Gauhati High Court - Kohima
Kavito Yepthomi And 2 Ors vs The State Of Nagaland And 3 Ors on 6 April, 2026
Page No.# 1/31
GAHC020005432023 2026:GAU-NL:209
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
KOHIMA BENCH
Case No. : WP(C)/230/2023
KAVITO YEPTHOMI AND 2 ORS
S/O NIHOTO YEPTHOMI,
R/O YANGZITONG B VILLAGE,
DISTRICT KIPHIRE, NAGALAND
2: KHEHOTO YEPTHOMI
S/O TOKHEHO YEPTHOMI
R/O YANGZITONG B VILLAGE
DISTRICT KIPHIRE
NAGALAND
3: DR. KAKETO YEPTHOMI
S/O HOKHEI YEPTHOMI
PRESENTLY RESIDING AT THILIXU VILLAGE
DISTRICT CHUMUKEDIMA
NAGALAN
VERSUS
THE STATE OF NAGALAND AND 3 ORS
REPRESENTED BY THE PRINCIPAL SECRETARY/ SECRETARY,
DEPARTMENT OF LAW AND JUSTICE,
GOVERNMENT OF NAGALAND,
KOHIMA, NAGALAND
2:KHESHITO YEPTHOMI
Page No.# 2/31
S/O LATE LUHOKHU YEPTHOMI
R/O YANGZITONG B VILLAGE
DISTRICT KIPHIRE
NAGALAND
REPRESENTED BY HIS LEGAL HEIRS/REPRESENTATIVES-
1.NIKAHO YEPTHO
2. HOKATO YEPTHO
3. INAHO YEPTHO
4. KIVIKHU YEPTHO
5. VINOTO YEPTHO
6. KITOKA YEPTHO
3:KHEHUTO YEPTHOMI
S/O LATE KOTOI YEPTHOMI
R/O YANGZITONG B VILLAGE
DISTRICT KIPHIRE
NAGALAND
4:THE YANGZITONG VILLAGE COUNCIL
REPRESENTED BY THE CHAIRMAN
YANGZITONG VILLAGE
DISTRICT KIPHIRE
NAGALAN
- B e f o r e-
HON'BLE MR. JUSTICE ROBIN PHUKAN
Advocates for the petitioner : Mr. A. Zhimomi
Advocate for the respondents : Mr. Imti Imsong
Addl. A.G. for respondent No.1;
Mr. C. T. Jamir, Senior Counsel,
assisted by Mr. Aliba Ozukum, for respondent
Nos. 2 & 3.
Page No.# 3/31
Date of which Judgment is reserved : 29.01.2026
Date of pronouncement of Judgment : 06.04.2026
Whether the pronouncement if of the : N/A
operative part of the Judgment?
Whether the full judgment has been pronounced? : Yes
JUDGMENT & ORDER (CAV)
Heard Mr. A. Zhimomi, learned counsel for the petitioners and Mr.
Imti Imsong, learned Additional Advocate General for the State
respondent No. 1. Also heard Mr. C. T. Jamir, learned Senior Counsel
assisted by Mr. Aliba Ozukum, learned counsel for the respondent Nos. 2
& 3.
2. In this petition, under Article 227 of the Constitution of India, the
petitioners have challenged the Settlement Order, dated 29.01.2004,
passed by the Gaonburas' Board, Yangzitong 'A' and Yangzitong 'B' village
and the Settlement Order, dated 16.04.2004, passed by the Do Bhashis'
Court, Seyochung; and also prayed for granting permission to the
petitioners or any aggrieved party to take appropriate steps before a Court
of competent jurisdiction to adjudicate and settle the dispute of
Chieftainship in Yangzitong 'B'/Khukiqhe village.
Background Facts:-
3. The background facts, leading to filing of the present petition, is briefly stated as under-
"In the year 1878, one Ilitu, followed by his son Yezuthu, Page No.# 4/31 established Yezuthu village. Along with them, Sangtam tribesmen from Yangpher and Yezashimi villages were also there. The village came to be known as Yezuthu Village. Yezuthu and Khukiqhe settled with their respective followers in separate areas of the village and in accordance with the customs and practices, each of them exercised jurisdiction in their respective areas.
Thereafter, in the year 1914, one Shoiho Yepthomi, the forefather of the respondents Nos. 2 and 3 also came to reside in Yezuthu Village.
Thereafter, according to Sumi customs and practices, since he arrived in the village after its establishment, he was not allowed to enter the village for 3 (three) days and 3 (three) nights and he was also disqualified from claiming any right to any position of authority in the village.
Thereafter, discord surfaced between the Sumi and Sangtam tribesmen, resulting in division of the Yezuthu village. The name of Yezuthu Village was changed to Yangzitong Village. Then sometime in the year 1916, Khukiqhe, Shoiho and their followers moved away from Yangzitong Village and established their own village, namely, Khuqikhe Village. Khukiqhe himself became the Chief of the village and ruled till his death, sometime in or about 1920. After his death, his descendants succeeded to the Chieftainship and the said position is presently being held by the petitioner No. 1 at present.
Thereafter, in the year 1954, the ancestor of petitioner No. 1, Sahoi Yepthomi, the then Chief of the Khukiqhe village, allowed Page No.# 5/31 Luhokhu Yepthomi, the son of Shoiho Yepthomi, to take on the position of Assistant Chieftainship. This line of Assistant Chieftainship is now being held by Shoiho's descendant, Khehuto Yepthomi, the respondent No. 3.
