Research › Search › Judgment

Gauhati High Court · body

2018 DIGILAW 1559 (GAU)

Zhekiye Village v. Kiyekhu Village

2018-10-30

ACHINTYA MALLA BUJOR BARUA

body2018
JUDGMENT : ACHINTYA MALLA BUJOR BARUA, J. 1. Heard Mr. A. Zhimomi, learned counsel for the appellant Zhekiye village as well as Mr. C.T. Jamir, learned senior counsel for the respondent Kiyekhu village. It is stated that the Zhekiye village was earlier curved out from the Kiyekhu village sometime in the 1920's or there before leading to the circumstance where there now exists two villages, namely, Zhekiye village and Kiyekhu village. A dispute had arisen between the two villages as regards their inter-se boundary and in respect thereof, there exists an order dated 13.7.1929 of J.H. Hutton, the then Deputy Commissioner of Naga Hills district passed in Pol. Case No. 16/1929. The said order of 13.7.1929 inter-alia, described certain landmarks and provided that the landmarks described therein are fixed as the boundary between the Zhekiye village and Kiyekhu village. 2. It is also accepted that the order of 13.7.1929 of J.H. Hutton, the then Deputy Commissioner was confirmed by the order dated 10.12.1935 of N.L. Bor, the subsequent Deputy Commissioner, which was passed in Pol. Case No. 82/1935. 3. In the aforesaid background, a dispute was raised by the villagers of Zhekiye village as regards the maintenance of the boundary between the two villages, which resulted in a proceeding before the Dobasis, which is an accepted authority under the Rules for the Administration of Justice and Police in Nagaland. The judgment and order dated 25.02.1993 of the Dobasis resulted in favour of Zhekiye village and the same was assailed by the Kiyekhu village before the Deputy Commissioner, resulting in Case No. 05/1995. The Deputy Commissioner, Zunheboto before whom the said appeal was filed, had preferred to refer the dispute for its adjudication before the Political Assistant, which existed at that relevant point of time. The decision of the Political Assistant dated 4.7.1995 resulted in an equal division of the land between the Zhekiye village and Kiyekhu village. The said decision of the Political Assistant in Case No. 05/1995 dated 04.07.1995 was assailed by the Zhekiye village before the Additional Deputy Commissioner, Zunbehoto. As the appropriate Presiding Officer was not available, the proceeding was transferred to the Court of Additional Deputy Commissioner, Dimapur resulting in Civil Appeal No. 01/1995. 4. In course of the proceeding before the Additional Deputy Commissioner (J), Dimapur, the Zhekiye village had raised an issue that by the order dated 13.07.1929 in Pol. As the appropriate Presiding Officer was not available, the proceeding was transferred to the Court of Additional Deputy Commissioner, Dimapur resulting in Civil Appeal No. 01/1995. 4. In course of the proceeding before the Additional Deputy Commissioner (J), Dimapur, the Zhekiye village had raised an issue that by the order dated 13.07.1929 in Pol. Case No. 16/1929, the boundary between the two villages had already been determined by J.H. Hutton, the then Deputy Commissioner and it being so, the proceeding before the Additional Deputy Commissioner (Judicial) (herein after, J in short), Dimapur is not maintainable as it is being hit by the principle of res-judicata Accordingly, it was the stand of the Zhekiye village that no further adjudication of the boundary dispute between the two villages can be made as the same was already determined in the order dated 13.7.1929 of the then Deputy Commissioner in the aforesaid Pol. Case No. 16/1929. In the resultant situation, the Additional Deputy Commissioner (J), Dimapur had passed the order dated 09.09.1996 in Civil Appeal No. 01/1995, whereby it was provided that additional evidence be taken as regards the existence of the judgment and order dated 13.07.1929 of the then Deputy Commissioner, J.H. Hutton. The said order of 09.09.19% of the Additional Deputy Commissioner (J), Dimapur was assailed by the Zhekiye village, resulting in a writ petition before this Court being Civil Rule No. 174(K)/1996. The said writ petition was given a final consideration by the judgment and order dated 24.7.1997, wherein it was provided as such:- "Having said enough, I now remit this case to the learned Addl. Deputy Commissioner (J), Dimapur to decide as to whether the present proceeding is hit by the principles of res-judicata, accepting the order dated 13.7.1929 passed by J.H. Hutton, the then Deputy Commissioner, Naga hills district in Political case No. 16/1929 and affirmed by N.L. Bor, the then Deputy Commissioner, Naga hills district by its order dated 10.12.1935 passed in Political case No. 82/35 is valid and in existence. Consequently, the order dated 9.9.1996 passed by Ld. A.D.C. (J) Dimapur as quoted above is hereby set aside." 5. Consequently, the order dated 9.9.1996 passed by Ld. A.D.C. (J) Dimapur as quoted above is hereby set aside." 