Shri Johish Koch & Ors vs Smti Monoty Koch

By way of this application under clause 6 of the High Court of Meghalaya (Jurisdiction over District Council Courts) Order, 2014 the petitioners, who had filed a suit in Ampati Village Court for declaration and other reliefs in relation to the suit property, being the agricultural land situated at Village Kashrabari, have questioned the judgment and order dated 19.08.2015 as passed by the learned Judge, District Council Court, Garo Hills District, Tura in Miscellaneous Appeal No.2 of 2014..

By the impugned judgment and order dated 19.08.2015, the learned Judge, District Council Court, though has set aside the judgment and orders passed by the Ampati Village Court as also by the First Appellate Court after finding procedural flaws in the proceedings of the Village Court and infirmities in the findings of the First Appellate Court but then, instead of pronouncing on the rights of the parties or remanding the matter, has left the parties ""to establish their right, if so desired in appropriate forum.

After having heard the learned counsel for parties and having perused the material placed on the record, this Court has formed the opinion that the entire matter deserves to be restored for reconsideration of the Village Court. In this view of the matter, this Court would not be making any comments on the merits of the case; and only a brief reference to the background aspects would suffice.

Put in brief, the relevant background aspects of the matter are that the petitioners herein filed the aforesaid civil suit against the respondent in Ampati Village Court that was registered as LC No. 7 of 2011, claiming their rights in relation to the agricultural land covered by periodical patta No.224 Dag No.737 admeasuring 2 bighas and periodical patta No.100 Dag No.208 admeasuring 11 bighas and 10 lechas, situated at village Kashrabari. The Village Court proceeded to dispose of the said suit by its order dated 19.08.2011.

A copy of the said order dated 19.08.2011 has not been placed on the record of this revision petition but the same is available on the file of the Judge, District Council Court, Tura as requisitioned in this case; and is drawn up in Garo language. The learned counsel Mr AG Momin assisting Mr AS Siddique, appearing for the petitioners and the learned counsel Ms SG Momin assisting Mr R Kar, appearing for the respondent have duly given out a gist of the order so passed by the Ampati Village Court. Both the learned counsel are ad idem that the Village Court only referred to the stand of the parties and without taking or examining any evidence, disposed of the said matter by the order dated 19.08.2011.

The respondent herein preferred an appeal against the order so passed by the Village Court, being Miscellaneous Appeal No.3 of 2011, before the learned Judge, Subordinate District Council Court, Tura. The learned Appellate Judge, though referred to some of the submissions of the parties but without noticing the basic procedural flaws in the proceedings of the Village Court, upheld the aforesaid order of the Village Court and dismissed the appeal by the judgment and order dated 05.03.2014.

In further appeal, being Miscellaneous Appeal No.2 of 2014, the learned Judge, District Council Court, though noticed the flaws and infirmities in the judgment and orders impugned and indeed proceeded to set them aside but, without dealing with the merits of the case, only proceeded to observe that the parties were required to establish their right, if so desired, in proper forum. The learned Judge, inter alia, observed and decided as under :

On perusal of the materials available on the record of Ampati Village Court in L.C. No.7, dated 29.8.2011, it revealed that Ampati Village Court neither examined the parties nor their respective witnesses. The said Village Court did not even call for relevant documentary evidences such as copy of Pattas, Chithas and jamabandis etc.to establish the right of the parties. The Ampati Village Court has jurisdiction to try case under Rule 14(a) of the Garo Hills Autonomous District (Administration of Justice) Rules 1953 but it should follow the provisions of C.P.C. in spirit that is to examine the parties in the suit, their respective witnesses, call for relevant documents etc. to decide such critical issues of inheritance of Koches in Garo Hills. In the instant case, the Ampati Village Court has simply decided the case without following the procedures of C.P.C. in spirit which cause procedural lapses.

Therefore, the order of the Ampati Village Court in L.C. No.7 of 2011 has suffered from legal perversity and hence deserved to be set aside.

That the learned Subordinate Court, the First Appellate Court has passed the Judgement and order in Misc. Appeal No.3 of 2011 basing on the findings and decisions of the Ampati Village Court passed in L.C. No.7 of 2011. The first appellate Court had failed to consider the law of inheritance of Koches of Garo Hills that they are matrilineal as it is the daughters who inherit and not sons. The said order passed on the Resolution of the Meghalaya Koches Association, dated 15th July, 2008 has suffered from legal infirmity and hence it is liable to be set aside.

It is well known fact that under no law the Resolution of any Association can be attached to any legal value.