Yangzitong and Khukiqhe Villages existed as two independent villages. However, for the purpose of receiving State largesse, sometime in the year 1984/1985, the then ADC, Kiphire directed Yangzitong and Khukiqhe villages to have a single Chief, Village Council and Village Development Board. As a result, the two villages came to be known as 'Yangzitong A' and 'Yangzitong B' and began functioning with one Chief, Village Council and Village Development Board.
Thereafter, in the year 2004, the respondent No. 2 submitted a complaint, dated 28.01.2004, to the "GBs Court and Village Council Chairman of Yangzitong 'A' and 'B' Villages", praying for a settlement of the dispute between the descendants of Shoyiho (Shoiho) and Khukiqhe in relation to the establishment of Yangzitong 'B' Village.
Thereafter, by a Settlement, dated 29.01.2004, the said "GBs Board, Yangzitong 'A' and Yangzitong 'B' Village" decided that the descendants of Shoyiho (Shoiho) should be the first in the establishment of Yangzitong 'B' Village, meaning thereby, the descendants of Shoiho had the rightful claim to the Chieftainship of Yangzitong 'B' Village.
Against the said Settlement, the petitioner No. 1 submitted a Page No.# 6/31 complaint dated 10.02.2004, to the Village Council and by a Letter, dated 27.02.2004; the Village Council had forwarded the complaint to the Dobashis Court, Seyochung.
Thereafter, by a Settlement, dated 16.04.2004, the Dobashis Court held that Shoiho was the first to shift to the Yangzitong 'B' and that both Yangzitong 'A' and Yangzitong 'B' villages should follow the verbal directions of the then ADC, Kiphire that there should be only one Chief for Yangzitong 'A' and Yangzitong 'B' villages.
The issue of Chieftainship in Khukiqhe/Yangzitong 'B' Village is affecting the peaceful coexistence of the villagers and as such, the issue of Chieftainship in Khukiqhe/Yangzitong 'B' village needs to be resolved, so that the dispute can be put to rest.
As per prevailing rules, i.e., the Rules for Administration of Justice and Police in Nagaland, 1937, the "GBs Board, Yangzitong 'A' and Yangzitong 'B' Village" has no power/jurisdiction to decide the dispute between the petitioners, representing Khukiqhe's lineage and the respondents Nos. 2 and 3, representing Shoiho's lineage.
Therefore, the Settlement dated 29.01.2004, is illegal, without jurisdiction and non-est in the eye of the law. Moreover, the Dobashis Court, Seyochung, is also not an appellate Court and cannot try any dispute, unless such dispute is endorsed to it by the Deputy Commissioner or his Assistant. And as such, the Settlement, dated 16.04.2004, is illegal, without jurisdiction and non-est in the eye of the law.
Thereafter, Judiciary is separated from the Executive and by Page No.# 7/31 adoption of the Nagaland Judicial Service Rules, 2006, Judicial Courts have been established. However, there is a disconnection between the Customary Courts, functioning under the Rules of 1937 and the Judicial Courts and this issue has been referred to the Hon'ble Chief Justice by the Judgment and Order, dated 08.04.2022, in Civil Revision No. 05/2020. And under the given facts and circumstances, the petitioners are desirous of approaching a court of competent jurisdiction, in relation to the dispute of Chieftainship in Khukiqhe/Yangzitong 'B' Village and for the said purpose, the Settlement of the "GBs Board, Yangzitong 'A' and Yangzitong 'B' Village", dated 29.01.2004 and the Settlement of the Dobashis Court, Seyochung, dated 16.04.2004, may stand in the way and since the aforesaid Settlements are illegal, without jurisdiction and non-est in the eye of law, the same are liable to be quashed and set aside."
4. Therefore, the petitioners have approached this Court by filing the present petition, to set aside the aforesaid Settlements and permit the petitioners or any other aggrieved party, to approach a court of competent jurisdiction, with regard to the issue of Chieftainship in Khukiqhe/Yangzitong 'B' Village." Under the aforementioned facts and circumstances, it is contended to allow this petition.
5. The respondent Nos. 2 & 3 has filed their affidavit-in-opposition, denying he statements and averments made by the petitioners. It is stated that there was no circumstances or instances, which were in the role to be played by a Khukiqhe and in fact, Khukiqhe happens to be there at Yangzitong village just for the simple reason of saving his life and his Page No.# 8/31 family from Viyixe in the year 1905, long after Yangzitong village had been established and as such, the claim of Khukiqhe and his supposedly followers of joining Yangzitong (Yezuthu) in the establishment of the village is fabricated and cooked up story and holds no merit.
