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2022 DIGILAW 112 (MEG)

Sibilish M. Sangma v. G. H. A. D. C

2022-05-11

SANJIB BANERJEE, W.DIENGDOH

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JUDGMENT W. Diengdoh, J. - The appellants are said to be members of the Mangsang Khalcheng clan and the respondent No. 4 herein is a member of the Chambugong Wage clan. The dispute is primarily between the abovementioned. 2. What could be gleaned from the records is that, in the year 2001 after the death of the last recorded Nokma, Shri Train Marak of the Mangsang clan, the appellant, Smti. Sibilish M. Sangma representing the female line of the Mangsang Khalcheng clan had filed a petition before the Garo Hills Autonomous District Council (GHADC) to get her name registered as a joint Nokma of the Daronggre II-20(16) Akhing and the same was registered as GDC/REV/Case No. 8 A/C of 2001-2002. 3. At this juncture, it may be pointed out that the assertion of the appellants is that many years ago the Daronggre II-20(16) Akhing land was acquired by way of purchase from the Koches by the predecessors of the appellants and the respondent No. 4 jointly. The said Akhing was, since 1926, jointly represented continuously by Nokmas from the Mangsang clan firstly by Shri Jingran Marak and his wife Smti. Megan Sangma and now by Shri Dipson Ch. Marak along with Smti. Sibilish M. Sangma and Shri. Ringa Sangma from the Chambugong clan now represented by Smti. Somjimoni Ch. Marak who is the wife of late Ballendro Sangma since deceased. 4. For the purpose of elucidation, it would be proper to understand the subject matter of the controversy, that is, the dispute as regards the joint Nokmaship of the Akhing land. An Akhing has been defined in Garo Hills Regulation No. II of 1954 and Act No. 1 of 1960 as:- '(a) any land held by a clan or 'machong' under the custody of the head of the clan or 'machong' called 'Nokma' recognized as such by the District Council; (b) any land held collectively by a particular community of a particular village or group of villages which is under the custody of the head of the said community or group of villages called 'Nokma' recognized as such by the District Council'. 5. On consideration of the GDC/REV/Case No. 8 of 2001-2002, the Executive Member, Incharge Revenue rejected the claim of the appellants as petitioners vide order dated 07.01.2009. 5. On consideration of the GDC/REV/Case No. 8 of 2001-2002, the Executive Member, Incharge Revenue rejected the claim of the appellants as petitioners vide order dated 07.01.2009. Being aggrieved by this order, the appellants herein then preferred an appeal before the Chief Executive Member (CEM), GHADC, who vide order dated 05.02.2010 refused to interfere with the said order of the Executive Member. 6. Not being satisfied with the order passed by the Executive Member and the order passed in the related appeal before the Chief Executive Member, the appellants as petitioners then approached this Court by way of a writ petition being WP(C) No. 96(SH) of 2010 and vide order dated 14.09.2011, this Court set aside the order dated 07.01.2009 passed by the Executive Member and the order dated 05.02.2010 passed in the related appeal and remanded the matter to the Executive Member, GHADC for fresh trial. 7. On remand, the matter was registered as GHADC/REV 25 A/C of 2011 and was duly taken up by the Executive Member, Incharge Revenue who, upon appearance of the parties, framed as many as eleven issues. After examination of witnesses and upon hearing the parties, vide order dated 30.07.2015, the Executive Member came to a finding that the petitioners/appellants herein were never registered or got themselves recorded as Nokmas at any point of time and as such, no case had been made out in their favour. However, inspite of this finding, the Executive Member observed that due to the existence of an order dated 11.01.1956 passed by the then Chief Executive Member who has acknowledged that the Daronggre II 20(16) Akhing was the joint Akhing of the Chambugong and Mangseng clan, maintenance of status was directed to be observed. 8. The respondent No. 4 being dissatisfied with the order dated 30.07.2015 then preferred an appeal before the Chief Executive Member, GHADC in GHADC/REV. Appeal No. 54 A/C of 2015 and after consideration of the same, the Chief Executive Member vide order dated 08.06.2016 allowed the same holding that Daronggre II-20 (16) Akhing as A'Mate (Single) Akhing of Chambugong clan only. 9. Responding to the said order dated 08.06.2016 passed by the Chief Executive Member, GHADC, the appellants as petitioners have approached this Court by way of writ petition being WP (C) No. 210 of 2016 and this Court after hearing the parties has, vide order dated 11.03.2019 upheld the same. 10. 