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2022 DIGILAW 259 (MEG)

Hesilla D. Shira v. Chebit Ch. Momin

2022-09-28

H.S.THANGKHIEW

body2022
JUDGMENT 1. This Petition under Rule 6 of the Meghalaya High Court (Jurisdiction over District Council Courts) Order, 2014 read with Article 227 has been filed against the order dated 25.09.2019, passed by the Judge District Council Court, Tura in T.S. Appeal No. 3 of 2014. 2. The brief facts are that the predecessor of the petitioner, namely one (L) Herison Ch. Momin, as plaintiff had instituted a suit being T.S. No. 4 of 2007, for declaration of right, title and interest over the suit land situated at Chisrigre, P.O Garobadha, West Garo Hills, which stood in the name of the mother of the plaintiff (L) Roheni Ch. Momin which was covered by Periodic Patta No. 6, Dag No. 22. The claim of the plaintiff was that his parents having only two sons and no female issue, had adopted the grandmother of the respondent in the year 1950, who however, as per the pleadings, deserted the house of the plaintiff's parents. As such, after the death of the parents, the plaintiff had sought for mutation of the suit land before the Revenue Officer, GHADC, in his name, which however, was dismissed by order dated 28.06.2007. A Title Suit that is T.S. No. 4 of 2007, was then filed by the plaintiff (L) Herison Ch. Momin, the predecessor in interest of the petitioner, before the Subordinate District Council Court, Tura, which was decreed in his favour by judgment dated 25.02.2014, holding him to be the owner of the suit land. The defendant who is the predecessor in interest of the respondent herein, being aggrieved preferred an appeal before the Court of the Judge District Council Court, Tura, which was numbered as T.S. Appeal No. 3 of 2014. The learned Court of the Judge then by judgment dated 25.09.2019, which is impugned in the instant Revision Application, allowed the appeal, thereby sitting aside the order dated 25.02.2014 passed by the Trial Court. 3. Apart from other grounds that have been raised, with regard to the rights and claims of the petitioner over the suit land, and the contention that the Lower Appellate Court has not only misconstrued, but misinterpreted the practice prevailing amongst the Garos, as per customary law, the petitioner has raised a very pertinent ground with regard to the propriety of the Judge, District Council Court, Tura in taking up the appeal and passing the impugned order. This ground is based on the fact that the Judge, District Council Court, Tura who had decided the appeal, in his earlier capacity as the Revenue Officer of the Garo Autonomous District Council, had passed the order dated 28.06.2007, dismissing the application for mutation filed by (L) Herison Ch. Momin, the predecessor in interest of the petitioner. This to the mind of the Court before embarking on the main issues is to be examined to determine as to whether the contention as raised by the petitioner has any substance. 4. In this context it has been submitted by Ms. S. Bhattacharjee, learned counsel for the petitioner that though the Judge, District Council Court, when passing the order dated 28.06.2007 in Case No. GDC/LR/56(M) of 2004 in his capacity as Revenue Officer of the Garo Hills Autonomous District Council, had recorded that the case was dismissed without going into the merits, the same is not borne out by the order itself. It is contended by the learned counsel that while dismissing the mutation application, the facts and circumstances surrounding the case were discussed by the Revenue Court and also the submissions of the objectors on the point of Garo customary law, as to inheritance were recorded. It is submitted that the Judge, District Council Court, therefore could not and should not have taken up the appeal to maintain judicial propriety, but instead, inspite of pointed objections being raised in the hearing of the appeal, disregarded the same by holding that the order dated 28.06.2007, did not discuss anything on merits, but had merely dismissed the case on default of the petitioner. 5. On the other grounds raised, the learned counsel has submitted that the learned Judge, District Council Court, has misconstrued the customary practice prevailing amongst the Garos, and has interpreted the same without considering the factual position between the parties and claims made there under. It is also submitted that, the learned Judge, District Council Court, ignored various authorities in Garo law, which specifies that an adopted daughter who is a Nokna, forfeits all her rights of inheritance, in the event she deserts the household and stays separately, as has happened in this case. She lastly submits that, there being grave miscarriage of justice, the impugned judgment and order is liable to be set aside. 6. Mr. She lastly submits that, there being grave miscarriage of justice, the impugned judgment and order is liable to be set aside. 