1. The civil revision petition has been filed under Rule 32 of the Rules for Administration of Justice and Police in Nagaland (Third Amendment) Act, 1984 read with section 151 of the Code of Civil Procedure, 1908, challenging the Settlement Order dated 09/03/2010, passed by the Head Dobashi’s (D.B) Court Satakha in the district of Zunheboto, Nagaland and the Settlement Order dated 20/04/2017, passed by the District Head Dobashi Court at Zunheboto, Nagaland.

2. Heard Ms. Z. Zhimomi, learned counsel for the petitioner and Mr. N.K. Luikham, learned counsel for the respondent.

3. Amongst the Sumi (Sema) tribe of Nagaland, the succession to the Office of the G.B ship is hereditary and this customary practice has also been upheld by the Hon’ble Full Bench of the Gauhati High Court in the case of Tukiye & Another -versus- A.D.C (J), Zunheboto & Others, reported in 2019 (3) GLT(FB) 858. The Xuivi village has four G.B’s, two from the Xuivi clan as asserted by the petitioner but opposed by the respondent, one from the Sai clan and the other from Ghuhepu clan. Lt. Xuivi the founder of the present Xuivi village under Satakha Sub-division in the district of Zunheboto, Nagaland had six sons namely; (1). Sakuto (2). Chevukhu (3). Vioto (4). Yiovi (5). Yikishe and (6). Lhokiye. The present petitioner comprises the descendants of the five sons of Lt. Xuivi excluding the descendants of Sakuto, the eldest son of Lt. Xuivi who are the respondent’s herein. The issue in the present dispute is whether the two G.B ship of the Xuivi village excluding that from the Sai clan and the Ghuhepu clan commonly belongs to the Xuivi clan and is to be inherited by the descendants of each of the six sons of Lt. Xuivi on a rotation basis allowing the said descendants to don the mantle of the G.B ship of the village or whether one out of the two G.B ship exclusively belongs to Sakuto, the eldest son of Lt. Xuivi and is to be inherited only by his descendants. The petitioner’s supporting the former proposition while the respondent favouring the later. It is also the case of the petitioner that the issue of common succession to the two G.B ship of the Xuivi clan has been decided by Xuivi Village Council on 14/08/1999 which however has been strongly objected to by the respondent on the ground that none of the descendants of Sakuto was heard while passing the purported order dated 14/08/1999. This dispute which was brewing between the petitioner and the respondent for quit sometime came out in the open in the year 2009 on the death of Phuhozhe Zhimomi G.B of Xuivi village, one of the grandson’s of Lt. Sakuto. The descendants of the five son’s of Lt. Xuivi (i.e. the petitioner) nominated Shri. K. Hekiye Zhimomi as the G.B in place of Lt. Phuhozhe Zhimomi while Lt. Sakuto’s descendants nominated Shri. P. Kahuto Zhimomi, the present respondent as the G.B. Both the names nominated by the respective parties were submitted to the Sub-Divisional Officer (Civil), Satakha for appointment. The SDO (Civil), Satakha accordingly directed the Dobashi’s (D.B) Court Satakha to adjudicate the dispute and to submit the report for further necessary action.

4. The Head Dobashi Satakha, accordingly issued the Summon dated 03/03/2010, directing both the petitioner and the respondent to appear before the D.B’s Court on 09/03/2010 at 10:00 A.M. Both the parties appeared as summoned and after adjudication of the dispute the Settlement Order dated 09/03/2010 was passed by the D.B’s Court by arriving at the finding that the sons of Xuivi and the sons of Sakuto will have a separate lineage of G.B ship, thus deciding the dispute in favour of the respondent.

5. Against the Settlement Order dated 09/03/2010 passed by the D.B’s Court, Satakha, the petitioner appealed to the Deputy Commissioner, Zunheboto, Nagaland on 07/04/2010 which was endorsed to the Political Assistant to D.C (P.A to D.C), Zunheboto. However, after sometime, in the midst of adjudication before the P.A to D.C Zunheboto, the petitioner submitted the letter dated 24/08/2011 to the Deputy Commissioner praying for withdrawal of the appeal pending before P.A to D.C. The withdrawal was necessitated as the petitioner was advice that the P.A to D.C was not vested with the power to decide an appeal from the decision of the D.B’s Court. The Deputy Commissioner accordingly allowed the petitioner to withdraw the appeal on 24/08/2011. The respondent thereafter filed the representation dated 03/06/2016 to the Deputy Commissioner, Zunheboto questioning the action of the petitioner in withdrawing the case from the Court of the P.A to D.C Zunheboto. The representation filed by the respondent to the Deputy Commissioner, Zunheboto was endorsed to the District Head Dobashi’s Court, Zunheboto which was registered as JUD-01/2010-2016/Case No. 152/152/2010-2016 and in connection with which the summon dated 12/10/2016 was issued to both the petitioner as well as the respondent to be present before the Court on 24/10/2016. The District Head Dobashi Court, Zunheboto re-adjudicated the matter and issued the Settlement Order dated 20/04/2017 reaffirming the settlement order dated 09/03/2010 passed by the D.B’s Court at Satakha and declaring the rights of the respondent to exclusively succeed to the G.B ship of Nihoxu (Sakuto) clan.