9. Responding to the said order dated 08.06.2016 passed by the Chief Executive Member, GHADC, the appellants as petitioners have approached this Court by way of writ petition being WP (C) No. 210 of 2016 and this Court after hearing the parties has, vide order dated 11.03.2019 upheld the same. 10. The appellants have now come before us on appeal against the order dated 11.03.2019 referred to above and has also simultaneously assailed the order dated 04.03.2020 passed by the learned Single Judge in MC(Review Pet) No. 7 of 2019 which is an application for review of the order dated 11.03.2019 and which was dismissed. 11. We have heard Mr. A.S. Siddiqui, learned Sr. counsel for the appellants along with Mr. A.G. Momin, learned counsel, who at the outset, has asserted that as far as the Daronggre II-20(16) Akhing land is concerned, it was under the control and possession of the joint Nokmas of the Mangseng and Chambugong clans. This was fortified by the map of the said Akhing which map bears the signature of G.D. Walker, the then Deputy Commissioner dated 15.6.26 and of Asansing Marak, Mouzadar, dated 13.5.26. The said map purportedly described the location of Daronggiri Aking of Ringa Sangma and Jingsan Marak Nokma. The boundaries of the said Akhing was also detailed and confirmed by W. Shaw, the then Deputy Commissioner on 9-6-32. Yet another document relied upon by the appellants is the genealogical tree of Jingran Nokma of II-20(16) Daronggiri village said to have also been confirmed by W. Shaw, Deputy Commissioner on 16/3/33. 12. The boundaries of the said Akhing was also detailed and confirmed by W. Shaw, the then Deputy Commissioner on 9-6-32. Yet another document relied upon by the appellants is the genealogical tree of Jingran Nokma of II-20(16) Daronggiri village said to have also been confirmed by W. Shaw, Deputy Commissioner on 16/3/33. 12. Coming to the order dated 11.01.1956, wherein on an application for partition of the said Akhing Daronggre Akhing land II-20(16), an observation was clearly made by the then Chief Executive Member, GHADC that the Nokmas, that is, Ringa Nokma and Jinsang Nokma are the joint Nokmas of the same Akhing land which is indisputable, the same has been brought to the fore by the appellants to say that although the said order was challenged by the respondent No. 4 before the Executive Member, who has held that the Chief Executive Member who is an appellate authority could not have passed the said order, however, only the issue of the authority of the Chief Executive Member to pass the order was decided, but the contents of the order itself was not challenged nor the question answered as far as the joint Nokmaship of the parties over the said Akhing is concerned, further submits Mr. Siddiqui. 13. Mr. Siddiqui has again submitted that in case of succession of Nokma, the District Council is empowered to decide the same in accordance with the relevant provisions of the Garo Hills Autonomous District Council (Social Custom and Usages) Validating Act, 1958. Before the year 1951, the Deputy Commissioner is the competent authority to decide such issues, by this Act, the Chief Executive Member is the appellate authority in this regard. However, the respondent No. 4 while contending that the Chief Executive Member could not have passed the order in the year 1956 as he is an appellate authority for which reliance was placed on two decisions of the Assam High Court, which judgments are of the year 1953 and 1954, the same belies logic as the Chief Executive Member was designated as an appellate authority only under the provision of the 1958 Act, while the order in question was of the year 1956. Therefore, the decisions relied upon has no relevance to the matter in issue. 14. Therefore, the decisions relied upon has no relevance to the matter in issue. 14. The appellants has also questioned the observation of the learned Single Judge at paragraph 20 of the impugned judgment to the extent that it was concluded that when a joint Akhing is established, Nokmas of both clans are mentioned and their family tree is also incorporated therein. This according to the appellant is not correct, inasmuch as, it was contented that it has been the practice in the District Council in some cases to register the names of the Nokma in a separate register as was done in the case of the appellant's clan while listing the genealogical tree of Jingran Nokma, authenticated by W. Shaw, Deputy Commissioner, on 16.03.33. It is further submitted that this document dated 16.03.33 was never challenged as to its authenticity. 