5. Being aggrieved by the aforesaid judgment and order of this Court in Civil Rule No. 174(K)/1996 to the extent that the existence of the order passed by J.H. Hutton, the then Deputy Commissioner was accepted, an appeal was carried out by the Kiyekhu village before the Supreme Court resulting in Civil Appeal No. 57/1999. 6. The Supreme Court, by its judgment and order dated 06.01.1999 provided as follows:- "However, since the High Court took the trouble of actually obtaining the old registers in which the said two orders are recorded, that part of the High Court's order which records that those two orders are genuine documents as recorded in the original register produced before the High Court, need not be disturbed. The Additional Deputy Commissioner, however, will decide all other questions including the legal effect of these documents in accordance with law in the pending appeal" 7. A reading of the judgment and order of the Supreme Court dated 06.01.1999 would require us to arrive at a conclusion that the question as regards the existence and validity of the order dated 13.7.1929 of J.H. Hutton, the then Deputy Commissioner was accepted to be a valid order. Having accepted so, the Supreme Court further provided that upon the matter being remanded back, the Additional Deputy Commissioner (J) will decide all other questions, including the legal effect of these documents in accordance of law, which has to be understood to be the two orders dated 13.7.1929 of J.H. Hutton, the then Deputy Commissioner passed in Pol. Case No. 16/1929 and the order dated 10.12.1935 of N.L. Bor, the then Deputy Commissioner in Pol. Case No. 82/1935. In other words, any legal issue other than the issue of the existence and validity of the aforesaid two orders are to be decided by the Additional Deputy Commissioner, but at the same time, the Deputy Commissioner would also require to decide the legal effect of the aforesaid two orders. 8. In the resultant situation upon the matter being remanded back, the Additional Deputy Commissioner (J) had passed the order dated 30.9.2002 in Civil Appeal No. 01/1995 (Zunheboto). The said judgment and order dated 30.09.2002 of the Additional Deputy Commissioner (J) in Civil Appeal No. 01/1995 (Zunheboto) is assailed in this appeal by the Zhekiye village. 9. 8. In the resultant situation upon the matter being remanded back, the Additional Deputy Commissioner (J) had passed the order dated 30.9.2002 in Civil Appeal No. 01/1995 (Zunheboto). The said judgment and order dated 30.09.2002 of the Additional Deputy Commissioner (J) in Civil Appeal No. 01/1995 (Zunheboto) is assailed in this appeal by the Zhekiye village. 9. As already noted, the scope for determination by the Additional Deputy Commissioner (J), Dimapur has been limited by the Supreme Court in its judgment and order dated 06.01.1999 to the extent as indicated above i.e. the Additional Deputy Commissioner (J), shall decide all other issues involved in the dispute except for the issue as to the existence and validity of the two orders dated 13.7.1929 of J.H. Hutton, the then Deputy Commissioner and 10.12.1935 of N.L. Bor, the subsequent Deputy Commissioner and further that the Additional Deputy Commissioner (J) would also determine the legal effects of the aforesaid two documents. Accordingly, this Court examines the correctness of the order dated 30.09.2002 of the Additional Deputy Commissioner (J), Dimapur within the confines of the aforesaid requirement provided by the Supreme Court. 10. The learned counsel for the appellant contends that the Additional Deputy Commissioner (J), Dimapur while passing the judgment and order dated 30.9.2002 had exceeded the aforesaid limitation imposed by the Supreme Court in its judgment and order dated 6.1.1999 to the effect that the Additional Deputy Commissioner (J) had de-novo decided the issue by determining the boundary between the two villages. 11. Mr. C.T. Jamir, learned senior counsel appearing for the respondent Kiyekhu village on the other hand justifies the judgment and order passed by the Additional Deputy Commissioner (J), Dimapur on the premises that the Additional Deputy Commissioner (J) had rightly re-determined the boundary between the two villages inasmuch as, the records as well as the evidence on record reveals that, in fact, there was no determination of the boundary between the two villages by J.H. Hutton, the then Deputy Commissioner. To that extent, reliance has been placed upon the evidence led by some of the survivors of the period 1929, who were present along with J.H. Hutton at the time when the said decision dated 13.07.1929 was made. Mr. To that extent, reliance has been placed upon the evidence led by some of the survivors of the period 1929, who were present along with J.H. Hutton at the time when the said decision dated 13.07.1929 was made. Mr. Jamir, learned senior counsel also raises an issue that the Supreme Court in its judgment and order dated 06.01.1999 had required the determination of the legal effect of documents referred therein, meaning thereby that it does not remained confined to the two orders dated 13.07.1929 and 10.12.1935 passed by the two then respective Deputy Commissioners. 