6. It is against the Settlement Order dated 09/03/2010 passed by the D.B’s Court at Satakha and the Settlement Order dated 20/04/2017 passed by the District Head Dobashi Court, Zunheboto that the petitioner has approached this Court by filing the present civil revision petition. The petition is filed primarily on the ground that both the D.B’s Court at Satakha and Zunheboto has completely ignored the historical facts and the customary practices that the two G.B ship of the Xuivi clan is to be succeeded by the descendants of each of the six sons of Lt. Xuivi on rotation basis and that the descendants of Sakuto, the eldest son of Lt. Xuivi alone did not have the exclusive rights to succeed to one of the two G.B ship by maintaining a separate lineage.

7. After hearing the learned counsel for the parties, this Court is of the considered view that it may not be proper and appropriate for this Court to adjudicate on the issue as to whether the descendants of all the six sons of Late Xuivi should uniformly inherit and succeed to the two G.B ship of the Xuivi clan on rotation basis or as to whether only the descendants of Sakuto, the eldest son of Xuivi should be allowed to have the exclusive right to succeed to one of the two G.B ship to the exclusion of the other clan members of Lt. Xuivi, as such a complex question of facts may have to be proved by the parties by leading proper evidence in support of their rights/claims in an appropriate judicial forum.

8. The other important issue in the case which however raises the serious concern of this Court is on the question of the jurisdiction of the D.B’s Court at Satakha as well as the District Head Dobashi Court at Zunheboto to decide the dispute.

9. This Court shall first take up the issue as to whether the Sub-Divisional Officer (Civil), Satakha is the competent authority, empowered in law, to refer the dispute to the D.B’s Court at Satakha for adjudication, and if not, whether the D.B’s Court, Satakha, will have the jurisdiction to adjudicate and decide the case between the disputing parties.

10. Rule 2(c) of The Rules For Administration Of Justice And Police In Nagaland (Third Amendment) Act, 1984 then provides as follows;

“2(c).“Assistant to the Deputy Commissioner” in these Rules shall mean and include Officers appointed as such to exercise powers assigned under this Rules and shall also include Officers designated as Assistant to the Deputy Commissioner, Judicial as and when appointed, to administer Criminal and Civil Justice under this Rules.”

11. Rule 23A of The Rules For Administration Of Justice And Police In Nagaland (Second Amendment) Act, 1982 provides as follows;

“23A. “The Dobhasis hence forward shall try and decide such civil cases only as may be referred to them by the Deputy Commissioner or Additional Deputy Commissioner or Assistant to the Deputy Commissioner as the case may be.”

12. A bare perusal of the Rule-2(c) of the Rules makes it amply clear that the Assistant to Deputy Commissioner shall mean and include Officers appointed as such to exercise powers assigned under this Rules. Therefore, the question as to whether the Sub-Divisional Officer (Civil), Satakha is an Assistant to Deputy Commissioner under Rule-2(c) arises for the consideration of this Court. On a pointed query to the learned counsels for the parties as to whether the SDO (Civil) Satakha is appointed by the Government to exercise the power of Assistant to Deputy Commissioner, no affirmative answer has been forth coming from the learned counsels. There is also no material on record to show that the SDO (Civil) Satakha has been empowered by the Government to exercise the power of the Assistant to Deputy Commissioner as provided for under the rules. The Hon’ble Division Bench of this Court in the case of Alemtemshi Jamir & Others -versus- State of Nagaland & Others, reported in (2021) 4 GLR 248, while adjudicating on a question as to whether the Office of the Extra Assistant Commissioner can be equated as Assistant to Deputy Commissioner has held that the Office of the EAC can be empowered as Assistant to Deputy Commissioner under the rules provided the Government declares so. This judgment squarely covers the Office of the SDO (Civil) which is the next immediate higher post to that of the EAC in the hierarchy of the administrative service. This Court is therefore of the considered view that unless the SDO (Civil) Satakha is empowered to exercise the powers of the Assistant to Deputy Commissioner by the Government as provided for under the rules, the SDO (Civil) Satakha is disabled by law to refer any dispute for adjudication to the D.B’s Court and that being so, any decision rendered by the D.B’s Court on a reference made by the SDO (Civil) Satakha, not competent to do so, shall be without jurisdiction and cannot be considered as a decision being validly rendered under Rule 23A of the rules. It is needless to mention that the power of the D.B’s Court to decide civil cases is locatable in Rule 23A of the rules under which the D.B’s Court can only try and decide such civil cases as may be referred by the authorities prescribed under the said rules. Therefore, if the reference to decide case is not made by the prescribed authorities, as provided for, under the rules, the decision rendered by the D.B’s Court will be without jurisdiction being violative of Rule 23A of the rules and such a decision will be non-est and void ab initio.

