1. This is an appeal under Rule 34 of the Rules for the Administration of Justice and Police in Nagaland, 1937, for short 'the Rules.' The parties are Lothas. A land dispute cropped up between the villagers of Humtse village, hereinafter to be referred as 'H' village and the villagers of Yikhum, hereinafter to be referred as 'Y' village. In 1952/53 when 'H' villagers commenced clearance of the disputed land (Jungle) they were obstructed by 'Y' villagers who laid their claim on that part of the land which was being cleared by 'H' villagers. The dispute was placed before Sri N. N. Bhuyan, the then Sub-Divisional Officer, Mokokchung, who also exercised power of A. D. C. (ii), Mokokchung. Upon hearing both the parties, making local inquiries and having exercised, over the matter. Sri Bhuyan passed an order which was beneficial to both the parties. His order clearly describes the land in dispute. However, the villagers were not satisfied with the decision and came up In appeal before Mr. S. J. D. Carvelho,
the then Deputy Commissioner, Naga Hills. At the hearing of the appeal both the parties agreed to take customary oath 'on entire villagers' lives', the parties claimed that the land in dispute or the subject-matter of the dispute belonged to the parties from time immemorial. When both the parties agreed and or were willing to take the customary oath, the learned Deputy Commissioner ordered that oath should be taken by the GBs and Elders (three from each village) on their lives as well as the lives of the villagers. Such oath being taken by both the parties, the land which was the subject-matter of dispute before Shri N. N. Bhuyan was directed to be divided equally between 'H' 'and 'Y' villagers.
2. The learned Deputy Commisioner directed the Sub-Divisional Officer., Mokokchung to demarcate the land with the help of the Officers referred to in his order, within a month from the date of the order. Therefore, the dispute raised by the parties was finally settled by the Deputy Commissioner who directed land to be divided equally between 'H' and 'Y' villagers in the manner set out in the order; the Deputy Commissioner directed the Sub-Divisional Officer Mokokchung to demarcate the area of the parties. This order was rendered as far back as on 14-11-1955. There was no appeal against this order by any of the parties. Therefore it became final. It is the common case of the parties that the land was never demarcated by the SDO, Mokokchung as ordered by the Deputy Commissioner. It is also a common case of the parties that in view of the non-demarcation of the boundary constant disputes arose between the villagers. When such a dispute arose the present respondents petitioned to the Deputy Commissioner to execute the order of the former Deputy Commissioner directing division of the disputed land in terms of the order dated 14-11-55. However, the Deputy Commissioner, in our opinion, instead of demarcating the area, treated it to be almost a new dispute and decided the claims of the villagers afresh. It is true that the Deputy Commissioner took note of the final order passed by Mr. Carvelho but instead of implementing that order he reopened the issue which had been decided, by Mr. Carvelho. The Dy. Commr. in his impugned judgment and order brought certain mat-
ters which were not to be found in the order of Mr. Carvelho. The Deputy Commissioner thought that the duration of the oath was only for one year, that is, one year from the date of taking of oath which extended up to the period of the first harvest. However. We find that oaths were taken for good and on the basis of the oaths so taken by the parties a final decision was made by Mr. Carvelho. The Deputy Commissioner in his order dated 24-9-1970 introduced extraneous matters. He observed that the parties had taken oath to the effect that if within the next harvest season a villager of either village died the other village would get the entire property. However, this was not to be found in the final order of Mr. Carvelho. We also do not find any such custom or customarv law of the Lotha Nagas in Mill's 'The Lotha Nagas' or in any other authoritative books on the Lothas. We are constrained to hold that in the impugned order the Deputy Commissioner has introduced matters which were nowhere in the judgment and order passed by Mr. Carvelho.
3. Further, the Deputy Commissioner completely overlooked that the principles of res judicata contained in Section 11 of the Code of Civil Procedure are applicable in areas governed by the Rules of Administration of Justice, although the letter of the Code is not applicable in Nagaland vide G. Sakhigopal Sarama v. K. Smsaja Devi, Civil Appeal No. 659 ot 1957 decided by the Supreme Court cm 9-2-1961. The principle of res judicata prohibits the subsequent court to try a suit or an issue which has been finally decided by a competent court. We extract herein below the relevant provision of Section 11 of Civil P. G.
'11. Res judicata.-- No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
Explanation I : The expression 'former suit' shall denote a suit which has been decided prior to the suit in question
whether or not it was instituted prior thereto.
Explanation II. -- For the purposes of this section, the competence of a Court shall be Determined irrespective of any provisions as to a right of appeal from the decision of such Court.
Explanation III.--The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly by the other.
Explanation IV-- Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Explanation V -- Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of the section, be deemed to have been refused.
Explanation VI-- Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.
Explanation VII-- The provisions of this section shall apply to a proceeding for the execution of a decree and reference in this section to any suit, issue or former suit shall be construed as reference, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.
Explanation VIII--An issue heard and
finally decided by a Court of limited
jurisdiction, competent to decide such
issue, shall operate as res judicata in a
subsequent suit notwithstanding that
such Court of limited jurisdiction was
not competent to try such subsequent
suit or the suit in which
such issue has been subsequently raised.'