6. Mr. E.B. Sangma, learned counsel for the respondent, in reply submits that the ground of objection of the petitioner, as to the said Judge, District Council Court, taking up the matter after he had dealt with the same as a Revenue Officer, cannot be taken to disable the said Judge, District Council Court, as the mutation case was dismissed for default and the merits had not been entered into or discussed. He further submits that, a party cannot force recusal of a Judge, from hearing a case, unless such circumstances exist, such as, financial interest, affinity or enmity with a party, which raises doubts about his impartiality. Learned counsel has referred to the judgment rendered in the case of Indore Development Authority (Recusal Matter-5 J.) v. Manohar Lal and others reported in (2020) 6 SCC 304 , which he submits that the decision on recusal rests on the Judge concerned, and if he considers, he would be able to deliver impartial judgment, then he need not succumb to party's pressure. 7. The learned counsel on the other issues, submits that the allegation of desertion of the adopted daughter could not be proved by the plaintiff, respondent in appeal before the Court below, and the assertion of the suit land being gifted or that there was a will, also could not be proved. By operation of the Garo customary law, he submits that the transfer of land from one clan to another cannot be effected, without the approval of the other clan members, and that also only female members of the family can inherit property of their parents. He submits that there being no infirmity with the impugned order, the instant Revision Application deserves no consideration. 8. Considering the submissions advanced by both the parties, it would be expedient to first address the issued raised with regard to the objections of the petitioner herein as to the propriety of the learned Judge, District Council Court in taking up the appeal, when in his earlier capacity as a Revenue Officer had dealt with the matter. 8. Considering the submissions advanced by both the parties, it would be expedient to first address the issued raised with regard to the objections of the petitioner herein as to the propriety of the learned Judge, District Council Court in taking up the appeal, when in his earlier capacity as a Revenue Officer had dealt with the matter. A perusal of the order in question passed by the learned Judge as a Revenue Officer dated 28.06.2007 in Case No. GDC/LR/56(M) of 2004 reveals that the contentions of the rival parties had been noted which is extracted hereinunder:- 'On perusal of the material available in the record, it appears that the disputed land which is covered by P.P. No. 6 Dag No. 22,110 area 11B-3K-18Ls in total standing in the name of Rohoni Ch. Momin, W/o Ronsing Ch. Marak at Bongpara. It also appears that Smti. Rohoni Ch. Momin and Shri Ronsing h. Marak have two sons, i.e., Shri. HelisonCh. Momin and Shri Herison Ch, Momin having no daughter. The objector Smt Enak Ch. Momin in her Written Statement dt 25/8/05 contended that her mother Smti Jeolish Ch. Momin has been adopted as the Nokma daughter by Rohoni Ch. Momin and Ronsing Ch. Marak and being the only daughter of Jeolish Ch. Momin, she (Objector) has the right to inherit all the movable and immovable properties of deceased mother and grandfather. The petitioner Shri Herison Ch. Momin is also contended with the Written document dt 15/3/65 (tampered with control the date) that the land in question has already given to him by his mother. Hence, it reflects that both the parties are contesting for 'Nokma' and 'Nokdang properties' of deceased Rohoni Ch. Momin and Ronsin Ch. Marak. So, I am of the opinion that this Court has no jurisdiction to decide the question of 'Nokma' and 'Nokdang properties'. Both the parties were asked and given a chance to settle the case amicably outside the court as the land in question is the landed property of 'Nokdang' of Cheran Mahari but both the parties could not reach at an amicable settlement of the case. Hence this case. It also appears from the record that the petitioner Sri Herison Ch. Momin had remained absent for number of consecutive dates and the persons who took steps were also absent on repeated cal. Hence this exparte proceedings. Hence this case. It also appears from the record that the petitioner Sri Herison Ch. Momin had remained absent for number of consecutive dates and the persons who took steps were also absent on repeated cal. Hence this exparte proceedings. Heard the sub-mission of learned counsel for objector and submitted the written argument. The learned counsel for objector submitted that the present petitioner Shri Herison Ch. Momin has no right to claim the land in question because as per Garo customary law the properties passed from mother to daughter and not to a son and more-over he (Herison) has got married with the different clan (Mahari) hence the case be dismissed. Therefore, considering the above circumstances, the petition dt. 2/4/04 filed by shri Herison Ch. Momin for mutation of P.P. No. 6 Dag No. 22,110 area 11B-3K-18Ls standing in the name of Rohoni Ch. Momin cannot be entertained and hence the case is dismissed without going into the merits of the case. Case is disposed of. Parties shall bear their own cost.' 9. The learned Judge as a Revenue Officer by the above quoted order, it can be seen came to the finding that the Revenue Court had no jurisdiction to decide on the question of 'Nokna' and 'Nokdang' properties of the deceased Rohini Ch. Momin and Ronsing Ch. Marak. However, further in the order, apart from observing that the applicant, Shri Herison Ch. Momin was absent for a number of consecutive dates further submissions were recorded on objections on the question of Garo customary law but in conclusion, it was held that the said application could not be entertained and was dismissed without going into the merits. 