Shri. Amos Dkhar vs Shri. Donush Siangshai
2024 Latest Caselaw 292 Meg

High Court of Meghalaya

Shri. Amos Dkhar vs Shri. Donush Siangshai on 20 May, 2024

Author: H. S. Thangkhiew

Bench: H. S. Thangkhiew

Serial No. 02 & 03
Regular List
                          HIGH COURT OF MEGHALAYA
                                AT SHILLONG

    MA(S) No. 1 of 2024 with
    MA(S) No. 2 of 2024                          Date of Decision: 20.05.2024


    1.Shri. Amos Dkhar
    S/o Shri Edwin Kyndait
    R/o Longkaluh Village
    East Jaintia Hills District, Meghalaya

    2.Smti. Sngewbha Siangshai
    W/o Shri. Amos Dkhar
    R/o Laitumkhrah (Bhagyakul), Shillong
    East Khasi Hills District, Meghalaya                   :::Appellants

           -Vs-

    Shri. Donush Siangshai
    S/o (L) Koren Shyrmang
    R/o Lad Rymbai
    East Jaintia Hills District, Meghalaya                 :::Respondent

1.Shri. Edwin Kyndait S/o Shan Dkhar R/o Longkaluh Village, East Jaintia Hills District, Meghalaya

Additional Address:

Bhagyakul, Laitumkhrah, Shillong East Khasi Hills District, Meghalaya

2. Shri. Amos Dkhar S/o Shri. Edwin Kyndait R/o Laitumkhrah, Shillong P.O & P.S: Laitumkhrah, Shillong East Khasi Hills District, Meghalaya :::Appellants

-Vs-

Shri. Donush Siangshai S/o (L) Koren Shyrmang R/o Madanriting, Shillong P.S- Nongthymmai East Khasi Hills District, Meghalaya :::Respondent

Coram:

Hon'ble Mr. Justice H. S. Thangkhiew, Judge

Appearance:

For the Petitioner/Appellant(s) : Mr. T.T. Diengdoh, Sr. Adv. with Mr. C.C.T. Sangma, Adv.

For the Respondent(s)           :      Ms. B. Goyal, Adv. with
                                       Mr. S. Thapa, Adv.


i)    Whether approved for reporting in                  Yes/No
      Law journals etc.:

ii)   Whether approved for publication
      in press:                                          Yes/No





                    JUDGMENT AND ORDER

1. The instant appeals involving similar facts and a common

question of law, for the sake of convenience are being disposed of by

this common judgment and order.

2. The brief facts leading upto the present miscellaneous appeals

are that the Respondent as Plaintiff had instituted two suits against the

appellants herein, being T.S. No. 52 of 2017 and T.S. No. 53 of 2017

(since renumbered) in 2015. The appellants during the pendency of the

suits had filed applications under Order 7 Rule 11 of the CPC, and the

learned Trial Court vide order dated 11.02.2022, rejected the plaints of

the Respondent/Plaintiff, on the ground that the Court had no

jurisdiction to try the suits. This Court at that point of time, was then

approached by the respondent by way of a Revision Application being

CRP No. 7 of 2022, which was disposed of by order dated 06.06.2022,

with a liberty given to the respondent herein, to file an appeal before

the Judge, District Council Court. The respondent then preferred two

miscellaneous appeals being MCA No. 10 and 11 respectively of 2022,

before the Court of the Judge, District Council Court, who then by

order dated 09.05.2023, allowed the appeals and set aside the order of

the Trial Court dated 11.02.2022. Against this order dated 09.05.2023,

the appellants are now before this Court.

3. Mr. T.T. Diengdoh, learned Senior counsel assisted by Mr.

C.C.T. Sangma, learned counsel for the appellants has submitted that

the Judge, District Council Court had erred in law, in going against the

law declared by the Supreme Court by holding that the Sub-ordinate

District Council Courts, Khasi Hills Autonomous District Council,

possessed jurisdiction to try the suits even though both the plaintiff and

defendants belong to different districts, notwithstanding the fact that,

the property was situated within the jurisdiction of the KHADC. The

case of Kyntiew Akor Suchiang vs. Woston Hynniewta & Anr.

reported in (2017) 13 SCC 488, has been cited to advance his

contention that in the interpretation of Para - 4 of the Sixth Schedule to

the Constitution of India, the Supreme Court has held that a District

Council Court constituted for the purpose of deciding disputes, has

jurisdiction in respect of tribals who belong to the Scheduled Tribe,

within such area for which the District Council is constituted and would

have no jurisdiction, where one of the parties belong to another area,

which is under the jurisdiction of another District Council. The learned

Senior counsel has further submitted that in the said judgment, it has

also been held that the Khasi Hills District Council Court, would have

no jurisdiction to determine the dispute, which was between the wife,

who belongs to a tribe of Jaintia Hills and the husband, who belonged

to East Khasi Hills. He asserts that in this decision, Kyntiew Akor

Suchiang(supra), the Supreme Court had laid stress on the word

'belongs' and as such, even if a person resides within the jurisdiction of

the KHADC, but belongs to another tribe of a different district, the said

District Council would have no jurisdiction to try the suit.