5.1 It is also stated by the respondent Nos. 2 & 3 that in fact, Shoiho Yepthomi, leaving his peaceful and comfortable life at his father's village (Khukishe) and coming to rescue/salvage Yangzitong (Yezuthu) village, which was established by his elder brothers Inato and Nikhuyi, on receipt of the distress call from Yangzitong (Yezuthu) through Serithsu, which was facing existential crisis, ranging from constant threat from superior rival in the name of Ghuvishe, who initiated the border dispute by claiming the land from Athughoki to Horumighuzula and erecting border stone pillars from within the vicinity of Yangzitong village and camping at Yangzitong village and attacking Seyochung village twice in the year 1911 and 1912, with ill intention to attract and incite Seyochung village against Yangzitong/Yezuthu village; and the enemy attacked from several villages (Kitami, Langzar, Natsar, Lankok, Chanchor and Horunger) in the year 1907, led by one Warlord Thotsumu of Kitami village; who had taken away 30 (Thirty) heads from Yangzitong village and the ensuing peace and tranquility, that prevailed after Shoiho's arrival, defies all logic and reasoning that he, along with such a large number of his followers, were not allowed to enter the village for three (3) days and three (3) nights. Further, there is no such Sumi custom and practices which debars persons from entering the village for three days and three nights as a late comer and that, if Khukiqhe had such an authority or followers/warriors at his command, he would not have lived as an ordinary citizen of the village, Page No.# 9/31 before the arrival of Shoiho and therefore, the claim of the petitioner is a blatant lie and a concocted story, projected with ill motives, with no historical basis.
5.2 It is further stated by the respondent Nos. 2 & 3 that the discord between the Sumis, who came with Shoiho and Itovi from Khukishe Village and the Sangtams, who were living at Yangzitong village, arose due to strict practice of their respective customary rituals and practices, which led to major division among the villagers, often resulting in conflicts and fights among them, which is detrimental to the peaceful coexistence in the village. Hence, the two brothers - Yangzitong and Shoiho, came to an agreement that Tuccu-shi and Shoto-shi cannot coexist together and therefore, before the village ceases to exist, Shoiho should take Shotoshi and establish his own village. Accordingly, Shoiho took his men, along with four Sangtam household and Khukiqhe family and established his village, as of now, Yangzitong 'B' village. However, the rest of Sumi, who came with Yangzitong/Yezuthu continued to stay with him and did not come to the new village and that, Khukiqhe was nowhere in the picture when this was happening and he too decided to follow the Shoiho group later only on his request, when one of his in-laws by the name Pulhozu, informed him about the agreement/ understanding/ arrangement arrived at, between Yangzitong and Shoiho for the establishment of new village and the fact that he was allowed to follow the group of Shoiho was because of the fact that he happens to be the cousin of Shoiho. Therefore, the question of late comer, having no right to claim any position of authority in the village, does not arise as Khukiqhe himself came much later, after the establishment of Yangzitong village in the year 1905, as an escapee, to Page No.# 10/31 save his life from Viyixe, which can also be corroborated from the Book, 'The Yepthomi Chronicles' at page 111 under NOTE: No. 4 which reads -
"Viyexengo Khukiqhe kumakidi - mokeghenguno kuma aa lakhi lo ngomula veno Khukiqhe ye Yezashi Phu lo wuve", which means that Viyexe and Khukiqhe had animosity against each other and therefore, they could not stay together and Khukiqhe went away to Yezashi village, which was published based on the article submitted by one of Khukiqhe's clan member by the name Hetori, grandson of Viyixe and GB of Viyixe village.
5.3. It is also stated by the respondent Nos. 2 & 3 that Shoiho indeed came with power and authority with his men at his back and upon receipt of request, came to save the village that was on the verge of extinction and moreover, he did not continue to live at Yangzitong village, but he established his own new village after some years and the contention/dispute between the petitioner and the respondent is in this new village. Hence, the petitioner is unclear of his position and the place of the village and he is referring to and coming up with inconsistent and confused history and it is not understandable to get confused into one's own history, when the life of Khukiqhe was so unstable that he immigrated to eight places (Suminatsa ꟷ Khukishe ꟷ Surumi Ghughu-aa ꟷ Thokihemi ꟷ Suminatsa ꟷ Viyixe ꟷ Yezashi ꟷ Yangzitong ꟷ Yangzitong B/Shoiho) in his life time. This clearly indicates that the petitioner is confused of his own history due to his unstable life, migrating from place to place and the fact of him fleeing from Viyixe village can be corroborated by the fact that Yangzitong's younger brother Serithsu and Zuvihe, who brought Khukiqhe and family safely to Yangzitong village from Yezashi village and thereafter, sent another 30 warriors from Ivukha Page No.# 11/31 Awomi clan and Shovishe Yepthomi clan to fetch the belongings of Khukiqhe from Viyixe village to Yangzitong village.
5.4. Further, the respondent Nos. 2 & 3 stated that in the village establishment history, there is nothing worth mentioning about the importance or role played by Khukiqhe, nor did he has any followers/warriors in the establishment of Yangzitong 'B'/Shoiho village, which is the legitimate requirement for the establishment of village in the customary practices of Sumi, nor did he come to Yangzitong village with his followers/warriors; but, came solely to escape and save his life from Viyixe and as such, the petitioners may substantiate the claim, by mentioning the names of the followers/warriors, brought by Khukiqhe in the establishment of Yangzitong village and also his followers in the establishment of Yangzitong 'B'/Shoiho village. And as such, the claim of the petitioner that Yezuthu commanded a condition that Khukiqhe and company should migrate, as 'Shotoshi' is quite absurd and if Yezuthu informed Khukiqhe to take his followers and establish his own village, then the petitioners could have substantiate their statement with relevant evidence to refute the evidence given by Late Itokhu, Head GB of Yangzitong (Yezuthu) village and grandson of Yangzitong (Yezuthu), before the DB's court, Seyochung and the whole public of the village that his grandfather Yangzitong told Shoiho to take his men and establish his own village, which was concurred by all the witnesses representing all the clans of the village; and that the village establishment history of Yangzitong 'B'/Shoiho village is crystal clear, where relevance of Khukiqhe is absolutely nil and which the whole Yangzitong 'A' & 'B' villagers know and perhaps, the defense personnel who might be crossing the village Page No.# 12/31 during that time might have encountered upon some of Khukikhe's clan and might have recorded accordingly, as to what was narrated to them. Therefore, to appropriate others' history and rights just because someone's name appears in some document without any historical basis is fallacious and unacceptable; and that in the book of J. H. Hutton, (the then deputy commissioner of Naga Hill, during British regime in India and who himself came to the village with Dobashi Kuhoto Zhimomi as translator), in his book 'The Sema Nagas', first published in the year 1921, it is recorded as 'Sheaho' (for Shoiho) and the said book is authentic and is referred as an official Book.