15. That the authenticity of the certificate issued by the Executive Member Incharge Revenue dated 13.12.2003 was not verified from the original records with the District Council, thereby leading the learned Single Judge to come to the conclusion that the basis of issuance of the same could not be substantiated by the appellants is also not a correct finding asserts the appellants, as apart from the said certificate, the map dated 13.2.26 as well as the genealogical tree of Jingsan Nokma dated 16.03.33 are very much part of the records available with the District Council. 16. Per contra, Mr. K.S. Kynjing, learned Sr. counsel along with Ms. A.D. Syiem, learned counsel for the respondent No. 4 in reply has reverted to the findings of the Court of the first instance, that is, the Executive Member Incharge Revenue who, after taking into consideration the petition, the written statement and more importantly, the documents and on relevant issues having been framed, the very first issue itself, that is, 'Whether Daronggre/Daronggiri A'khing was jointly acquired by two clans viz, Chambugong and Mansang clans or not?' was discussed and the finding is that the said Akhing was never jointly acquired but was all along in the possession of the Chambugong clan. 17. Mr. Kynjing has further submitted that the claim of the appellants as joint Nokmas along with the Chambugong clan was never substantiated by relevant documents. 17. Mr. Kynjing has further submitted that the claim of the appellants as joint Nokmas along with the Chambugong clan was never substantiated by relevant documents. On the other hand, the fact that the Chambugong clan has been held to be the owner of the said Daronggre Akhing land by relevant and authentic documents has also been proved by referring to the first official document of 30.04.1921 which is an order by the Arbitrators which had indicated that though Jingran Marak was a party in that case, the Akhing was however given only to Ringa Nokma and there was no complaint by Jingran Marak to this. In the same year, the map of the said Daronggre II-20(16) Akhing was prepared and only the name of Ringa Sangma Nokma was shown. 18. As opposed to this, that the appellants/petitioners have tried to prove that the Mangsang clan are the joint Nokma of the said Akhing and in this regard have produced the document dated 13.5.1926 which is a report of the Mouzadar indicating that Ringa Sangma Nokma has no objection to joint Nokmaship with Jingran Marak over Daronggre II-20(16) Akhing. However, this document is doubtful as to its authenticity as on the body of the said report, the signature of Ringa Sangma Nokma is missing. Even the countersignature of the clan elders (Maharis) of the Chambugong clan could not be seen in the said document, which only goes to show that the said document is a fabricated and false one, further submits Mr. Kynjing. 19. The final submission of Mr. Kynjing is that as per Garo customs and practice, the Nokma must reside in his Akhing. This custom has also found mention in the book on the 'Principles of Garo Law' by Jangsan Sangma, wherein at page 24-25 under Chapter IX it has been written as follows: '58. NOKMA AND HIS RIGHT. - Though the land belongs also to the community the nokma and his wife are looked upon as the owners of the land and the nokma would jealously guard even the smallest patch of his akhing. It is the duty of the nokma to distribute akhing land for jhumming amongst the families lying in the village under him. His family is the pith of the clan. Certain social festival must start at his house. It is the duty of the nokma to distribute akhing land for jhumming amongst the families lying in the village under him. His family is the pith of the clan. Certain social festival must start at his house. He must reside in a village which is in his akhing.' It is evident from the records that Jingran Marak Nokma from the Mansang clan has fled to Goragre with his wife Megan Sangma, though Megan Sangma came back after the death of Jingran Marak, but as they had abandoned the Akhing, whatever rights they possessed stood relinquished by the operation of Garo customary law and practice. 20. Mr. S. Dey, learned counsel for the respondents No. 1-3, the Garo Hills Autonomous District Council (GHADC) has made only one submission that according to Garo custom, there are four classes of Akhing land, but nowhere in the records is it shown that an Akhing can be jointly acquired by purchase. 