13. The Hon’ble Supreme Court while adjudicating on the validity of a decree/order passed by the court without jurisdiction has in the case of Sarup Singh & Another -versus- Union of India & Another, reported in (2011) 11 SCC 198 held that;

“23. In Balvant N. Viswamitra v. Yadav Sadashiv Mule5 this Court stated thus: (SCC p. 712, para 9)

"9. The main question which arises for our consideration is whether the decree passed by the trial court can be said to be ‘null and void’. In our opinion, the law on the point is well settled. The distinction between a decree which is void and a decree which is wrong, incorrect, irregular or not in accordance with law cannot be overlooked or ignored. Where a court lacks inherent jurisdiction in passing a decree or making an order, a decree or order passed by such court would be without jurisdiction, non est and void ab initio. A defect of jurisdiction of the court goes to the root of the matter and strikes at the very authority of the court to pass a decree or make an order. Such defect has always been treated as basic and fundamental and a decree or order passed by a court or an authority having no jurisdiction is a nullity. Validity of such decree or order can be challenged at any stage, even in execution or collateral proceedings."

24. In Chiranjilal Shrilal Goenka v. Jasjit Singh6 this Court stated thus: (SCC pp.517-18, para 18)

"18. It is settled law that a decree passed by a court without jurisdiction on the subject-matter or on the grounds on which the decree made which goes to the root of its jurisdiction or lacks inherent jurisdiction is a coram non judice. A decree passed by such a court is a nullity and is non est. Its invalidity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right, even at the stage of execution or in collateral proceedings. The defect of jurisdiction strikes at the very authority of the court to pass decree which cannot be cured by consent or waiver of the party. ............."

14. So also in the case of Jagmittar Sain Bhagat & Others -versus- Director, Health Services, Haryana & Others, reported in (2013) 10 SCC 136, the Hon’ble Supreme Court held as follows;

“9. Indisputably, it is a settled legal proposition that conferment of jurisdiction is a legislative function and it can neither be conferred with the consent of the parties nor by a superior Court, and if the Court passes a decree having no jurisdiction over the matter, it would amount to nullity as the matter goes to the roots of the cause. Such an issue can be raised at any stage of the proceedings. The finding of a Court or Tribunal becomes irrelevant and unenforceable/in executable once the forum is found to have no jurisdiction. Similarly, if a Court/Tribunal inherently lacks jurisdiction, acquiescence of party equally should not be permitted to perpetrate and perpetuate defeating of the legislative animation. The Court cannot derive jurisdiction apart from the Statute. In such eventuality the doctrine of waiver also does not apply. (Vide: United Commercial Bank Ltd. v. Workmen1 , Nai Bahu v. Lala Ramnarayan2 , Natraj Studios (P) Ltd. v. Navrang Studios3 and Kondiba Dagadu Kadam v. Savitribai Sopan Gujar4 .)

10. In Sushil Kumar Mehta v. Gobind Ram Bohra5 this Court, after placing reliance on a large number of its earlier judgments particularly in Premier Automobiles Ltd. v. Kamlekar Shantaram Wadke6 , Kiran Singh v. Chaman Paswan7 and Chandrika Misir v. Bhaiya Lal8 held, that a decree without jurisdiction is a nullity. It is a coram non judice; when a special statute gives a right and also provides for a forum for adjudication of rights, remedy has to be sought only under the provisions of that Act and the Common Law Court has no jurisdiction; where an Act creates an obligation and enforces the performance in specified manner, “performance cannot be forced in any other manner.”