5.5 It is also stated by the respondent Nos. 2 & 3 that the respondent No. 2 had submitted a written complaint on 08.01.2004, before the GB's Court & Village Council Chairman of Yangzitong 'A' & 'B' Village to settle the dispute of village establishment case between Shoiho and Khukiqhe, before the celebration of Golden Jubilee of the Church establishment in the village. And accordingly, the Kukami (GB's Board) of Yangzitong 'A' & 'B' Village, Nagaland, by its order dated 29.01.2004, had settled the matter in favour of Shoiho Yepthomi clan the right to be the chieftain of the village. Then, having refused to accept the settlement of the joint GB's Board, the petitioner, by his letter dated 10.02.2004, had filed a complaint letter, before the village council for hearing of his case. But, the Kukami (GBs), being the ex-officio member of the village council and being not able to decide the case of its own judgment/settlement, transferred the case to the Dobashis Court (DB), Seyochung, by its letter, dated 27.02.2004. And the Dobashis Court, Seyochung, by its settlement Order, dated 16.04.2004, had rightly held that Shoiho Yepthomi was the first to Page No.# 13/31 shift to Yangzitong 'B' village, meaning thereby, the right to Chieftainship by his clan; and that when the Dobashis Court proceeding was going on and was contemplating to administer the Naga customary Oath, Late S. Khehovi Yeptho, eldest son of Sahoi Yepthomi, refused to undergo oath taking under any circumstance, by stating that it is his father, Late Sahoi Yepthomi's word not to undertake oath regarding the claim to chieftainship at Yangzitong 'B' village, as it was evidently clear that it was Shoiho who had first established Yangzitong 'B'/Shoiho village and knowingly undergoing oath taking will invite curse upon his clan; and that the petitioners have accepted the Settlement Order, dated 27.02.2004, passed by the DB's Court, Seyochung. However, after a lapse of 20 long years, the petitioner claiming to be aggrieved, basing on the facts of the case, does not arise.
5.6 Further stand of the respondent Nos. 2 & 3 is that due to Sahoi Yepthomi bringing up non related issue of chieftainship at Yangzitong 'B' village, when the case hearing was proceeding on the main issue relating to the demand for separate village council for Yangzitong 'A' & Yangzitong 'B', the then ADC, Kiphire, in all his wisdom as an Administrative Officer, passed a verbal directive that pending settlement of the issue of Chieftainship at Yangzitong 'B'/Shoiho village, Late Itokhu, grandson of Yangzitong, will be the head of both Yangzitong 'A' and Yangzitong 'B' village and both the villages will function under one Village Council and one Village Development Board and the claim of the petitioners that they had stopped agitating after the directive of the then ADC, Kiphire for one Head GB, one village council and one VDB speaks volume of their mindset to deny the rightful claim of the respondent, as no one was a winner in Page No.# 14/31 that case, and it was because of the then petitioner, Shri Kheshito Yepthomi's refusal to accept the verbal directives, that the matter was referred to DC, Tuensang for further redressal.
5.7 It is also stated by the respondent Nos. 2 & 3 in the affidavit-in- opposition that although, the case was between Khukiqhe and Shoiho, relating to the chieftainship at Yangzitong 'B' village, where the then Head GB of Yangzitong 'A,' Late Itokhu had also clearly stated in his statement that his grandfather Yangzitong had told Shoiho to establish his own village, the Dobashis Court, Seyochung by its Settlement, dated 16.04.2004, in all its wisdom, had imposed the condition of the then ADC, Kiphire's verbal directive, a copy of which they had never seen, except hearsay and in spite of finding and accepting Shoiho as the first, meaning the founder in the establishment of Yangzitong 'B' village, after obtaining vivid evidence through the statements given by so many witnesses; the petitioners, in no point of time, after the passing of the two Settlement Orders, had approached the competent jurisdiction to challenge the aforesaid settlement orders, if being aggrieved and after 20 years, they have woken up from deep sleep and have rushed before the Court, seeking for superintendence, without setting or justifying any cause for its reasonable delay and the present case is severely hit by delay and laches; and that the petitioner's contention on the GB's Board of not being a Court contemplated under the Rules of 1937, is baseless. Rule 24 of the Rules of 1937 clearly stipulates that, "Mauzadars, Gaonburas, Chiefs, Headmen of khels, Dobhasis or other village authorities, sitting with the village elders in council, are empowered to try cases without limit as to amount, but, with the following reservations- (a) They may not try suits in which a Page No.# 15/31 native of the plains or native of another village no resident in their jurisdiction the party and (b) All suits be decide in open darbar, in the presence of the parties and atleast three respectable witnesses" and as such, the contention advanced by the petitioners that the Settlement, dated 29.01.2004, is without jurisdiction, non-est and void ab-initio, is without basis and under such circumstances, it is contended to dismiss the petition.