12. Heard the learned counsel for the parties in detail. 13. The first and foremost consideration before this Court in determining this appeal would be as to whether the Additional Deputy Commissioner (J), Dimapur in passing the judgment and order dated 30.09.2002 had exceeded the limitation and restriction imposed by the Supreme Court while remanding the matter back for its adjudication. The said issue assumes further relevance in the background of the submission of Mr. CT Jamir, learned senior counsel appearing for the respondent Kiyekhu village reiterating the stand that the orders dated 13.07.1929 and 10.12.1935 of the then two respective Deputy Commissioners does not exist. 14. The said submission of Mr. Jamir, learned senior counsel as regards the non existence of the two orders dated 13.07.1929 and 10.12.1935 of the two then respective Deputy Commissioners would have to be looked from the background of the conclusion arrived at by this Court in its judgment and order dated 24.07.1997 in Civil Rule No. 174(K)/1996 and the judgment and order dated 06.01.1999 of the Supreme Court in Civil Appeal No. 57/1999. In its judgment and order dated 24.07.1997 in Civil Rule No. 174(K)/1996, this Court had arrived at a categorical conclusion based upon the records produced that the orders dated 13.07.1929 passed by J.H. Hutton, the then Deputy Commissioner in Pol. Case No. 16/1929 and dated 10.12.1935 passed by N.L. Bor, also the then Deputy Commissioner in Pol. Case No. 82/1935 are valid and are in existence. In the said context, the Supreme Court also arrives at a conclusion that the High Court having taken the trouble of going through the old registers as regards the two orders and having passed the said order, no interference in such conclusion is required. Case No. 82/1935 are valid and are in existence. In the said context, the Supreme Court also arrives at a conclusion that the High Court having taken the trouble of going through the old registers as regards the two orders and having passed the said order, no interference in such conclusion is required. Accordingly, in view of the said categorical conclusion of the High Court as well as the Supreme Court, this Court unable to accept the contention of the respondent Kiyekhu village that a further question as to the existence of the two aforesaid orders dated 13.7.1929 and 10.12.1935 is required to be adjudicated again. 15. Accordingly, the Court is of the view that the said two orders are in existence and the same are valid for the purpose of this proceeding. As regards the other aspect, the Supreme Court in its judgment and order dated 6.1.1999 had provided that upon the matter being remanded back, the Additional Deputy Commissioner (J), shall decide all the other issues involved in the dispute. The said provision has to be understood from the point of view that the Additional Deputy Commissioner (J), will decide the dispute by accepting the position that the two orders dated 13.7.1929 and 10.12.1935 are valid orders and they are in existence and having accepted so, the other issues involved in the dispute between the parties would be decided. 16. The Court has taken note of the written statement of the respondent Kiyekhu village, in the proceeding before the Additional Deputy Commissioner (J) wherein in paragraph 13(F), a specific stand has been taken that the respondent village is in continuance and uninterrupted possession over the disputed land in question for over 60 years and therefore, even assuming the orders dated 13.7.1929 and 10.12.1935 to be valid, still the respondent village had acquired a right over the disputed land under the law of adverse possession. 17. From the said stand taken by the respondent village in their written statement, it has to understand that the other issues involved in this dispute as referred by the Supreme Court in its judgment and order dated 6.1.1999 also includes the claim of the respondent village as regards acquiring the right over the disputed land under the law of adverse possession. From the said point of view, the provision of the Supreme Court in its judgment and order dated 6.1.1999 that the Additional Deputy Commissioner (J) shall also decide the legal effect of the documents referred, meaning thereby that the legal effects of the two orders dated 13.7.1929 and 10.12.1935 would have to be determined in the context of the claim of the respondent Kiyekhu village as regards the adverse possession over the disputed land. 18. In the aforesaid context, when the judgment and order dated 30.09.2002 of the Additional Deputy Commissioner (J), Dimapur in Civil Appeal No. 01/1995 (Zunheboto) is examined, it is taken note of that the Additional Deputy Commissioner (J) had relied upon the oral evidence of the witnesses, mainly of the respondent Kiyekhu village, including certain witnesses who had accompanied J.H. Hutton at the time of delivering the order dated 13.07.1929, and had arrived at a conclusion that the order dated 13.07.1929 of J.H. Hutton, the then Deputy Commissioner is not sustainable inasmuch as the said order was arrived at without taking the appropriate evidence and that the respective parties were not given a due opportunity of hearing before such order was passed. 