Ningom and Others vs Samjamang, Chief

S.N. Phukan, J.—This second appeal is by Defendants.

Plaintiff is the Chief of Tollen village and belongs to Kuki Tribe. The suit was file for declaration of title and eviction of the Defendants from the suit land. Plaintiffs has urged that he was the absolute owner of the said village for about 100 years since the time of his predecessors and according to custom of the Kuki Tribe the entire land of the village belongs to the Chief and the villagers are mere licensees. Plain tiff and his predecessor used to sale thatched grass and other forest produce and used to get Lambal (rent in cash or kind) for cultivation by outsiders within the village land, The description of the village land has been given. It has been pleaded that predecessors of the Plaintiff allowed a village known as Thingkangbung to be established within the above village of the Plaintiff and subsequently the Chief of the new village was also allowed to pay house tax separately. It has been alleged that in or about the month of April, 1969 Defendants forcibly started to occupy a portion of the village of the Plaintiff known as Momlouching by constructing dwelling houses and living thereon with their families without consent. The said land has been described in the schedule to the plaint and is the suit land. In view of the above dispossession, present suit has been filed.

The suit is resisted by the Defendants and it has been denied that the said village Tollen has been in existence for about 100 years and Plaintiff or his predecessors-in-interest has been in use or enjoyment of the land. The custom alleged by the Plaintiff�s has been denied. The allegation of forceful occupation of the land by the Defendants has also been deuled. According to Defendants, the suit land is a part of the village land known as Mongoon or Mumlao village and the said village belonged to the fore fathers of the Defendants. For certain reasons, fore fathers of the Defendants left the village and shifted to Lairam Khullen, About 13 years before filing of the suit, Defendants and their villagers shifted Again to the above village Mangoon and at present they are residing there i.e. the Suit land. It has been averred that the Defendants and otter villagers have been occupying the suit land for more than 12 years as of right peacefully, adversely, without any interruption and thereby they have acquired rights by adverse possession.

The learned trial court dismissed the suit which was reversed by the learned lower appellate court. Hence, the present appeal.

We have heard Mr. L. Nandakumar Singh, for the Appellant and Mr. T. Bhuban Singh for the Respondents.

The main contentions of Mr. Nandakumar Singh is that Kuki is not a Tribe and that word Kuki has been used in the generic sense. According to learned Counsel, in view of this fact there cannot be a custom for Kukis. This is a new plea taken before us and it was not pleaded in the pleadings. In view of the settled law that no amount of evidence can be looked into if the facts arc not pleaded. On this ground alone, this contention is liable to be rejected. However we may note the contentions of the learned Counsel.

Reliance has been placed on ''''The Lushai Kuki Clans" by Lt. ''Col. 1. Shakerspoar which was published under the orders of Govt. of Eastern Bengal and Assam In the year 1912. In the introduction, the learned author has stated that he might enlarge the scope of the mongraph by including all Clans of Kuki Race''. From page 1 we find that the learned author noted that all the Lushai Kuki Clans resemble each other very closely in appearance and at page 3 it was recorded that "the Lushais. in common in Thados and other Kuki Tribes''. According to learned author it was (sic) that the Country in which various Thangur Chiefs moved, under pressure from the Chius was almost entirely occupied by small communities having no power of cohesion and the greater part of these were absorbed, and now form the majority of the subject of the Thangur Chief; but some filed North and West into Manipur, Silchar, Sylhet and Tipperah where they were known as Kukis (vide page 5 & 6), From this book we find that in 1977 there were frontier disturbances in Chittagong ascribed to "Kukis" men who lived far in the interior part of bills, We quote below the observation of the learned author at page 8 "nevertheless there is no doubt that the Kukis, Cuius and Lushals are all of the same race," In. Chapter II reference to ''old Kukis'' has also been made and in Chapter IV to the term ''New Kukis''.

On the bails of the above, learned Counsel has tried to urge that Kuki is not a Tribe and in this connection our attention has beeo drawn to Chapter I of the book "The Thadou Kukis'''' by William Shaw (1st published in 1929). Our attention has also been drawn to "A Short Account of Kuki (sic) Tribes of the North Eastero Frontier" by C.A. Soppitt (1st published in 1983), In Chapter I at page 1, the learned author recorded as follows:

the designation ''Kuki is unknown to the tribes now so-called by the plains people. What the derivation of the term may be it is bard to say. "Kou" in the language of the people now called "Lushais" and in the dialects of the Kuki Tribes, signifies "a village".

In the introduction to "Thadou, a Grammatical Sketb" published by Anthropological Survey of India (1980) it has been recorded that though the term ''Kuki'' has been used for Lushais, Lakher and some other tribes of the North Eastern Region of India, they are divided into two groups, old Kuki and new Kuki.

In reply Mr. T. Bhuban Singh has drawn our attention to-the Statistical Account of Manipur by R. Brown, first published in 1874, wherein at page 47, the learned author recorded as follows:

The only tribes of hill-men of Manipur rule left to be described arc those of the Kukis.....and first of the largest Kuki Tribes, the Khongjai.

According to learned Counsel, the Kuki Tribes were there and they are recognised as such. We find considerable force in the contention of the learned Counsel as from the above authorities placed before us by Mr. Nandakumar, we cannot come to the definite findings that Kuki is not a Tribe.

