of a dispute for a civil court is significantly different from the exercise of powers of judicial review in a writ proceeding by the High Court. It is well settled law that in the absence of any pleading, no amount of evidence led in relation thereto can be looked into and in the absence of any plea, no evidence is admissible. 16. The Apex Court in Prataprai N. Kothari v. John Braganza (1999) 4 SCC 403 held: 10. Reliance was sought to be placed on the additional evidence admitted by the learned Single Judge during the pendency of the appeals to prove that the appellant had title to the property. It is settled law that in the absence of any plea, no evidence is admissible. The Single Judge of the High Court overlooked that when there was no plea or issue on the question of title, no evidence whatever was admissible regarding the same. He acted beyond his jurisdiction in permitting additional evidence to be filed in appeals. 17. The Apex Court also held in Bondar Singh and Another v. Nihal Singh and Others : (2003)4 SCC 161 observed that: 7.......... It is settled law that in the absence of a plea no amount of evidence led in relation thereto can be looked into. Therefore, in the absence of a clear plea regarding sub-tenancy (shikmi), the defendants cannot be allowed to build up a case of sub-tenancy (shikmi). Had the defendants taken such a plea it would have found place as an issue in the suit. We have perused the issues framed in the suit. There is no issue on the point. The pleadings of the parties form foundation of their case. It is not open to give up the case set out in the pleadings and also cannot reprobate a new pleading. We have perused the issues framed in the suit. There is no issue on the point. The pleadings of the parties form foundation of their case. It is not open to give up the case set out in the pleadings and also cannot reprobate a new pleading. The Apex Court in Vinod Kumar Arora v. Surjit Kaur (1987) 3 SCC 711 held that: Further, the tenant averred in his written statement that the hall was let out for his residential use as well as for running a clinic but took a categoric stand during the enquiry that he had taken the hall on rent only for running his clinic and not for his residential needs as well. The pleadings of the parties form the foundation of their case and it is not open to them to give up the case set out in the pleadings on propound a new and different case. Moreover, having taken up such a stand, the appellant again contended that the lease of the hall was of a composite nature and as such the benefit of the enlarged definition of a non-residential building given in the E.P. Rent Restriction (Chandigarh Amendment) Act, 1982 would ensure to his aid in the case. The appellant cannot so reprobate. 18. Importance and object of the pleadings had been discussed by the Apex Court in Bechhaj Nahar v. Nilima Mandal & Ors AIR 2009 SC 1103 held that The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. Its object is also to ensure that each side is fully alive to the questions that are likely to be raised or considered so that they may have an opportunity of placing the relevant evidence appropriate to the issues before the Court for its consideration. Provisions relating to pleadings in civil cases are meant to give to each side intimation of the cases of the other so that it may be met, to enable Courts to determine what is really at issue between the parties, and to prevent deviations from the course which the litigation on particular causes of action must take. 19. The Apex Court in M/s Ganesh Trading Co., Appellant v. Moji Ram, Respondent : AIR 1978 SC 484 held that: 2. 19. The Apex Court in M/s Ganesh Trading Co., Appellant v. Moji Ram, Respondent : AIR 1978 SC 484 held that: 2. Procedural law is intended to facilitate and not to obstruct the course of substantive justice. Provisions relating to pleadings in civil cases are meant to give to each side intimation of the case of the other so that it may be met, to enable Courts to determine what is really at issue between parties, and to prevent deviations from the course which litigation on particular causes of action must take. This Court, in a number of cases, held that limitation is a mixed question of law and facts. The fact as to how the suit is barred by limitation is required to be pleaded in the written statement by the respondent-defendant inasmuch as it was his case for the first time before the first appellate court that the suit is barred by Art. 107 of the Limitation Act. Under Article 107 of the Limitation Act, the period of 12 years is to be counted from the date when the defendant took possession of the office adversely to the plaintiff. Therefore, for coming to the finding that the suit is barred by Art. 107 of the Limitation Act, there should be pleading of material fact regarding this point in the written statement. 20. This Court (Division Bench) in Jamkho v. Joseph (1994) 2 GLR 84 held that the question of limitation is a mixed question of law and fact and also this Court is of the similar view in State of Mizoram & others vs. Sanglawma AIR 2011 Gau 178 . 21. The Apex Court in Balakrishna Savalram Pujari Waghmare and others (in C.A. No.220 of 1953) (2) Duttatraya Gangaram Pujari Waghmare and another (in C.A. No.221 of 1953), (3) Madhav Tukaram Pujari and others (in C.A. No.222 of 1953) and (4) Babu Tukaram Pujari Waghmare and others (in C.A. No.223 of 1953), Appellants. V. Shree Dhyaneshwar Maharaj Santhan and others, Respondents AIR 1959 SC 798 held that Article 107 of the Limitation Act 1963 is applicable to the claim of possession of the hereditary office and for defeating the claim of the plaintiff for the hereditary office by limitation, there should be clear case of the defendant in the written statement that defendant are in adverse possession of the said hereditary office for more than 12 years. The Apex Court is of the similar view in Kalipada Chakraborti and Anr. V. Sm. Palani Bala Devi and Ors : AIR 1953 SC 125 . 