11. Law does not permit any court/tribunal/authority/forum to usurp jurisdiction on any ground whatsoever, in case, such an authority does not have jurisdiction on the subject matter. For the reason that it is not an objection as to the place of suing; “It is an objection going to the nullity of the order on the ground of want of jurisdiction”. Thus, for assumption of jurisdiction by a court or a tribunal, existence of jurisdictional fact is a condition precedent. But once such jurisdictional fact is found to exist, the court or tribunal has power to decide on the adjudicatory facts or facts in issue. (Vide: Setrucharlu Ramabhadraraju v. Maharaja of Jeypore9 , State of Gujarat v. Rajesh Kumar Chimanlal Barot10  Harshad Chiman Lal Modi v. D.L.F. Universal Ltd.11 and Carona Ltd. v. Parvathy Swaminathan & Sons12.”

15. In the instant case the D.B’s Court at Satakha has adjudicated the dispute between the petitioner and the respondent on an endorsement of the case by an authority not competent to do so under the rules, the consequent settlement Order dated 09/03/2010 passed by the D.B’s Court is therefore a nullity being passed without jurisdiction and the order dated 09/03/2010 cannot be enforced to decide the rights of the parties, irrespective of the fact that the parties have participated in the proceedings of the case.

16. In so far the Settlement Order dated 20/04/2017 passed by the D.B’s Sumi Customary Court Zunheboto/District Head Dobashi’s Court Zunheboto is concerned, it is seen that consequent to the order dated 09/03/2010 passed by the D.B’s Court Satakha, the petitioner had filed the appeal dated 07/04/2010 to the Deputy Commissioner, Zunheboto. The appeal was endorsed to the Political Assistant to the Deputy Commissioner (P.A to D.C Zunheboto). The petitioner however in the midst of the proceedings before the P.A to D.C submitted the application dated 24/08/2011 to the Deputy Commissioner, Zunheboto for withdrawing the case pending before the P.A to D.C on the ground that the P.A to D.C was not vested with the power to decide the appeal from the decision of the D.B’s Satakha. The petitioner was accordingly allowed to withdraw the appeal on 24/08/2011. The respondent thereafter filed the application dated 03/06/2016 to the Deputy Commissioner, Zunheboto, questioning the withdrawal of the case by the petitioner from the Court of P.A to D.C. The Deputy Commissioner however instead of disposing the application filed by the respondent, endorsed the matter to the District Head Dobashi’s Court Zunheboto which was registered as JUD-1/2010-Case No.152. The District Head Dobashi’s Court then re-adjudicated the entire case and by the order dated 20/04/2017 reaffirmed the Settlement Order dated 09/03/2010 passed by the D.B’s Court Satakha by declaring the exclusive rights of the respondent to the G.B ship.

17. It is now a well settled legal position that the Dobashis’s Courts have concurrent jurisdiction to try and decide cases and therefore one D.B’s Court cannot sit in appeal over the decision of another D.B’s Court either to affirm or set aside the order/decision of the former D.B’s Court. In the present case, this settled proposition of law was ignored by the Deputy Commissioner, Zunheboto by endorsing the application filed by the respondent to the District Head D.B’s Court on a matter already decided by the D.B’s Court Satakha, though without jurisdiction.

18. A learned Co-ordinate Bench of this Court in the case of Nguzukhe & Another -versus- Yetomo, reported in (1992) 2 Gau LR 212 has held that;

“11. The next submission of the learned counsel for the petitioner that one D.Bs court do not have any jurisdiction to set aside another D.Bs court is well founded in law and therefore must prevail.

12. Rule 31 of the rules for the administration of justice in Naga Hills district 1937 provides that an appeal shall lie from the decision of the Mauzadar, Gaonbura, Chief, Headmen of a khel or others duly recognised authorities (to the tribal court whenever constituted or otherwise) to the Deputy Commissioner or his Assistant. It is noticed that no mention of D.Bs court is found under Rule 31 however, by (Nagaland Act No. 4/1983) the rules for administration of justice and Police in Naga Hills district was further amended and by this amendment the word Dubashis has been inserted after the word "Headmen of a Khel."

13. A cursory reading of Rule 31 of the rules as amended by the Second amendment Act (Nagaland Act No. 4 of 1983) it clearly posits that an appeal from the decisions of D.Bs and other authorities mentioned under Rule 31 lies to the Deputy Commissioner or his Assistants. The D.Bs are not Assistant to the Deputy Commissioner under the Rules. Therefore one D.Bs court have no jurisdiction to set aside the judgment and order passed by another D.Bs court.”

19. So also in the case of Hevuto Chishi & Others -versus- State of Nagaland & Others, passed in W.P.(C) No.210 (K) 2014 the learned Co-ordinate Bench of this Court after referring to Rule 31 of the Principal Rule and Rule 2(c) of the rules as amended has held that;

“21. Going by the provisions as contained in the Rules and Rule 2(c) in particular, this Court is of the considered opinion that the Political Assistant to the Deputy Commissioner is not vested with any judicial powers by the Rules and therefore, has no power to hear appeals against an order passed by the Dobashi Court.