Our attention has also been drawn to "The Chin Hills" by Carey and Tuck, 1st published in 1932 moire particularly to Chapter III. We need not burden out judgment by quoting the above observation.

Mr. T. Bhutan Singh has also placed reliance in a decision of this Court in Chitui Naga Vs. Onhen Kuki, This was in respect of litigation between two Chief belonging to Kuki and Naga Tribes. On the basis of this decision, more particularly in para 9, learned Counsel has urged that Kuki is a tribe duly recognised by the courts, Misao is a sub-tribe of Kuki and learned Counsel for the Respondents has also drawn our attention to a decision of this Court in M. Gulap Singh and Others Vs. The Union of India (UOI) and Others, and in this case Mr. Nandakumar, learned Counsel for the Appellants appeared for the Petitioner and this point that Kuki is not a Tribe was never taken up. To support the above submission, the learned Counsel for Che Respondents has placed reliance on a decision of the learned Judicial Commissioner in Civil Writ Application Case No. 12 of 1960 and it was also a case between two chiefs belonging to Kuki and Naga Tribes.

In view of the Constitution (Schedule Tribes) Order 1950 issued by the President of India under Article 342 of the Constitution and the Constitution (Nagaland) Schedule Tribei Order, 1970 issued under the said Article, we need not consider the contentions of Mr. Nandakumar, learned Counsel for the Appellants. In the Schedule in part II relating to Assam in respect of Autonomous Districts item No. 7 runs as follows:

Any Kuki Tribes, including

(i) Biate, Biate (xvii) Bhelma

(ii) Changsan (xviii) Kholhou

(iii) Chongloi (xix) Kipgen

(iv) Doungel (xx) Kuki

(v) Gamalhou (xxi) Lengthang

(vi) Gangte (xxii) Lhangum

(vii) Guite (xxvi) Lhoujenm

(viii) Hanneng (xxiii) Lhouvun

(ix) Haokip, Haupit (xxv) Lupheng

(x) Haolai (xxvi) Mangjel

(xi) Hengna (xxvii) Misao

(xii) Hongsungh (xxviii) Riang

(xiii) Hrangkhwal, Rangkhol (xxix) Sairhem

(xiv) Jongbe (xxx) Selnam

(xv) Khawchung (xxxi) Singson

(xvi) Khawathlang, Khothalong (xxxii) Sitlhou

(xxxiii) Sukte (xxxv) Thangngen

(xxxiv) Thado (xxxvi) Uibuh

(xxxxvii) Vaiphei.

The above item No. 7 has also been introduced under part XI for the state of Meghalaya. For the State of Nagaland Entry No. 2 under the Schedule, only the Tribe ''Kuki'' has been mentioned although for the State of Manipur ''Kuki'' as a Tribe has not been mentioned, but three sub-tribes appearing in Assam List under Kuki Tribe have been mentioned, These are Gangte, Thado and Vaiphel.

In view or the above Presidential Orders we hold that Kuki is a Tribe and there are as many as 37 sub-tribes within this Tribe. So the contention of learned Counsel for the Appellant has no force.

Another point which has been urged on behalf of Respondent is that even if Kuki is not a Tribe, the Chief of the village has got a right to sue for eviction of any tresspasser, Even if this contention may have force, we need not go into this matter as, in our opinion suit filed is maintainable and the averments in the plaint have been proved and as such it was rightly decreed by the learned lower appellate court.

Mr. T. Bhuban Singh, learned Counsel for the Respondents has placed before us a decision of the apex court in Ujagar Singh Vs. Jeo, wherein it was laid down that ordinary rule is there all the customs, generator otherwise have to be proved u/s 57 of the Evidence Act; however, nothing need be proved which. courts can take judicial notice. When a custom, has been repeatedly recognised by the courts, it passes into law of the land and the proof of it then become unnecessary u/s 57 of the, Evidence Act According to learned Counsel, in view of the above decisions of this Court, as well as, the learned Judicial Commissioner, the case proceeded on the assumption that "Kuki" is a Tribe, We find considerable force in this contention.

Coming to the impugned judgment, we have gone into the judgments carefully and the learned lower appellate court formulated three points and point No. 2 was "whether Chief is the owner of the land belonged to the village?" Both the courts below have elaborately considered the evidence on record and also decision of this Court reported in AIR 1961 Manipur 21. From the evidence, we find

Teble missing that Defendants also Admitted that according to Kuki Custom, Chief it the owner of the land and the villagers are licensees. Though Mr. Nandakumar has tried to find fault with the findings of the learned courts below on this point, but his submissions is not convincing.

Situated thus, we hold that Kuki is a Tribe and they belonged to members of Schedule Tribes in the States of Assam, Meghalaya, and Nagaland and this Tribe has got sub-tribes numbering about 37. Three such sub-tribes are also Schedule Tribes for the State of Manipur. We further hold that according to Kuki Custom, the Chief is the owner of the land of the entire village and be gets Lamban (rent in cash or kind) from the villagers. We, further hold that the office of the Chief is a he elditary one.

In view of what has been stated above, we find no merit in this appeal and accordingly it is dismissed. No costs.