4. The learned Senior counsel then submits that, the Lower

Appellate Court has erred in law in relying upon Section 16 of the

CPC, inasmuch as, the said provision of law begins with 'subject to the

pecuniary or other limitations prescribed by law... shall be instituted in

the court within the local limits of whose jurisdiction the property

situated'. This he contends has limited the application of Section 16,

due to the existence of Paragraph-4 of the Sixth Schedule to the

Constitution of India and the law laid down by the Supreme Court. The

issue he submits is no longer 'res integra' as this Court is bound to

follow the law laid down by the Supreme Court, in terms of Article 141

of the Constitution, and the fact that the suit property is situated in

Shillong, will not confer jurisdiction upon the District Council Courts

at Shillong, once it is established that either of the parties belong to

another area, which is under jurisdiction of another District Council

Court.

5. It has also been submitted that a perusal of the plaint will

indicate that the appellant is a resident of East Jaintia Hills District, so

also the respondent, meaning which, both the parties in the suit belong

to the area under jurisdiction of the Jaintia Hills Autonomous District

Council, and in view of the prohibition as contained in paragraph-4 of

the Sixth Schedule to the Constitution of India, read together with the

case of Kyntiew Akor Suchiang(supra), it is the normal courts of East

Khasi Hills, which can possibly have the jurisdiction to entertain the

suit and not the District Council Courts, KHADC. With regard to the

fact that, the challenge to jurisdiction has been made belatedly, he

submits that it cannot be said that the appellants have waived their

rights, inasmuch as, it is a settled principle of law that any order or

decree passed without jurisdiction is nullity. He lastly submits that, the

learned Lower Appellate Court in passing the impugned order has

clearly ignored the law laid down by the Supreme Court, and as such,

the impugned order is liable to be set aside.

6. Ms. B. Goyal, learned counsel for the respondent in reply

while supporting the legality of the impugned order, has submitted that

the appellant/defendant when filing the written statement, never took

any plea with regard to jurisdiction and has submitted to the jurisdiction

of the Trial Court, and only after a considerable period of time, after the

institution of the suit, had raised the plea. The property in dispute she

submits, falling within the territorial limits of the District Council

Courts of Shillong, even assuming that both the parties belong to

Jaintia Hills, the same shall have no bearing to the extent that they are

both tribals from the State of Meghalaya. Rule 18 of the United Khasi-

Jaintia Hills Autonomous District (Administration of Justice) Rules

1953, she submits covers the case of the parties as it provides that, a

Sub-ordinate District Council Court shall be competent to try all civil

suits not triable by a village court, in which all the parties reside or hold

land within its jurisdiction and if any immovable property is in dispute,

the said property is also situated within the same. She therefore submits

that, if immovable property in dispute falls within the jurisdiction of the

concerned District Council Court, it will have jurisdiction to try the suit

and therefore, as the property in dispute in the present suit is located in

Shillong, it is the court of the District Council Courts at Shillong that

are competent to try the same.

7. It is further submitted that the two judgments relied upon by

the appellant, i.e. State of Meghalaya vs. Richard Lyngdoh reported in

2006 2 GLR 328 and Kyntiew Akor Suchiang(supra) are not

applicable in the facts of the present case. The learned counsel has

placed reliance on the judgment in the case of Dr. Shah Faesal & Ors.

vs. Union of India reported in (2020) 4 SCC 1, where she submits, it

has been held that, judgments cannot be interpreted in a vacuum

separate from the facts and context, and that observations made in a

judgment cannot be selectively picked in order to give them a particular

meaning. She therefore submits that, the appeals are misconceived,

untenable in law, and are liable to be dismissed.