21. Having heard the parties, we have given considerable thought to the submission and contention advanced and since the fight is basically over the control of the Akhing land known as Daronggre -20(16), the first question is whether the clan of the appellants, that is, the Mangsang clan have jointly acquired the said Akhing land Daronggre and therefore, the Nokmas of the two clans, Chambugong and Mangsang can be said to be joint Nokmas over the same. 22. It is an admitted fact that the said Akhing land was originally acquired by Darong Sangma and his wife Khimdi Marak from one Breko Bachan Satri Batri who has borrowed ? 200/- and two pairs of ploughing bulls from Darong Sangma. Since the land was not suitable for wet cultivation, the said Breko Bachan Satri Batri who is from the Koch community had handed over the said land to Darong Sangma as a repayment of the said debt owed. 23. The land formerly called 'Allagiri' was then known as 'Daronggre' in honour of Darong Sangma. It can be said that this Akhing falls under the category of 'A.Mate Land'. According to Dr. 23. The land formerly called 'Allagiri' was then known as 'Daronggre' in honour of Darong Sangma. It can be said that this Akhing falls under the category of 'A.Mate Land'. According to Dr. Julius L.R. Marak, in his book on 'Garo Customary Laws and Practices' (revised and enlarged edition 2000) at page 174 it has been noted as under: '...The A.king Lands of the Garos can be divided mainly into four classes as folows (sic follows) according to the nature of the right that one has to possess: (i) A.Mate Land (a) A.Mate A.king land is a plot of land acquired by an individual by the right of purchase or through donation to some individual.....' 24. The twist in the tale in this whole episode is that the appellants claim that the said Akhing is a joint property initially based only on the fact that their first Nokma was Darong Marak whose wife was Midi Sangma. Apparently, because the name Darong Sangma who is from the Chambugong clan is similar to the name of Darong Marak who is from the Mangsang clan, the appellants laid claim to the said Akhing land based on this premise claiming that it was their fore parents who has acquired the said Akhing. 25. As noted by the Executive Member, the first recorded document of 30.4.1921 shows that the said land was under the control of Ringa Sangma of the Chamburong clan and though Jingran Marak was party to the case, no objection was made thereto, therefore the matter should have ended there. Even in the recorded map of the said Daronggre II-20(16) Akhing made in the year 1921 along with the boundaries encompassing the land, the only name that appears is that of Ringa Sangma and nowhere does the name of Jingran Marak appeared in the said map. 26. The said Daronggre Akhing was however officially registered in favour of Ringa Sangma only on 29.5.1925 which was witnessed by as many as eight important authorities like Laskers, Nokmas and Sardars who were present at the time of demarcation of the boundary. The same has been approved by the Deputy Commissioner. 27. As opposed to this, the appellants have relied on the report dated 13.5.1926 which is a purported report of the Mouzadar stating that Ringa Sangma Nokma has no objection to Jingran Marak being the joint Nokma of the Daronggre Akhing. The same has been approved by the Deputy Commissioner. 27. As opposed to this, the appellants have relied on the report dated 13.5.1926 which is a purported report of the Mouzadar stating that Ringa Sangma Nokma has no objection to Jingran Marak being the joint Nokma of the Daronggre Akhing. However, in evidence, it has been proved that the alleged report does not have the signature of Ringa Sangma as well as the important Chra (male members) of the Chambugong clan. The said report was also not clear as to the basis on which it was made, whether on a complaint or on the order from a competent authority. This proved that the said report was prepared only on the own initiative of the said Mouzadar which has no relevance in law. 28. The claim of the appellants on the issue of joint Nokmaship has been demolished in evidence both ocular and documentary and accordingly, the Executive Member while deciding the issue of joint Nokmaship have come to the conclusion that the claim of the respondent No. 4 is more genuine and acceptable. 