It is fairly admitted by the learned counsel for the parties that the very same dispute was finally determined by Mr, Carvelho and there was no appeal against his order and therefore it became final. Counsel for the parties also admit that the Deputy Commissioner could not have decided the right, title and interest of the suit property afresh in the face of the
final decision of Mr. Carvelho. In view! of the principles contained in Section 11 of the Code of Civil Procedure. The principles of res judicata is applicable in Nagaland. It is true that the letter of the Civil procedure Code is inapplicable, yet the spirit of Section 11 of 'the Code' is applicable, In S. Sakhi Gopal (supra) the Supreme Court held as under :--
'The question is whether the suit was dismissed under Order 9, Rule 8 or Order 17, Rule 2 or 3 of the Code of Civil Procedure. At the very outset, there is difficulty in this case, because by Section 1 of the Code of Civil Procedure, the Code does not apply to Manipur, and it was excluded by legislation then in force. Under the Manipur State Hill People (Administration) Regulation. 1947 Section 12, it is provided as follows :--
'All Courts shall be guided by the spirit but shall not be bound by the letter of the Code of Civil Procedure, 1908, and shall follow the State Limitation Act.'
This is a piece of litigation which is somewhat strange, but the reason appears to be that the technicalities of the Code, such as we know, should not trammel litigation embarked upon by a people unused to them. We have, therefore, to apply the spirit of the Code of Civil Procedure to the present case.
That the earlier suit was dismissed is clear enough. By the order of November 8, 1951, the Court did not dismiss the suit for default in appearance of the appellant but on merits, since he had brought no material on the record to pn-title him to a judgment in his favour. The words, 'There is no sufficient material on record to pronounce judgment. Ordered that the suit be dismissed' clearly show a final decision of the suit. Whether this be referable to the spirit of Order 9, Rule 8 or Order 17, Rule 3. the order dismissing the suit had to be set aside. Under Section 12 of the Code of Civil Procedure (or its spirit) no second suit could be brought on the same cause of action without getting rid of the order dated Nov. 8, 1951. The principle of res judicata applies even where it has not been made statutorily applicable, and is an immemorial principle governing civil litigation. Even that principle, if applied in this case, would make the second suit incompetent quite apart from the spirit
of Section 11 of the Code of Civil Procedure, as we know.'
Thus, the Supreme Court has clearly stated that in areas governed by 'the Rules.' the spirit of Sections 11 & 12 of the the Code is applicable. Without hesitation we come to the finale that the principles of res judicata are squarely applicable in Nagaland. At the some time we must observe that while applying the spirit of 'the code' the officers in charge of administration of justice should not introduce the letter of the Code by the back door. We make it clear that all the principles contained in the Code which are of universal application and beneficial to the members of the tribal community at large are applicable in Nagaland which is governed by the Rules for Administration of Justice. Rule 35 of the Rules inter alia indicates that the spirit of Sections 11 and 12 of the Civil Procedure Code is applicable in Nagaland governed by 'the Rules.' In this part of the land the basic principle of trial rests on three important expressions, justice, equity and good conscience. All these three elements are to be found in Sections 11 and 12 of the Code. They are just, they are an equitable provision, and they accord with good conscience. Legal order can be maintained on the basis of the said principles, otherwise chaos will rule the cosmos. There will be no end of litigations. Under these circumstances, we reach the conclusion that spirit of Sections 11 and 12 of the Civil Procedure Code are applicable in Nagaland.
4. The Deputy Commissioner, Wokha completely overlooked the true spirit behind Sections 11 and 12 of the Code and assumed that he had jurisdiction to try the dispute afresh. The previous Deputy Commissioner determined the disputed land. He directed the SDO, Mokokchung to demarcate the disputed land. The Deputy Commissioner, Wokha, on receipt of the complaint from the appellant should have directed the SDO, Wokha to demarcate 'equally the disputed land between villagers of 'H' and 'Y' instead of that he usurped his jurisdiction to try the dispute overlooking the final decision made by Mr. Carvelho, These are the grounds on which the order passed by the Deputy Commissioner and/or District Magistrate, Wokha in Land Dispute Case No. 1 of 1953 cannot be sustained.'
5. Accordingly we set aside the order and restore the order passed by Mr, Carvelho in his order dated 14-11-55 in Misc. Appeal No. 18 of 1955 and direct the Deputy Commissioner, Mokokchung to instruct the SDO, Wokha to divide the disputed land between 'H' and 'Y' villagers. The demarcation or division shall be made within three months from the date of receipt of this order. The SDO shall surely find the disputed land if he merely looks at the order dated 16-3-55 passed by Shri N. N. Bhuyan, in Misc. Case No. 6 of 1955.
6. In the result the impugned judgment and order are set aside. The appeal is allowed. Fines, if paid by the appellants, shall be returned to them. We leave the parties to bear their respective cost throughout.
7. Before parting we would observe that the Deputy Commissioner shall take a personal interest in the matter and cause the demarcation or division of the disputed land by the SDO at the earliest possible opportunity, if possible, before the expiry of three months as indicated above, as it is a long pending matter which needs early disposal.