10. There are no definite rules on recusal from a matter and recusal cannot be given a uniform prescription, but it is dependent on the interpretation of a situation in a particular case. A request for recusal of a Judge by either the parties in a way, undermines judicial independence and raises questions about the impartiality of a Judge. Recusal may also cause obstruction and delay proceedings in a given case. However, recusal of a Judge would be expected if the Judge has pecuniary interest or there is a real danger or reasonable suspicion of bias. Recusal may also cause obstruction and delay proceedings in a given case. However, recusal of a Judge would be expected if the Judge has pecuniary interest or there is a real danger or reasonable suspicion of bias. The case cited by the counsel for the respondent Indore Development Authority (Recusal Matter-5 J.) v. Manohar Lal and others (supra) will not apply to the present case as that concerns a Bench made up of other Judges of which the concerned Judge was a constituent. 11. In this backdrop, in the considered view of this Court though the Judge, District Council Court in his capacity as a Revenue Officer had rejected the application for mutation, rejection can be said to be in limine even if the submissions have been recorded, as the merits were not discussed. Therefore, the learned Judge, District Council Court cannot be said to have been disabled from hearing the appeal. This issue being settled, this Court now shall proceed to examine the other issues raised in the instant revision application. 12. Though the scope of examination of the matter in exercise of revisional jurisdiction under Rule 6 of the High Court of Meghalaya (Jurisdiction over District Council Courts) Order, 2014, is limited and as has been held by this Court, must be exercised in conformity with revisional powers under Section 115 CPC, on examination of the records and the orders, however, it appears that it is necessary that this Court delves a little deeper into the matter. In this context, two issues i.e., issue No. 5 and 8, as framed by the Trial Court are important to be discussed as these two issues and the findings of the Courts below are the crux of the entire case. For the sake of convenience, the two issues are reproduced hereinbelow: '5. Whether Jewilish Ch. Momin alias Tukul Ch. Momin the adopted daughter of Lt. Ronsing Marak and his wife Lt. Roheni Ch. Momin had deserted/abandoned her foster parents, who were the parents of the plaintiff and eloped with a married man named Rujin Sangma of Garobadha and left the old couple and went to Garobadha and lived there at Garobadha permanently with her eloped husband never to return to the house of her foster parents. 8. Roheni Ch. Momin had deserted/abandoned her foster parents, who were the parents of the plaintiff and eloped with a married man named Rujin Sangma of Garobadha and left the old couple and went to Garobadha and lived there at Garobadha permanently with her eloped husband never to return to the house of her foster parents. 8. Whether the parents of the plaintiff have executed any WILL before their death in favour of the plaintiff and his elder brother in respect of their properties both moveable and immovable including the present S/L?' 13. From a reading of the Trial Court and Lower Appellate Court orders, it appears that on the evidence adduced by the parties, different conclusions have been arrived at. In the case of the Trial Court as far as the issue No. 5 is concerned, the finding is that the (L) Jewilish Ch. Momin alias Tukul Ch. Momin did not stay with her foster parents but stayed with her natural parents, and as such she had deserted the family that adopted her, thereby forfeiting her rights to inherit the property. On issue No. 8, the recorded finding is that the plaintiff (L) Herison Ch. Momin was in physical possession of the suit land and that he had been gifted the same by the document dated 15.05.1965. 14. The Lower Appellate Court on issue No. 5 by re-appreciation of evidence has held otherwise by observing that nowhere is it recorded in the deposition that there was any desertion but however has confused the names by recording the name Enoch Ch. Momin instead of Jewilish Ch. Momin, which indicates that the evidence as tendered was not dealt with properly. On issue No. 8, the finding is that though in agreement with the Trial Court as to the circumstances under which 'Wills' can be executed under Garo Customary Law, has however held that the Will document dated 15.05.1965 has not been proven except the assertion by the plaintiff, and that though the document as exhibited contained 7 signatures none of these signatories were produced as witnesses. 15. 15. The contradictory findings of the two Courts below on these two crucial issues, especially on the document dated 15.05.1965, where in the findings of the Trial Court, it has been recorded that the defendants could not dislodge the factum of execution of the gift document in favour of the plaintiff, and the factum as to whether (L) Jewilish Ch. Momin had deserted her foster parents, has left the matter in a state of uncertainty with no definite solution. 