22. Decision of the Apex Court, i.e. para 20 of the AIR in Balakrishna Savalram Pujari Waghmare and others' case (supra) read as follows: (20) Article 124 governs suits for possession of an hereditary office. The period of limitation prescribed by the Article is twelve years and the said period begins to run when the defendant takes possession of the office adversely to the plaintiff. This is explained to mean that the hereditary office is possessed when the profits thereof are usually received or (if there are no profits) when the duties thereof are usually performed. It is clear that before this Article can apply it must be shown that the suit makes claim for possession of an office which is hereditary; and the claim must be made against the defendant who has taken possession of the said hereditary office adversely to the plaintiff. Unlike Art. 142 the fact that the plaintiff is out of possession of the hereditary office for more than twelve years before the date of his suit would not defeat his claim for possession of the said office. What would defeat his claim is the adverse possession of the said office by the defendant for the prescribed period. As the explanation makes it clear usually the receipt of the profits may amount to the possession of the office; but if the defendant merely receive the profits but does not perform the duties which are usually performed by the holder of the office, the receipt of the profits by itself may not amount to the possession of office. The cause of action for possession in suits falling under Art. 124 is the wrongful dispossession of the plaintiff and the adverse possession by the defendant of the office in question. Claims for possession of hereditary offices which attract the application of this Article are usually made by holders of the said offices against persons who claim adverse possession of the said offices; in other words, in suits of this kind, the contest is usually between rival claimants to the hereditary office in question. 23. Claims for possession of hereditary offices which attract the application of this Article are usually made by holders of the said offices against persons who claim adverse possession of the said offices; in other words, in suits of this kind, the contest is usually between rival claimants to the hereditary office in question. 23. It is well settled that only pure question of law not dependant on the fact for which leading of evidence is required, can be taken as a new point for the first time in the appeal. It is also equally settled that questions of law could be arose for the first time upon the admitted fact or proved beyond controversy. The Apex Court in Chittoori Subhanna Vs. Kudappa Subhanna and others AIR 1965 SC 1325 held: Per Raghubar Dayal and Sikri, JJ.: A pure question of law not dependant on the determination of any question of fact should be allowed to be raised for the first time in the grounds of appeal by the first appellate court. Such pure questions of law are allowed for the first time at later stages also. Where a new point not taken in the grounds of appeal is sought to be raised as an additional ground by a substantive application for that purpose, the High Court has discretion to allow the application or refuse it. But the discretion exercised by the High Court will not be interfered with except for good reasons, for example, where the Court acts capriciously or in disregard of any legal principle. This Apex Court again is of the similar view in Raghubans Narain Singh vs. The Utrtar Pradesh Government, through Collector of Bijnor : AIR 1967 SC 465 . A new point which is a mixed question of fact and law for which neither any issue framed nor evidence led in the trial cannot be raised before the Supreme Court in the appeal. The Apex Court in Vasantha Viswanathan and Others Vs. V.K. Elayalwar and Others (2001) 8 SCC 133 held: 12. In the pleadings there is no whisper that the plaintiff was carrying on business of sale of permits. No issue was framed on this question in the trial court and no evidence was led by the defendants. The Apex Court in Vasantha Viswanathan and Others Vs. V.K. Elayalwar and Others (2001) 8 SCC 133 held: 12. In the pleadings there is no whisper that the plaintiff was carrying on business of sale of permits. No issue was framed on this question in the trial court and no evidence was led by the defendants. The only question that was raised was that the agreement to sell permits was illegal as the plaintiff wanted to circumvent the provisions of law which were likely to be introduced soon fixing a ceiling of permit on individuals. This question was raised for the first time before the High Court, which has recorded a finding, as stated above, that the agreement was not invalid. The question whether the plaintiff was trafficking in permits is not a pure question of law, but is a mixed question of fact and law both and for deciding the question of law, facts have to be first established by evidence. As in the present case, there was neither any pleading on this question nor any issue framed or evidence led, it is not possible to allow the defendants to raise the same. 24. For the foregoing discussions and reasons, the learned first appellate Court committed error in allowing the respondent defendant to raise the new point of limitation in the given case and decided the appeal, i.e. Civil Appeal No.9/96 basing on the said new issue. Accordingly, substantial question of law No.1 is decided in favour of the appellant-plaintiff. 