In the above premises, I am of the opinion that the Judgement and order passed by the first appellate Court in Misc No.3 of 2011 and order passed by the Ampati Village Court in L.C. No.7 of 2011 are liable to be set aside. Hence, these are set aside. The parties to establish their right, if so desired in proper forum.

The case record of Misc. Appeal No.3 of 2011 be sent back to the Court of Shri S.R.R. Marak, Judicial Officer, Magistrate 1st Class, Subordinate Court, Garo Hills Autonomous District Council along with copy of this order.

Appeal is admitted and disposed of.

Parties shall bear their own costs.

Seeking to question the aforesaid judgment and order dated 19.08.2015, learned counsel for the plaintiffs/petitioners has submitted that the Second Appellate Court has failed to consider the law of inheritance applicable to the parties and has also failed to consider that the Village Court is to follow the procedures of village customs and not the provisions of Code of Civil Procedure. The learned counsel has also submitted in the alternative that if at all the Appellate Court found any procedural flaw, the matter ought to have been remanded for reconsideration but the parties could not have been left to approach any other forum because, for the dispute at hand, only the Village Court Ampati shall be having the jurisdiction to deal with the matter between the parties.

The learned counsel for the respondent, per contra, has supported the order impugned and has further submitted that in view of the order passed in the previous litigation taken up by the predecessor of the petitioners, where his suit was dismissed in default, the petitioners are barred from taking up the same issue by way of a fresh suit and for this reason itself, the petitioners are not entitled to the reliefs as claimed.

This Court has briefly taken note of the outline of the submissions of the learned counsel for the parties but would not be expressing any opinion on the contentions urged on behalf of the petitioners as regards the law of inheritance applicable to the parties nor would express any opinion if the suit as filed by the petitioners is maintainable or not. The basic question in this case is as to what was required of the Second Appellate Court to order, after its findings in paragraphs 6 to 8 of the judgment impugned?

It is rather indisputable that the Village Court omitted to take a considered decision in the matter and decided the suit in a rather cryptic and cursory manner without calling for the relevant evidence. The observations as made by the Second Appellate Court in paragraph 6 of the judgment impugned do not appear calling for any dispute. As aforesaid, the learned assisting counsel for both the parties, after having gone through the order dated 19.08.2011, could not dispute the position that it suffers from fundamental procedural flaws where even the basic spirit of the Civil Procedure Code was not kept in view. The judgment as delivered by the First Appellate Court in a question-answer form also appears to be suffering from the infirmities where neither the basic flaws in the proceedings of the Village Court were taken into account nor any evidence was examined.

It is rather painful to notice that after indicating the flaws and infirmities in the proceedings of the Village Court and the First Appellate Court and after setting aside the orders passed by them, the learned Judge, District Council Court, chose to order that the parties may establish their right, if so desired, in proper forum.

This Court is clearly of the view that after the basic flaws and infirmities were found by the learned Judge, District Council Court in the proceedings of the Subordinate Courts, the only proper course was to remand the entire matter to the Ampati Village Court for decision of LC No.7 of 2011 afresh and in accordance with law. Looking to the subject matter of dispute and the standing of the parties, it is difficult to find as to what other proper forum the parties could have approached for establishing their rights and for seeking the reliefs as claimed? So far the objection as regards maintainability of suit is concerned, the same has also not been gone into by the Subordinate Courts nor it appears that the Village Court framed proper issues in the matter. Therefore, it appears appropriate to remand the matter for consideration afresh by the Village Court concerned after framing the relevant issues.

Having regard to the circumstances, it is also considered appropriate to observe that the concerned Village Court may also frame an issue on the plea of the respondent about maintainability of the suit; and such an issue may be decided as a preliminary issue, but strictly in accordance with law.

Accordingly and in view of the above, this revision petition is partly allowed to the extent and in the manner that the impugned judgment and order dated 19.08.2015, as passed by the Judge, District Council Court, in Miscellaneous Appeal No.2 of 2014 is modified; and, though the impugned judgment and orders dated 19.08.2011 as passed by the Ampati Village Court in LC No.7 of 2011 and dated 05.03.2014 as passed by the Judicial Officer, Subordinate District Council Court, Tura in Miscellaneous Appeal No.3 of 2011 are set aside but then, LC No.7 of 2011 stands restored to the file of Ampati Village Court for consideration afresh and in accordance with law keeping in view the observations foregoing.

In the interest of justice, it is made clear that this Court has not pronounced on the merits of any of the issues involved in this case; and it would be required of the Court concerned to take an appropriate decision in the matter in accordance with law.

The parties through their respective counsel shall stand at notice to appear in the Ampati Village Court in relation to LC No.7 of 2011 on

05.06.2017.

The parties are left to bear their own costs of this petition.