22. In the facts and circumstances of the case, the order dated 07/10/2013 passed by the Political Assistant to D.C in Judl-1/10/08 Case No. 08/12 is hereby quashed and set aside. Consequently, the order dated 19/10/2013 passed by the Sub-Divisional Officer (C), Akuluto and the order dated 13/09/2014 appointing the respondent No.5 as G.B of Sutemi village are also quashed and set aside.”

20. Furthermore in the case of Alemtemshi Jamir & Others -versus- State of Nagaland & Others, reported in (2021) 4 GLR 248, the Hon’ble Division Bench of this Court has held that;

“23. Having discussed the points of reference, we now answer the issues of reference as under :

(1) Dobashis cannot be empowered as appellate court by the exercise of powers under rule 23A. Rule 31 debars DC/ADCs and his assistants from such authority.

(2)………………………….. “

21. This Court is in respectful agreement with the decisions passed by the learned Coordinate Benches and the Hon’ble Division Bench.

22. It is equally a well settled proposition of law that if the order passed by a Court is bad for want of jurisdiction then all further proceedings consequent thereto shall be void and non est in law. In the present case, the Settlement Order dated 09/03/2010 passed by the D.B’s Court Satakha without jurisdiction being bad since inception, the subsequent Settlement Order dated 20/04/2017 passed by the District Head Dobashi’s Court Zunheboto reaffirming the first Settlement Order dated 09/03/2010 of the D.B’s Court Satakha must be treated as inconsequential and non est in law.

23. The Hon’ble Supreme Court in the case of Ritesh Tewari & Another -versus- State of Uttar Pradesh & Others, reported in (2010) 10 SCC 677 has laid down as follows;

“32. It is settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironical to permit a person to rely upon a law, in violation of which he has obtained the benefits. (Vide Upen Chandra Gogoi Vs. State of Assam20; Satchidananda Misra Vs. State of Orissa21 and SBI v. Rakesh Kumar Tewari22.)

33. In C. Albert Morris Vs. K. Chandrasekaran23 this Court held that a right in law exists only and only when it has a lawful origin.

34. In Mangal Prasad Tamoli Vs. Narvadeshwar Mishra24 this Court held that if an order at the initial stage is bad in law, then all further proceedings consequent thereto will be non-est and have to be necessarily set aside.”

24. So also in the case of Rajasthan State Industrial Development & Investment Corporation -versus- Subhash Sindhi Cooperative Housing Society, Jaipur & Others, reported in (2013) 5 SCC 427, the Hon’ble Supreme Court has held that;

“18. The word “void” is used in the sense of incapable of ratification. A thing which is found non-est and not required to be set aside though, it is sometimes convenient to do so. There would be no need for an order to quash it. It would be automatically null and void without more ado. The continuation orders would be nullities too, because no one can continue a nullity. (Vide: Behram Khurshid Pesikaka v. State of Bombay12 , Pankaj Mehra v. State of Maharashtra13 , Dhurandhar Prasad Singh v. Jai Prakash University14 and Government of Orissa v. Ashok Transport Agency15.)”

25. In the light of the discussions made above, this Court is of the considered opinion that the Settlement Order dated 09/03/2010 passed by the D.B’s Court Satakha being passed without jurisdiction is bad in law and liable to be quashed and set aside. Consequently, the Settlement Order dated 20/04/2017 passed by the District Head Dobashi’s Court Zunheboto reaffirming the Settlement Order dated 09/03/2010 passed by the D.B.’s Court Satakha which is bad since inception is also liable to be quashed and set aside. Both the Settlement Order dated 09/03/2010 passed by the D.B’s Court Satakha as well as the Settlement Order dated 20/04/2017 passed by the District Head Dobashi’s Court Zunheboto are accordingly quashed and set aside. Any appointment made to the post of G.B consequent to the above settlement orders is also quashed and set aside. The prayer of the petitioner for common succession to the two posts of G.B ship from the descendants of each of the six sons of Lt. Xuivi on a rotation basis is also rejected.

26. The petitioner is hereby given the liberty to approach the competent civil court by filing a proper suit for declaration, if so advised. All contentious issues raised by both the petitioner as well as by the respondent shall be adjudicated and decided in the suit by the parties by leading proper evidence to establish their rights in accordance with law. The petitioner is hereby allowed 3(three) month’s time to file the suit, if so advised, from the date of the receipt of a copy of the judgment & order.

27. The civil revision petition stands allowed to the extent indicated above.

28. Send back the LCR forthwith.