1. This is a Second Miscellaneous Appeal under Rule 26 of the Khasi Stales (Administration of Justice) Order, 1950 from an appellate order of the learned Deputy Commissioned K. & J. Hills, who reversed the decision of the Durbar of the Siem of Mylliem which had in its turn reversed the decision of the elders of Bhoilasa who had decreed the suit of one Ka Jesi.
2. Before we proceed to consider the points raised before us, it is necessary to reproduce the geneological table which is as follows :
KA JATRI MYNTLAND (deceased)
Ka Shin (deceased) Ka Sajai (deceased)
_________|_______________ U Mitian (Defendant 1)
Ka Jesi (Plaintiff) Ka Pheli (deceased)
Ka Del Ka Sbab
3. Mr. Gupta for the respondents has raised a preliminary objection namely that no appeal lies to this court under Rule 26 of the Khasi States (Administration of Justice) Order, 1950. His contention is that the appeal before us is a third appeal and that there is no provision for a third appeal in the Khasi States (Administration of Justice) Order, 1950. Whether it is appropriate to number appeals coming from the K. & J. Hills as first, second and third appeals is immaterial for the purpose of interpreting Rule 26 which clearly contemplates an appeal to this court from an appellate order of the Deputy Commissioner. The order against which an appeal has been preferred is admittedly an appellate order. It matters not for the purpose of Rule 26 that the order of the Deputy Commissioner, K. & J. Hills is itself an appellate order from an appellate order of the Durbar of Siem.
4. Mr. Gupta next argued that assuming an appellate order of the Deputy Commissioner, K. & J. Hills against an appellate order of the Durbar of Siem is competent under Rule 26, it is incompetent under the same rule if the case involves a question of customary law. We asked Mr. Gupta to point out how a question of customary law arises in this case. He was unable to do so. Mr. Gupta concedes that the principle of inheritance is not in dispute. It is conceded that if the property originally belonged to Ka Jatri, the rightful owner of the property on succession will be Ka Sbab but that if the property originally belonged to Ka Sajai, the rightful owner on succession will be U Mitian. In other words, the question of customary law as to inheritance is not in issue. The courts below have not decided any question of customary law. They have come to varying conclusions as to the original ownership of the property. The trial court held that the property belonged to Ka Jatri, the first appellate court held that it belonged to Ka Sajai, the Deputy Commissioner held that it belonged to Ka Jatri.
5. On the merits of the appeal, we have decided to remand the case for retrial in view of the fact that Ka Sbab was not impleaded as a party to the suit filed by Ka Jesi. The trial court and the learned Deputy Commissioner, K. & J. Hills proceeded to decide the case as though Ka Sbab was a party to the suit. It is probably true that among Khasis the youngest female who is entitled to succeed to property, leaves the management of the property to the eldest female of the family. Ka Jesi being the
eldest female alive was apparently looking after the property and when she found that rights in the property were being invaded by U Mitian and his transferees, she brought the present suit and not Ka Sbab. Ka Sbab took no steps of any kind until after the Durbar of Siem set aside the judgment of the trial court. She then sent a petition to the Durbar, of the Siem of Mylliem bringing certain facts to Us notice. As however the Durbar of Siem had already given its decision, it took no action upon Ka Sbab's petition. When the matter came before the learned Deputy Commissioner on appeal, he apparently noticed the petition, and proceeded to decide the appeal as though Ka Sbab was a party to the suit. We think the proper course for the learned Deputy Commissioner was to reverse the decision of the Siem's Durbar and remand the case to the trial court for a decision in accordance with the provisions of the Khasi States (Administration of Justice) Order, 1950 after making Ka Sbab a party to the suit. As the learned Deputy Commissioner has not adopted this course, we set aside the judgment and decree of the learned Deputy Commissioner and remand the case for retrial by the elders of the village after making Ka Sbab a party to the suit. The suit will be registered in its original number.
6. In the circumstances of this case we make no order as to costs.
7. I agree.