6. The petitioners have filed their reply to the affidavit-in-opposition filed by the respondent authorities and denied the statements and averments made in the affidavit-in-opposition and reaffirmed the statements made in the petition. It is stated that the respondent Nos. 2 & 3 are indulging in blatant falsehoods and attempting to change the history of Yangzitong/Yezuthu village and that Khukiqhe, along with ten households from the Sumi tribe accompanied Yezuthu for the establishment of the village and the names of the followers are Khukiqhe, Luzukhu, Khevishe, Hozheche, Suhoto, Khuchevi Awomi, Yekhavi, Lichumu, Xevishe and Khuchevi Ayemi.
6.1 The petitioners also denied that Khukiqhe came to Yangzitong village as a result of threats to his life in the year 1905, and that the historical background of Khukiqhe and Yepthomi chronicles in Annexures A & B of the affidavit-in-opposition are misplaced, as the said accounts are not authenticated accounts of either of the Yepthomi clan or of Khukiqhe and secondly, the accounts referred to in these two documents are incorrect, biased and motivated.
6.2 It is also stated that firstly, the maps relied upon by the petitioners are from official records and clearly depict the existence of Khukiqhe Page No.# 16/31 village and secondly, the reference to Shoiho in the book authored by J.H. Hutton is misleading; and that the respondents Nos. 2 & 3 are raising false claim. Also, since the establishment of Khukiqhe village in the year 1879, Khukiqhe and his descendants have been the Chiefs of the village and that after 146 years, the descendants of Shoiho Yepthomi are seeking to wrest control of Yangzitong/Khukiqhe village; and that the petitioner's family has been the Chiefs of Khukiqhe/Yangzitong B village, which can also be ascertained from the register containing the issuance of red blankets, issued by the Office of the then Deputy Commissioner of the Naga Hills, as a recognition to the Chiefs of Villages and the register, in this regard, in relation to Mokokchung, for the period from 31.08.1912 to 06.01.1953; has the name of Sohoto, the then G.B. of Khukiqhe village/Yangzitong B village and the name of the Chief of Yezthu village. The petitioners were supplied with certificates, dated 02.07.2024, containing the relevant entries from the said register.
6.3 In the affidavit-in-reply, the petitioners have also denied that Khukiqhe never established village in his name and that he was never the Chief of the village, except that he was one of the GBs (Akukau) at Shoiho village. The people of Yangzitong A & B village, including the respondent Nos. 2 & 3, know the history of Khukiqhe village and not Shoiho village. In fact, there is no such village known as Shoiho village and that apart, recognition of villages is a recent phenomenon and even with or without recognition, Naga villagers have Chiefs. As such, it is reiterated that Khukiqhe was the Chief of Yangzitong B/Khukiqhe village and that his successors were all Chieftains of Yangzitong 'B'/Khukiqhe village; and also denied that the issue of Chieftainship at Yangzitong 'B'/Shoiho village is a Page No.# 17/31 closed chapter and that the villagers as a whole contending against the Judgment since 20 years back; and it is also denied that the petitioners have suppressed the facts. Under such circumstances, it is contended to allow this petition.
7. Mr. A. Zhimomi, learned counsel for the petitioners, submits that the village counsel has no authority to refer a case to Dobashis Court and as such, the decisions, being challenged in this petition, are without any jurisdiction and non-est in the eye of law, and the same can be challenged at any point of time. He also submits that though, the challenge to the decision has been made after 20 years, yet, the said decision has not yet been implemented and as such, there is no bar in challenging the same. He further submits that where the point of law is involved, it can be challenged at any point of time. Mr. Zhimomi has also referred to Rule 23A and submits that though, the Deputy Commissioner/Addl. Deputy Commissioner /Assistant has the power to refer civil cases to Dobhashi, yet it cannot refer the matters which are appealable.
7.1. Mr. Zhimomi has also referred to a decision of this court in Toshiho Zhimo & Ors. -vs.- Kahuto Zhimo reported in (2022) 3 GLT 179, to contend that a decree or an order passed by Court without jurisdiction is a nullity and can be challenged at any stage even at the stage of execution or in collateral proceedings; and that Dobashis are not empowered to act as appellate courts, though Dobashis can hear only those cases endorsed to them by the DC and/or the Assistant to the DC and it has also been held that if an Order passed by Court is bad for want of jurisdiction, all proceedings are void and non-est in law. He also referred to another Page No.# 18/31 decision of Hon'ble Supreme Court in Union of India & Anr. -vs.- Association of Unified Telecom Service Providers of India & Ors., reported in (2011) 10 SCC 543, to contend that an order, passed without jurisdiction, is a nullity. It does not operate as res-judicata even if such orders attain finality in favor of some party by virtue of not being appealed against. He has also referred to another decision of Hon'ble Supreme Court in Chandrabhai K. Bhoir & Ors. -vs-Krishna Arjun Bhoir & Ors., reported in (2009) 2 SCC 315, to contend that an order, passed without jurisdiction, would be a nullity. It will be coram non judice (not before a Judge) and it is non-est in the eye of the law. He has also referred to a decision of Hon'ble Supreme Court Kalabharati Advertising -vs.- Hemant Vimalnath Narichania & Ors. reported in (2010) 9 SCC 437, to contend that jurisdiction cannot be conferred on a Court/Tribunal/ Authority except through legislation. The same cannot be conferred either by the Court or by the consent of the parties. An order passed without jurisdiction, is a nullity and will remain unenforceable and in-executable. Another decision he has referred to is Embassy Property Developments Private Limited -vs.- State of Karnataka and Ors., reported in (2020) 13 SCC 308, to contend that one of the well- recognized exceptions to the self imposed restraint of the High Court in cases where a statutory alternative remedy of appeal is available and lack of jurisdiction on the part of the statutory/ quasi-judicial authority, against whose order a judicial review is sought, the question is not whether an authority made the wrong decision, but whether it enquired into and made a decision in which it had no right to consider and that a tribunal which is a creature of statute cannot be clothed with a jurisdiction, by any Page No.# 19/31 concession made by a party and that a tribunal exercising a jurisdiction not vested in law is coram non judice.