25. For deciding the substantial question No.2, it is required to see and discuss the duties and jurisdiction of the first appellate court in the case of reversing the judgment and decree of the trial court. The first appellate Court, while writing judgment of reversal, must remain conscious of two principles-firstly the finding of fact based on conflicting evidence arrived at by the learned trial court must weigh the Appellate Court more so when the finding of facts are based on oral evidence recorded by the same Presiding Judge who authors the judgment and secondly reasons for reversal of the findings of facts. The Apex Court in Santosh Hazari vs. Purushottam Tiwari (deceased) by LRs. (2001) 3 SCC 179 held in para 15 thus: 15.... The appellate court has jurisdiction to reverse or affirm the findings of the trial court. The Apex Court in Santosh Hazari vs. Purushottam Tiwari (deceased) by LRs. (2001) 3 SCC 179 held in para 15 thus: 15.... The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. The task of an appellate court affirming the findings of the trial court is an easier one. The appellate court agreeing with the view of the trial court need not restate the effect of the evidence or reiterate the reasons given by the trial court; expression of general agreement with reasons given by the court, decision of which is under appeal, would ordinarily suffice (See Girijanandini Devi v. Bijendra Narain Choudhary: AIR 1967 SC 1124 ). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate court for shirking the duty cast on it. While writing a judgment of reversal the appellate court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial court must weigh with the appellate court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. 26. The first appellate Court is duty bound to make a critical analysis of the matter before it. It cannot make affirm or reverse the findings of the trial court without due and proper application of mind. (Ref. State of Rajasthan vs. Harphool Singh (I) through his LRs :(2005) 5 SCC 652). The finding of fact of the trial court mainly based on oral evidence or documentary evidence are not ordinarily be disturbed by the first appellate court unless the trial court's approach in appraisal of the evidence appears materially erroneous. The Apex Court in Madhusudan Das v. Smt. Narayanibai (deceased) by LRs. The finding of fact of the trial court mainly based on oral evidence or documentary evidence are not ordinarily be disturbed by the first appellate court unless the trial court's approach in appraisal of the evidence appears materially erroneous. The Apex Court in Madhusudan Das v. Smt. Narayanibai (deceased) by LRs. : (1983) 1 SCC 35 held that: In an appeal against a trial court decree, when the appellate court considers an issue turning on oral evidence, it does not enjoy the advantage which the trial court had in having the witnesses before it and of observing the manner in which they gave their testimony. When there is a conflict of oral evidence on any matter in issue and its resolution turns upon the credibility of the witnesses, the general rule is that the appellate court should permit the findings of fact rendered by the trial court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial court or there is a sufficient balance of improbability to displace its opinion as to where the credibility lies or the appraisal of the evidence by the trial court suffers from a material irregularity or is based on inadmissible evidence or on a misreading of the evidence or on conjectures and surmises. This approach should be placed in the forefront in considering whether the High Court proceeded correctly in the evaluation of the evidence before it when deciding to reverse the findings of the trial court. The principle is one of the practice and governs the weight to be given to a finding of fact by the trial court. 27. This Court, incidentally this very Bench, Justice T. NK Singh, in Sariar Ahmed Vs. State of Assam & Ors (2009) 1 GLT 328 held : 8. It is the well settled law that in a civil suit the plaintiff would not be expected to prove his pleaded case beyond any reasonable doubt but a high degree of probability of the pleaded case would be enough to shift the onus on the defendant and if the defendant does not succeed in shifting back the onus, the plaintiff's burden of proof can safely be deemed to have been discharged. Reference may be made to R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami & V.P. Temple & Anr (2003) 8 SCC 752 . Reference may be made to R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami & V.P. Temple & Anr (2003) 8 SCC 752 . There is no requirement under the law on the part of the learned trial court as well as the learned appellate court to fill up any lacuna on the part of the appellant/plaintiff in proving the said Ekrarnama dated 4.10.81. Rather the Trial court and appellate court should not take up any action for filling up any lacuna in providing the Ekrarnama as it would cause prejudice to the other party. It is the mandatory requirement of the appellant/plaintiff under the law to prove his pleaded case that the Ekrarnama dated 4.10.81 Ext.1 was executed by the respondent/defendant No.1. 