19. The Court is of the considered view that such a conclusion could not have been arrived at by the Additional Deputy Commissioner (J), Dimapur inasmuch as, the earlier order dated 13.7.1929 was also passed by a co-ordinate Court and therefore, while examining its legal effect upon the dispute raised by the parties, the Additional Deputy Commissioner (J), Dimapur could not have been gone to the extent of determining the validity and sustainability of the said order dated 13.7.1929. Such a position, if accepted, would lead to a disastrous consequence wherein it would be an acceptable proposition that a co-ordinate Court would have the jurisdiction to determine the legality and validity of an earlier order passed by another co-ordinate Court between the same parties involving the same issue, which had been in the meantime been finally decided. Such a concept if accepted would also be contrary to the principles of res-judicata. 20. Such a concept if accepted would also be contrary to the principles of res-judicata. 20. Further, the Supreme Court in its order dated 6.1.1999 had also provided that upon a matter being remanded back to the Additional Deputy Commissioner (J), an adjudication be also done as regards the legal effect of the two documents, i.e., the order dated 13.7.1929 of J.H. Hutton as well as the order dated 10.12.1935 of N.L. Bors, the two then Deputy Commissioners. 21. In order to understand as to what the Additional Deputy Commissioner (J) is required to do with regard to the aforesaid two orders we would have to examine the meaning of the expression legal effect. As per the Black's Law Dictionary, the word legal amongst others means "of relating to, or involving law, generally falling within the provisions of law". The word effect, amongst others means "something produced by an agent or cause result, outcome, or consequence". Accordingly, the expression "legal effect" has to be understood to mean "the result, outcome or consequence of something within the provisions of law". 22. When the aforesaid expression of the meaning legal effect is taken into consideration to understand as to what the Additional Deputy Commissioner (J) is required to do with regard to the orders dated 13.07.1921 and 10.12.1935 of the two then Deputy Commissioners, we have to conclude that the Additional Deputy Commissioner (J) shall only determine as to what would be the result, outcome or consequence of the said two orders by treating the two orders to be valid and to be in existence and cannot go further and determine as to whether the said two orders are in existence or as to whether the said two orders are valid or not. 23. In such view of the matter, the conclusion arrived at by the Additional Deputy Commissioner (J), Dimapur in re-determining the order dated 13.7.1929 passed by J.H. Hutton, the then Deputy Commissioner would have to be unacceptable. But at the same time, the Court also cannot be oblivious to the aspect that the respondent Kiyekhu village had also raised an issue of adverse possession over the disputed land in question. But at the same time, the Court also cannot be oblivious to the aspect that the respondent Kiyekhu village had also raised an issue of adverse possession over the disputed land in question. Even if it is accepted that the boundary between the two villages had been determined in the order dated 13.07.1929 by J.H. Hutton, the then Deputy Commissioner, still it cannot be said that over the years since the year 1929 there could not have been any change as regards the possession of the land by the villagers of the two villages. As it is a possible proposition that some villagers of Zhekiye village may have been in possession over some land of Kiyekhu village and at the same time, some villagers of Kiyekhu village may have now been in possession over some land of Zhekiye village, which would be at a variance from the boundary contained in the order dated 13.07.1929, even though the boundary may have been determined in the order dated 13.07.1929 of J.H. Hutton, the then Deputy Commissioner, the claim for adverse possession by the respondent Kiyekhu village deserves a proper determination. 