7.2 Under such circumstances, Mr. Zhimomi has contended to allow this petition by setting aside the impugned orders.
8. Per contra, Mr. Jamir, learned counsel for the respondent, has vehemently opposed this petition. Firstly, Mr. Jamir pointed out that there is delay of about 20 years in challenging the impugned decision, which, in the meantime, had attained finality and as such the same cannot be interfered with. Mr. Jamir also submits that only to cover up the delay and laches this present petition is filed under Article 227 of the Constitution of India. In support of his submission Mr. Jamir has referred to a decision of Hon'ble Supreme Court in Mrinmoy Maity vs. Chhanda Koley & Ors. reported in (2024) 15 SCC 215. Secondly, referring to page No.38 of the petition, Mr. Jamir submits that Dobhasis Court has no jurisdiction, but they have submitted to the jurisdiction of the Dobhasis Court and as such the decision came to be passed. But, the petitioners have not filed an appeal against the same, for which, with passage of 20 years, the same has attained finality. Thirdly, Mr. Jamir submits that in the meantime, the state respondent has amended the Rules for Administration of Justice and Police in Nagaland (Fifth Amendment) Rules, 2025 and the village council courts got statutory recognition. Under the aforesaid facts and circumstances, Mr. Jamir has contended to dismiss this petition.
9. Mr. I. Imsong, the learned Addl. A.G., however, submits that the issue with regard to whether the Dobhashi Court can sit in appeal over the decision rendered by a village council even if the appeal is referred to by Page No.# 20/31 the Deputy Commissioner is already settled by a Co-ordinate bench of this Court in WP(C) No. 164/2017, and the said decision is enclosed with the present petition as Annexure-G. He also submits that in the light of the aforementioned decision, the present petition may be disposed of.
10. In reply Mr. Zhimomi submits that though an amendment has been made to the Rule, said amendment is yet to come into force and as such the submission advanced by the learned counsel for the respondent is misleading.
11. Having heard the submission of learned Advocates of both the parties, this Court has carefully gone through the petition and the documents placed on record and also perused the impugned decisions, dated 29.01.2004, and also the Settlement dated 16.04.2004 and the case laws, so referred by Mr. Zhimomi, learned counsel for the petitioner and also by Mr. Jamir, learned counsel for the respondent. I have also gone through the relevant provisions in the Rules for Administration of Justice and Police in Nagaland, 1937, especially, Rule 23 A and Rule 31, and the decision of a Co-ordinate bench of this Court in WP(C) No. 164/2017.
12. In order to deal with the issue with greater precision, this Court deems it appropriate to reproduce the impugned orders/decisions herein below.
12.1 The impugned order dated 29.01.2004 read as under:-
OFFICE OF THE GB'S BOARD YANGZITONG 'A+B' VILLAGE, NAGALAND.
No
1. The GBs Board of Yangzitong A and B Village on 28th Page No.# 21/31 January, 2004, on examining the chieftainship dispute in Yangzitong B Khel has come to these findings. (Witness) Since (10) ten witnesses have clearly stated that Grandfather Yangzitong told Shoiho to establish his own asa (khel) and that no one would trouble him if he established his own asa.
Therefore, the Yangzitong A and B GBs Board decides that Shoiho's children will be the chiefs/head GB of Yangzitong B Village.
1. Shri. Kheshito Yeptho, Shoiho descendant - Sd/- 29/1/04.
2. Shri. Kheyito Yeptho, Shoiho descendant - Sd/- 29/1/2004.
3. Shri. Khehuto Yeptho, Shoiho descendant - Sd/- 29/1/2004.
4. Shri. Huzheto Yeptho, Shoiho descendant - Sd/-
Members of the Yangzitong 'A & B' GB's Board that settled this issue.
1. Shri. H. Kihozhe Chairman - Sd/- 29/1/04.
2. Shri. V. Hoto Secretary - Sd/- 29/01/04.
3. Shri. Itokhu Hd/GB, Member, Sd/- 29.1.04.
Members of the Yangzitong 'A & B' GB's Board that settled this issue.
1. Shri. H. Kihozhe Chairman Sd/- 29/1/04.
2. Shri. V. Hoto Secretary - Sd/- 29/01/04.
3. Shri. Itokhu Hd/GB, Member, Sd/- 29.1.04.
4. Shri. Vikiho GB" - Sd/-
5. Shri. Ihoto GB "Sd/- 29.1.2004
6. Shri. Kihoi GB " Sd/-
7. Zhetovi GB member- Sd.-
8. Sethrongtsi GB " - Sd/- 29/01/04
9. Seto.. GB "Sd/-
Page No.# 22/31 12.2. The impugned decision dated 16.04.2004 read as under:-
GOVERNMENT OF NAGALAND Office of the Sub - Division Officer Seyochung DBs, Court.