16. Appreciation of evidence has to be done to anchor the facts and to ascertain the truth, in order to arrive at a conclusion without any bias. Proper appreciation of evidence, is one of the foremost tests to consider the credentials of evidence brought by parties in a suit, as the very purpose of a judicial proceeding is only for ascertainment of certain rights or liabilities. Evidence therefore, is always to be evaluated and weighed carefully. The duty of the First Appellate Court before reversing the findings of the Trial Court, is that it should apply its mind to the reasons given by the Trial Court and record cogent and convincing reasons for disagreement. The evidence tendered should be considered as a whole and the judgment of the Appellate Court must clearly show that it had applied its judicial mind to the entire evidence, because as a final Court of fact, it is duty bound to give an independent and comprehensive consideration and assessment. 17. In this context, on the subject of appreciation of evidence and interference with finding of fact, it would be apposite to refer to the decision in the case of Radha Prasad Singh vs. Gajadhar Singh and others. reported in AIR 1960 Supreme Court 115, wherein in Para - 14, it has been held as follows: '14. 17. In this context, on the subject of appreciation of evidence and interference with finding of fact, it would be apposite to refer to the decision in the case of Radha Prasad Singh vs. Gajadhar Singh and others. reported in AIR 1960 Supreme Court 115, wherein in Para - 14, it has been held as follows: '14. The position in law, in our opinion, is that when an appeal lies on facts it is the right and the duty of the Appeal Court to consider what its decision on the question of facts should be; but in coming to its own decision it should bear in mind that it is looking at the printed record and has not the opportunity of seeing the witnesses and that it should not lightly reject the trial Judge's conclusion that the evidence of a particular witness should be believed or should not be believed particularly when such conclusion is based on the observation of the demeanour of the witness in Court. But, this does not mean that merely because an appeal court has not heard or seen the witness it will in no case reverse the findings of a trial Judge even on the question of credibility, if such question depends on a fair consideration of matters on record. When it appears to the Appeal Court that important considerations bearing on the question of credibility have not been taken into account or properly weighed by the trial Judge and such considerations including the question of probability of the story given by the witnesses clearly indicate that the view taken by the trial Judge is wrong, the Appeal Court should have no hesitation in reversing the findings of the trial Judge on such questions. Where the question is not of credibility based entirely on the demeanour of witnesses observed in Court but a question of inference of one fact from proved primary facts the Court of Appeal is in as good a position as the trial Judge and is free to reverse the findings if it thinks that the inference made by the trial Judge is not justified.' Another judgment that is useful for the purpose of this discussion, is the case of Madhusudan Das v. Smt. Narayani Bai and others. reported in AIR 1983 Supreme Court 114, wherein in Para - 8, an extract whereof is reproduced below, it has been held as follows: '8. The question ..............................At this stage, it would be right to refer to the general principle that, in an appeal against a trial Court decree, when the appellate Court considers an issue turning on oral evidence it must bear in mind that 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 trail 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. ..........' Another relevant decision on this issue is the case of B.V. Nagesh and Another vs. H.V. Sreenivasa Murthy reported in (2010) 13 SCC 530 , wherein in Para - 4 it has been held as follows: '4. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. The 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. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari v. Purushottam Tiwari, SCC p. 188, para 15 and Madhukar v. Sangram, SCC p. 758, para 5.)' 18. In the instant case, while reversing the findings on the two most crucial issues as framed, the Lower Appellate Court does not appear to have given adequate consideration to all the issues in contention or to weigh the evidence as tendered on re-appreciation of the same. As such, in view of the foregoing discussions and in the facts and circumstances thereof, the impugned order is set aside and the matter remanded back to the Learned Lower Appellate Court for rehearing. It is also made clear that pending disposal of the Appeal, status quo as regards the suit land in question shall be strictly maintained by the parties herein. 19. Revision Application is accordingly disposed of. 20. The Lower Court Records to be transmitted back immediately. It is expected that the matter shall be dealt with as expeditiously as possible. 21. No order as to costs.