TEKABA AO AND ANR. versus SAKUMEREN AO AND ANR.

Citation: [2004] SUPP. 1 S.C.R. 897 · Decided: 29-04-2004 · Supreme Court of India · Bench: SHIVARAJ V. PATIL · Disposal: Case Partly allowed

Judgment (excerpt)

TEKABA AO AND ANR. 
A 
v. 
SAKUMEREN AO AND ANR. 
APRIL 29, 2004 
[SHIVARAJ V. PATIL AND D.M. DHARMADHIKARI, JJ.] 
B 
Customary Laws: 
Rules for Administration of Justice and Police in Nagaland, 1937-
Rules 29 and 62(2)-Dispute between two clans of two villages in Hill C 
district-With regard to access to water source and ownership of land in -
which source exists-Decision by Customary Courts-Appeal in High Court-
High Court remitting additional issue on ownership of land to District 
Customary Court for recording evidence and deciding case on evidence 
recorded as Original Court against one cian-On appeal held: In Village D 
Courts customary law is applied and dispute is resolved by mutual agreement 
and on consensus-Undertaking exercise of deciding the dispute of ownership 
of land by High Court for the first time in appeal and against one clan is 
not in accordance with letter and spirit of Rules -Also the party not allowed 
to file fresh pleadings in relation to the additional issue remitted resulting 
in serious prejudice to the party-Hence, order of High Court is set aside- E 
Declaration passed that both parties will have joint and equal right to the 
water source in the disputed land and no member of either clan would 
restrict the access to any one of the two village communities-Dispute of 
ownership is left open to be decided, if raised in future in terms of the Rules. 
The village boundaries of two villages in Hill District were demarcated F 
by erecting pillars. Dispute arose between S and P clans of two villages. S 
clan represented by appellants alleged that the members of P clan represented 
by respondents removed the pillars and encroached on the disputed land fo.r 
use of the water source. Appellants filed complaint Village Court held that 
the disputed land in which the water source is situated, belongs to the G 
appellants. Respondents filed ~n appeal. Thereafter Rule 24(1) was 
incorporated in the. Rules for Administration of Justice and Police in 
Nagaland, 1937 which provided for filing of pleadings by parties in dispute of 
civil nature. Appellants filed a written statement. Issues were framed on the 
disputes raised but not with regard to the ownership of land in which the water 
897 
II 
898 
SUPREME COURT REPORTS (2004) SUPP. I S.C.R. 
A source existed. Appelhltt;Authority allowed the appeal and declared respondent 
title both to the water·source and the land. Appellants filed an appeal in High 
Court. Single Judge accepted the contention of the appellants that without 
framing issue on the ownership of the land, the dispute regarding land could 
not have been decided ~d remitted the issue on the ownership of land to the 
B Appellate Authority who recorded additional evidence and submitted it to the 
High Court. High Court held that the ownership' of the land is with the 
respondents. Hence the present appeal. 
Partly allowing the appeal, the Court 
HELD 1.1. In view of the peculiar substantive and procedural law as 
C contained in the Rules for Administration of Justice and Police in Nagaland, 
1937 applicable to Hill Districts of Nagaland, the village dispute, particularly 
with regard to the source of water and the land in which it is situated, was 
required to be decided as a subject matter requiring solution in a spirit of 
accommodation and adjustment of conflicting rights of the members of two 
contesting clans and not as adversarial litigation. In the Village Courts 
D customary law is required to be applied and the adjudicatory process requires 
the adjudicating fora to make all possible efforts to resolve the dispute by 
mutual agreement and achieve a consensus. The present dispute needed a 
resolution so as to best serve the demands of all members of the two village 
communities who had raised the d!spute. Villagers in disputes arising inter 
E se between them concerning exercise of community rights to natural 
resources like land and water can never feel satisfied by a mere formal 
decision of such disputes in favour of one or the other party. Instead of decision 
they need a satisfactory solution of such disputes for their mut~al· ben~rits. 
(904:-C-FJ 
F 
1.2. Single Judge of the High Court by remitting the issue of ownel'Ship 
of land in which the water source exists, to District Customary Court for 
recording evidence on the additional issue and deciding the case on .such 
evidence, has virtually acted as the original court. The dispute is first 
required to be handled in the

Excerpt shown. Read the full judgment & AI analysis in Lexace.