Ref. No........ No. Jud..Th.......16- April/2004.....
CASE: SHIFTING OF YANGZITONG (A) TO (B) AND STATEMENT AND ORDER.
(1) Statement of Shri Kavito of Yangzitong Village (B).
VRS.
(2) Statement of Shri Kheshito of Yangzitong (B).
Shri Kavito has filed a case at the DB'S court Seyochung on 10/2/2004 in connection with the "who has establish the Village first" and the finding thereof as follows:-
1. Statement of Shri Kavito: He stated that as per the permission given by Shri Yangzitung to separate the Village, his grandfather Khukiqhe killed an Ox to establish a new Village. Hence, his grandfather was the first to establish the Village. The court asked the GBS of Yangzitong Village A & B and some of the Village elders.
The GBS and elders as witnesses has stated that they have never heard the killing of an ox by Shri Khukiqhe at the time of clearing the Village. This is a clear witness.
2. Statement of Shri Kheshito:- He stated that as per the decision between Yangzitong and Shoyiho, his grandfather Shoyiho has established New Village with 26 houses with him and Shri Khukiqhe with 04 houses and Tsuose with (5) houses. The court has asked the same witness whether it is true false. The witness confirmed that it was true.
Page No.# 23/31
3. While shifting from Yangzitong (A) to (B) the following persons were shifted. SHOIHO, KHUKIHE, TSUOSE, TONGSEMONG, THSULICHI, XUVISHE, PHULOZU. The following persons with 32 houses has shifted from the Yangzitong (A) to (B). While Quarry was made by the office it was clearly found that the statement was true. While confirmation was sought from the GBS of Yangzitang (A) to (B) Shri Itokhu Hd. GB of Yangzitang (A) confirmed the permission given to Shri SHOIHO to shift the Village but he has not known who were to sacrifice Dog & Pig and the Kenas. Therefore, the court has found that shri SHOIHO was the first to shift to Yangzitung (B). Yangzitong Village (A) (B) HD GB will be followed as per the decision of the then ADC-Khekiye. Whoever violates this decision, will be fined Rs. 15,000 (Rupees fifteen thousand) only as per the Naga Customary Law and this case is final.
Sd/- Sd/- Zipikya Sangtam P. Tsithrongto Sangtam GR 11 DB. Head DB SDO (Civil) Court Secretary SDO (Civil) Office Seyochung. COMPLANER PARTY RESPONTED PARTY. 1. Kavito GB. 1. Kheshito. 2. Hokheto. 2. Kheito. 3. Toiho. 3. Khehuto. 4. Gh...to Name of Judges 1. Nitovi DB. = (NITOVI) 2. Yangthsase DB. = (YANGTHSASE) 3. Kivin DB.= (KIVIN) 4. Setongthsing DB. = (SETONGTHSING) 5. Lipipa DB. = (LIPIPA)
13. The categorical contention of the petitioners and their counsel is Page No.# 24/31 that the Dobhasis court has no jurisdiction to act as an appellate court. Even Mr. Jamir, the learned counsel for the respondent has also not denied the aforesaid proposition. However, Mr. I. Imsong, the learned Addl. A.G. for the state respondent No. 1, submits that the issue is already settled by a Co-ordinate bench of this Court in WP(C) No. 164/2017, vide judgment and order dated 19.06.2023. Notably, in the said case a co- ordinate bench of this court has held that the issue in that petition is covered by a decision of Division Bench, dated 04.12.2020, wherein it was held that Dobhasis court cannot be empowered as an appellate court by exercise of the power under Rule 23 A of the Rules for Administration of Justice and Police in Nagaland, 1937. Rule 31 of the said Rules also debars DC/ADCs' and his Assistants from such authority. Thereafter, this court has held that Dobhasis Court cannot exercise appellate jurisdiction over the decision of the village council. And, having carefully gone through the Rule 23 A of the Rules for Administration of Justice and Police in Nagaland, 1937, Rule 31, this court finds no justified reason to take a different view.
14. However, it appears that in the impugned order dated 29.01.2004, and the decision dated 16.04.2004, the present petitioners were parties. They participated in the said proceeding. Thereafter, they remained silent for almost 20 years, since the date of impugned order and decisions. Since no appeal/revision/review is filed, the same, in the meantime, attained finality. Now, what left to be seen is whether the petitioners, having been a party to the impugned order and also in the decision and remaining silent for about 20 years, while the impugned order and decision had already attained finality, can challenge the jurisdiction now?
Page No.# 25/31 14.1. It is, however, well settled that the issue in respect of jurisdiction can be raised at any stage of the proceedings and even in collateral proceedings. Reference in this context can be made to a decision of the Hon'ble Supreme Court in the case of Kiran Singh & Others Vs. Chaman Paswan & Others, reported in (1954) 1 Supreme Court Cases 710. This proposition was, later on, also followed in the case of Om Prakash Agarwal Vs. Vishan Dayal Rajpoot and Another, reported in (2019) 14 SCC 526. In the case of Dr. Jagmittar Sain Bhagat vs. Director, Health Services, Haryana & Others, reported in AIR 2013 SC 3060, wherein it has been held that the issue of jurisdiction can be raised at any stage and doctrine of waiver does not apply. In the case of Kamala & Others vs. K.T.Eshwara SA & Others, reported in AIR 2008 SC 3174, same principle is reiterated.