8. Heard the learned counsel for the parties. As can be culled out

from the submissions, the only point in question to be determined in

these instant appeals is whether the suit is maintainable before the

District Council Courts at Shillong, in view of the assertion of the

appellant that, as both the appellant and the respondent belong to

Jaintia Hills, hence, the same should be relegated to the ordinary Civil

Courts, inspite of suit property being located in a tribal area. The

impugned order passed by the learned Judge, District Council Court,

Shillong, has also been called into question, on the ground that the law

as laid down by the Supreme Court has not been followed, and that the

mere situation of the suit land within the jurisdiction of the District

Council Courts, Shillong, would not confer jurisdiction on the said

courts, in view of the specific provisions of the Sixth Schedule to the

Constitution of India.

9. At this juncture, it would therefore be apt to examine the law

as laid down in the case of Kyntiew Akor Suchiang(supra), wherein

the Supreme Court has held that the District Council has jurisdiction

only in respect of tribals, who belong to Scheduled Tribe within such

area for which the said District Council is constituted and would have

no jurisdiction where one of the parties belong to another area which is

under the jurisdiction of another District Council. In the said case, the

dispute was between a wife belonging to Pnar Tribe and a resident of

Jowai, under the jurisdiction of the Jaintia Hills Autonomous District

Council and husband belonging to East Khasi Hills District, under the

jurisdiction of the Khasi Hills Autonomous District Council. The

Supreme Court while quoting Paragraph - 4 of the Sixth Schedule, then

remanded the matter to the Court of the District and Sessions Judge at

Shillong, for disposal on the finding that the appellant and the

respondent therein, belong to different districts. Reference may also be

made to the judgment of State of Meghalaya vs. Richard

Lyngdoh(supra), wherein the earlier jurisdictional High Court had on a

similar question concluded that the jurisdiction of the District Council

Courts, will extend in civil matters, if all the parties belong to

Scheduled Tribes and all such persons must belong to the same district

council, meaning if the two persons belonging to the Scheduled Tribe

came from two different areas, the District Council Courts will have no

jurisdiction.

10. Of the two above noted cases, the former i.e. Kyntiew Akor

Suchiang (supra), was with regard to the claim for maintenance with

the acknowledged fact that, both the appellant and the respondent

therein belonged to different districts. In the latter case, i.e. State of

Meghalaya vs. Richard Lyngdoh(supra), the judgment was rendered

on the subject of jurisdiction with regard to criminal cases, though a

finding was also rendered on jurisdiction with regard to civil matters,

which was referred to in Kyntiew Akor Suchiang (supra). The law laid

down in the interpretation of Paragraph - 4 of the Sixth Schedule, is

therefore clear and unambiguous, that if the Scheduled Tribe persons

belong to different districts, then the District Council Courts would

cease to have jurisdiction to try the matter.

11. In the instant case, the suits were instituted as far back as on

June, 2015, and the applications as per Order 7 Rule 11 CPC, were

filed in August 2019, after written statements had been filed and the

matter had proceeded. As noted from the impugned judgment, the

question regarding jurisdiction was never raised at an earlier point of

time, but was agitated after much time had elapsed. It is also noted that,

in the applications under Order 7 Rule 11 preferred by Shri. Amos

Dkhar, in renumbered T.S. No. 53/2017 (Old T.S. No. 9/2015), as also

the written statement of both the defendants therein, the addresses

given in the written statement, as also in the Order 7 Rule 11

application of the appellant No. 1, is shown as Bhagyakul,

Laitumkhrah, Shillong, East Khasi Hills District. Similarly, in

renumbered T.S. No. 52/2017 (Old T.S. No. 10/2015), in the

application under Order 7 Rule 11, which was preferred only by the

appellant No. 2 and not by the appellant No. 1, the address shown

therein was the same as in T.S. No. 53/2017, i.e. Bhagyakul,

Laitumkhrah, Shillong, East Khasi Hills District. The plaintiff,

respondent herein, is also a resident of East Khasi Hills, Shillong, as

can be seen from the plaints and replies filed in the Order 7 Rule 11

applications. As such therefore, the appellants except for appellant No.

1 in MA(S)No. 2 of 2023, who however has not filed any application

challenging the jurisdiction of the District Council Courts in Shillong,

are all residents of East Khasi Hills under the jurisdiction of the Khasi

Hills Autonomous District Council.