24. As regards the question of adverse possession, it has been brought to notice by Mr. C.T. Jamir, learned senior counsel for the respondent that while deciding the issue Nos. 6 and 7, the Additional Deputy Commissioner (J) had arrived at the conclusion that having made an exhaustive discussion about the adverse possession and traditional boundaries, the detail thereof clearly spell out that the Kiyekhu village is the owner of the disputed area. But it noticed that such conclusion was arrived at by the Additional Deputy Commissioner (J) merely referring to certain comprehensive discussion that may have been made about the adverse possession and existence of traditional boundaries between the two villages. But, upon a perusal of the evidence on record, no such specific evidence is discernible which would enable the Court to arrive at a conclusion as regards the claim of adverse possession by the Kiyekhu Village. Adverse possession is a question of fact to be determined on the basis of evidence on record as to who is under possession and whether such possession amounts to an adverse possession. In the absence of such determination, a conclusion as regards adverse possession cannot be arrived at merely upon a comprehensive discussion as sought to be made by the Additional Deputy Commissioner (J). In the absence of such determination, a conclusion as regards adverse possession cannot be arrived at merely upon a comprehensive discussion as sought to be made by the Additional Deputy Commissioner (J). 25. Accordingly, a conclusion is arrived that the conclusion of the Additional Deputy Commissioner (J) as regard the validity and acceptability of the order dated 30.07.1929 of the then Deputy Commissioner is not acceptable and further that, there is a lack of appropriate evidence to determine the claim of adverse possession made by the Kiyekhu village. Consequently, the judgment and order dated 20.9.2002 of the Additional Deputy Commissioner (J), Dimapur in Civil Appeal No. 1/1995 (Zunheboto) is set aside. Upon the said judgment being set aside, the matter needs to be remanded back for proper adjudication as regard the claim of adverse possession by the Kiyekhu village over the disputed land in question. 26. When the evidence on records is examined as regards the question of adverse possession by the villagers of either of the two villages over the land of the other village, I find that there is no complete and comprehensive evidence available on record which would indicate or enable the Court to determine the question of adverse possession by the villagers of Zhekiye village over the land of Kiyekhu village as well as by the villagers of Kiyekhu village being in possession over the land of Zhekiye village. In absence of such evidence on record, it is difficult to determine the claims of the adverse possession by the villagers of Kiyekhu village. 27. It is clarified that upon the matter being remanded back, the claims of adverse possession by the respective villagers shall remain confined to the disputed land involved in this proceeding and the same shall not be expanded to any other land beyond the disputed land involved in this proceeding. As the matter is being remanded back for the purpose of determining the claim of adverse possession on the premises that appropriate and adequate evidence is presently unavailable to determine the question, we did not express any view on the merit of the evidence already available on record as regards the determination of the claim of adverse possession. As the matter is being remanded back for the purpose of determining the claim of adverse possession on the premises that appropriate and adequate evidence is presently unavailable to determine the question, we did not express any view on the merit of the evidence already available on record as regards the determination of the claim of adverse possession. It is provided that while re-determining the question of adverse possession as claimed in the proceeding, the Additional Deputy Commissioner (J) shall rely upon all such evidence as regards the claim of adverse possession that may already available on record with a further provision that if the evidence on record is inadequate to determine all the respective claims of possession of land in the disputed area which may be adverse, additional evidence, as may be necessary may be taken. 28. It is stated that presently the judicial function of determining the civil appeal is being discharged by the learned District Judge, Zunheboto. As the disputed land is within the territorial jurisdiction of Zunheboto District and there being a judicial forum available therein, I am of the view that the matter on being remanded back be adjudicated by the learned District Judge, Zunheboto. As it is a long pending dispute at least from the year 1992, if not, from the year 1929. between the two villages and as of now as the issue for determination had been reduced to the claim for adverse possession, it is provided that the required adjudication be done and completed within a period of 9 months from today. The learned District Judge, Zunheboto upon receiving of the records shall issue notice upon the both villages and upon notice being issued, the two villages are directed to participate in the adjudication proceeding without causing any further delay in the matter. 29. LCRs be sent back including a copy of the Paper Book by retaining the original Paper Book. In terms of the above, the appeal stands disposed of.