29. On the order dated 11.01.1956 passed by the Chief Executive Member (C.E.M.) wherein in an application for partition of the said Daronggre Akhing, it was observed that both parties are present, that is, Ringa Nokma and Jasang (sic Jingsan) Nokma. However, while coming to the decision that the said partition could not be affected as both the parties and the Maharis have to agree, to which Ringa Nokma is not in favour of partition, an observation in the order was made to the effect that '...The Nokmas are the joint nokmas of the same aching land. This is indisputable...' It is this observation that has given a lifeline to the appellants to pursue their case contending that the issue of joint Nokmaship of the said Akhing land was decided by an authority who is no less than the Chief Executive Member of the District Council. 30. However, as has been held by the Executive Member, vide order dated 30.07.2015, the order dated 11.01.1956 cannot be considered an order at all since the CEM does not have original jurisdiction being an appellate court. 30. However, as has been held by the Executive Member, vide order dated 30.07.2015, the order dated 11.01.1956 cannot be considered an order at all since the CEM does not have original jurisdiction being an appellate court. This finding of the said Executive Member was however attacked by the appellants who has contended that the authority of the Chief Executive Member as an appellate authority was derived as a consequent of section 8(2) of the Garo Hills Autonomous District (Social Customs and Usages) Validating Act, 1958 which provides as follows: - '8. (1) Whenever a vacancy occurs in the office of a Nokma of any Akhing or there arises any dispute in the matter of succession of Nokmaship of any Akhing or any dispute with regard to any other matter relating to or connected with, any Akhing and the boundaries thereof, the matter shall be referred, in the first instance, to the Revenue Member for disposal in accordance with the customary practice and usages of the Garos. (2) Any person aggrieved at the order of the Revenue Member under sub-section (1) above may prefer an appeal to the Chief Executive Member within 60 days from the date of order.' Therefore, in the year 1956, the appellate power has not yet been conferred upon the Chief Executive Member, the finding of the Executive Member is accordingly flawed. 31. Irrespective of the findings of the Executive Member as regard the appellate authority of the Chief Executive Member, in the order dated 08.06.2016 which is an appeal before the Chief Executive Member against the order dated 30.07.2015 passed by the Executive Member in Case No. 25 A/C of 2011, the learned Chief Executive Member while referring to the order dated 11.01.1956, has specifically referred to the Hon'ble High Court's order dated 12.05.1954 passed in Civil Rule No. 172 of 1953, published in 'The Unreported Cases [Assam High Court 1994-96 (sic 1954-1956)] Vol.2, page 191' wherein in a case between the predecessor-in-interest of the relevant parties herein, the Assam High Court has held that the Chief Executive Member has no jurisdiction to hear a partition suit. In such an instance, it was held that the order dated 11.01.1956 was passed without jurisdiction and is therefore void. In such an instance, it was held that the order dated 11.01.1956 was passed without jurisdiction and is therefore void. This Court, on consideration of the same having noticed the order passed by the Assam High Court as indicated herein is also inclined to agree that the order dated 11.01.1956 (supra) would not have any relevance, as far as the claim of the appellant is concerned, inasmuch as, once the authority who has passed the order is deemed to have done so without jurisdiction, notwithstanding the fact that the essence of the order was not challenged, the order by itself having failed to withstand the scrutiny of law, it cannot be said that only the authority of the Chief Executive Member is questioned, but the order passed by him not having been challenged is maintained. This is the proposition of the learned counsel for the appellant which cannot be sustained by this Court. 32. In the considered view of this Court, the learned Single Judge has delved into the matter extensively and has covered all the bases and, therefore, the judgment impugned cannot be faulted in any way. 33. In view of the observations made above, this Court finds that the appellants have not been able to make out a case for interference with the impugned judgment. The appeal fails. W.A. No. 17 of 2020 is hereby dismissed. The related challenge to the order in the review petition is also dismissed. 34. There shall be no order as to costs.