12. Paragraph - 4 of the Sixth Schedule, has provided that the

District Council would constitute Courts for a trial of suits and cases

between the parties, all of whom belong to Scheduled Tribes within

such areas, and the District Council in exercise of such powers

conferred under Paragraph - 4(4) had enacted the United Khasi-Jaintia

Hills Autonomous District (Administration of Justice) Rules 1953,

which came into force on 7th January 1954. It is to be noted at this

point, that for the Khasi and Jaintia Hills, a single District Council had

been constituted and the same continued as such, till the creation of a

new autonomous district comprising the Jowai Sub-division of the

erstwhile the United Khasi-Jaintia Hills District w.e.f. 1st December,

1964. The Administration of Justice Rules therefore, as also other Acts,

Rules and Regulations made by the United Khasi-Jaintia Hills District

Council, continued to apply to the new autonomous district as provided

by the Jowai Autonomous District (Administration) Act, 1967.

Essentially therefore, the Khasis-Jaintias belong to the same race, by

ethnicity, share a common origin and kinship ties and perhaps it was on

this consideration that a single district council was constituted initially

by which they were governed by.

13. In coming to the jurisdiction aspect of the present case, the

Administration of Justice Rules, 1953 at Rule 18 had provided as

follows.

"18. Subordinate District Council Court to try civil suits and criminal cases- Subject to rules 19, 20 ad 21, a Subordinate District Council Court shall be competent to try (i) (a) all civil suits not triable by a Village Court in which all the parties reside or hold land within its jurisdiction and if any immovable property is in dispute and the said property is also situated within the same; (b) all criminal cases not triable by a Village Court in which the offence is committed within its jurisdiction; and (ii) to hear appeal from Village Courts."

14. A perusal of the above quoted Rule shows that, it covers

parties 'who reside or hold land' within the jurisdiction of any

Subordinate District Council Court, which would therefore, be

applicable in determining the issue in the instant case, as opposed to the

cited case of Kyntiew Akor Suchiang(supra), wherein origin and

residence of the parties therein was not in question. The facts of the

instant case being peculiar to itself therefore, demands that the

application of prevalent law be applied taking these facts into

consideration. As observed earlier, the appellant who had preferred the

application under Order 7 Rule 11, by his own admission, had shown

himself to be a resident of East Khasi Hills, as also the plaintiff whose

residence was also in East Khasi Hills. The suit property also being

situated within East Khasi Hills, it can safely be held that, the Khasi

Hills Autonomous District Council Courts will therefore possess

jurisdiction to try the suits in question.

15. It may be noted here that, the State of Meghalaya by

notification dated 20.09.2022, has applied the provisions of the Code of

Civil Procedure 1908, to the Courts in the State of Meghalaya, with the

provision however, that the District Council Courts shall continue to

derive powers under Paragraphs - 4 and 5, of the Sixth Schedule to the

Constitution of India. In the considered view of this Court, though the

regular courts in Meghalaya, would be required to try the cases as per

the procedure laid down in the CPC, and not under the Administration

of Justice Rules, 1937, the District Council Courts would still continue

to derive powers under Paragraphs - 4 and 5 of the Sixth Schedule, and

as such, not bound by the letter of the CPC. As such, reliance or

recourse to the application of Section 16 of the CPC in the instant case,

will not be necessary, as the same would be only in spirit and the

effective provision for determination of place of institution of a suit

would be Rule 18 of the Administration of Justice Rules, 1953.

16. As a footnote to clarify the position with regard to the

specification 'all of whom belong to Scheduled Tribes within such

areas' given in Paragraph - 4 of the Sixth Schedule, in the context of

the present case, this expression, if viewed in the perspective of the

location of the Khasi and Jaintia people, who though shown to be

different tribes are essentially part of the people known as

'Hynniewtrep', no specific interpretation can be given, inasmuch as,

they inhabit both the Khasi and Jaintia Hills, and as such, in the

considered view of this Court, place of residence can be taken to be a

reasonable and accurate yardstick, in such cases.

17. From what has been discussed above, in the considered view

of this Court, the objection to jurisdiction as raised by the appellants is

not sustainable due to the peculiar facts and circumstances of this case.

As such, this Court deems it not necessary to relegate the parties to the

regular Courts. Further it may be added this finding, has been arrived at

keeping in mind the object and intent of the Sixth Schedule to the

Constitution of India, in providing for such Courts under Paragraph - 4

thereof, and the purpose for which they have been established, which is

to adjudicate matters between tribals. These Appeals therefore fail and

are accordingly dismissed.

18. As the Title Suits have been pending for long many years, the

Trial Court is to immediately take up these matters on a war footing

and ensure expeditious disposal.

19. Parties to put to notice to appear before the Trial Court on 10 th

June, 2024.

Judge Meghalaya 20.05.2024 "D.Thabah-PS"