28. This Court, incidentally this very Bench, Justice T.NK Singh, in Jutika Paul & Ors. Vs. Bhubaneswari Sheel & Ors 2007 (4) GLT 26 held that judgment of the first appellate court must display conscious application of mind and record finding on all issues supported by reasons. Para 14 of the GLT in Jutika Paul's case (supra) read as follows: 14. The Apex Court in Santosh Hazari vs. Purushottam Tiwari, reported in (2001) 3 SCC 179 held that the judgment of the Its appellate court must display conscious application of mind and the record findings supported by reasons on all issues. The Its appellate court being a final court of facts, the pure findings of fact by the Its appellate Court shall remain immune from challenging before the High Court in Second Appeal, the Apex Court in Santosh Hazari (supra) observed that- The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. The task of an appellate court affirming the findings of the trial court is an easier one. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. The task of an appellate court affirming the findings of the trial court is an easier one. The appellate court agreeing with the view of the trial court need not restate the effect of the evidence or reiterate the reasons given by the trial court, expression of general agreement with reasons given by the court, decision of which is under appeal, would ordinarily suffice (see Girijanandini Devi vs. Bijendra Narain Choudhury). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate court for shirking the duty cast on it. While writing a judgment of reversal the appellate court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial court musty weigh with the appellate court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies, on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate court is entitled to interfere with the finding of fact.(See Madhusudan Das Vs. Narayanibai). The rule is and it is nothing more than a rule of practice-that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lie, the appellate court should not interfere with the finding of the trial Judge on a question of fact. (See Sarju Pershad Ramdeo Sahu Vs. Jwaleshwari Pratap Narain Singh). (See Sarju Pershad Ramdeo Sahu Vs. Jwaleshwari Pratap Narain Singh). Secondly, while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it. We need only remind the first appellate courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate court continues, as before, to be a final court of facts; pure findings of fact remain immune from challenging before the High Court in second appeal. Now the first appellate court is also a final court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate court even on questions of law unless such question of law be a substantial one." 29. The first appellant court, in the impugned judgment and order dated 11.9.1996, did not show application of mind while mechanically re-appreciating statements of the PWs for a cryptic finding that the case of the appellant-plaintiff are based on hearsay and not reliable. Over and above, there is no finding of the first appellate court on all the issues by giving reason but the appeal was allowed only on the ground that the suit is barred by limitation after making some observations that the respondent-defendant's grant father took over by force khullakpaship from the great grand-father of the appellant-plaintiff about three generations ago. It is neither the pleaded case of the respondent-defendant that the respondent-defendant' grand-father took over khullakpaship of Lunkhambi village about three generations ago nor the respondent-defendant produced evidence in support of that fact. 30. It is neither the pleaded case of the respondent-defendant that the respondent-defendant' grand-father took over khullakpaship of Lunkhambi village about three generations ago nor the respondent-defendant produced evidence in support of that fact. 30. For the foregoing discussion, it is clear that for debarring the plaintiff from claiming hereditary office by Art. 107 of the Limitation act, there should be material pleading and supported by evidence that the respondent-defendant had been in adverse possession of the hereditary office for more than 12 years prior to the filing of the suit, but in the present case there is no office building of the hereditary office of Khunbu/Khullakpa of Lukhambi village unlike the hereditary office of Sevayet of the Hindu deity, other hereditary office of such similar nature and the office of Khullakpa or chief of Lukhambi village is rather abstract. It is the power or the enjoyment attached to the Khullakpa or Chief of Lukhambi village. As discussed above, i.e. the cases discussed above, in a civil suit plaintiff is not expected to prove his pleaded case beyond reasonable doubt but the high degree of probability of the pleaded case would be sufficient enough to shift the onus on the defendant and if the defendant-respondent does not succeed in shifting back the onus, plaintiff's burden of proof can safely be deemed to have been discharged. For the foregoing discussions and reasons, this substantial question No.2 is also decided in favour of the appellant-plaintiff; in the result the impugned judgment and decree of the first appellate court dated 11.9.96 passed in Civil Appeal No.9 of 1996 is set aside and the appeal is allowed. Corollary of allowing the Second appeal is that the judgment and decree of the trial court dated 31.5.1996 decreeing the Original Suit No.1 of 1995 is affirmed and Suit be decreed. Parties are to bear their own costs. Appeal allowed