14.2. But, still the question remains whether a party, who had participated in a proceeding and signed the decision without there being any protest and thereafter remained silent for more than 20 years and thereby waived his right to protest, either by filing revision or appeal before appropriate forum, and when the matter attained finality as no appeal or revision being filed, can raise the issue of jurisdiction before this Court in a writ petition.
14.3. The answer is obvious that a person, who had participated in the proceedings, having appeared before the authority and signed the decision and remained silent for more than 20 years, he exposes himself to acceptance of jurisdiction of that court, and later on, he cannot make a somersault. The issue rests on the simple and universally admitted principle that a litigant, who has voluntarily submitted himself to the Page No.# 26/31 jurisdiction of a court by appearing before it, cannot afterwards, dispute its jurisdiction. Where such a litigant, though a respondent rather than a claimant, appears and pleads to the merits without contesting the jurisdiction, there is clearly a voluntary submission. The same is the case, where he does indeed contest the jurisdiction, but, nevertheless, proceeds further to plead to the merits, or agrees to a consent order dismissing the claims and cross-claims, or where he fails to appear in proceedings at first instance, but appeals on the merits.
14.4. Reference in this context can be made to some overseas decisions also. In the case of Golden Endurance Shipping SA v RMA Watanya SA [2016] EWHC 2110 at para. 28, Phillips J3 (MANU/UKCM/0064/2016), it has been held by England and Wales High Court (Commercial Court) that: "a party, who voluntarily appears or participates in proceedings is considered by the common law, to have accepted an offer from the opposing party, who commenced the proceedings to accept the jurisdiction and be bound by its judgment. The touchstone of submission on this basis is therefore consent, although the question of whether consent has been given is to be judged objectively.
14.5. In the case of Williams & Glyn's Bank Plc. v. Astro Dinamico Compania Naviera S.A., [1984] 1 W.L.R. 438 (MANU/UKHL/0018/1984), the House of Lords described the test for implying such consent as being: "in order to establish a waiver, you must show that the party alleged to have waived his objection, has taken some step which is only necessary or only useful if the objection has been actually waived, or if the Page No.# 27/31 objection has never been entertained at all."
14.6. In the instant case, the conduct of the parties, in fact, demonstrated a submission to the jurisdiction. And it becomes apparent from the record and also, from the conduct of the parties, that there has been a voluntary submission.
14.7. In the case of Om Prakash Agarwal (supra), while dealing with the issue, Hon'ble Supreme Court has held as under:-
"57. The policy underlying Section 21 of Code of Civil Procedure is that when the case has been tried by a court on merits and the judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it has resulted in failure of justice. The provisions akin to Section 21 are also contained in Section 11 of the Suit Valuation Act, 1887 and Section 99 of the Code of Civil Procedure. This Court had the occasion to consider the principle behind Section 21, Code of Civil Procedure and Section 11 of the Suit Valuation Act, 1887 in Kiran Singh v. Chaman Paswan [Kiran Singh v. Chaman Paswan, AIR 1954 SC 340]. In para 7 of the judgment following was laid down: (AIR p. 342) "7. ... The policy underlying Sections 21 and 99 of the Civil Procedure Code and Section 11 of the Suits Valuation Act is the same, namely, that when a case had been tried by a court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice, and the policy of the legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate court, unless there has been a prejudice on the merits. The contention of the appellants, therefore, that the decree and judgment of the District Court, Page No.# 28/31 Monghyr, should be treated as a nullity cannot be sustained under Section 11 of the Suits Valuation Act."
Thereafter, summing up the discussion, Hon'ble Supreme Court has held as under:-
"69. We thus hold that even when the Court of Additional District Judge was not competent to decide the small causes suit in question on the ground that the pecuniary jurisdiction is vested in the Court of Small Causes i.e. Civil Judge, Senior Division w.e.f. 7-12-2015, no interference was called in the judgment of the Additional District Judge in the exercise of revisional jurisdiction by the High Court in view of the provisions of Section 21 of the Civil Procedure Code."
14.8. In the case in hand, from the pleadings of the parties and from the submissions advanced by their counsels, this Court is unable to derive satisfaction that any prejudice has been caused to the petitioners. Their only contention is that the settlements are without jurisdiction and that the settlements are not acted upon by the parties. It is well settled that unless there has been a prejudice on the merits, purely on technical grounds, the impugned judgment of the Dobhasis Court cannot be treated as a nullity, while the matter has already attained finality in the last 20 years, having no appeal or revisions being filed against such settlement.
14.9. Thus, drawing premises from the illuminating discourse, it can safely be concluded that the impugned order and decision of the Dobhasis Court, in deciding the appeal in question, cannot be treated as nullity. Therefore, the contentions, so raised by the petitioners, in respect of jurisdiction of the Dobhasis Court, and the submissions of their counsel failed to command acceptance of this Court and accordingly, the same Page No.# 29/31 stands repudiated.
15. This court has also gone through the decisions referred to by Mr. Zimomi, the learned counsel for the petitioners. There is no quarrel at the Bar regarding the propositions, so laid down in the said cases. But, the same proceeds on their own fact and are not applicable in all force to the given facts and circumstances of the case in hand and in that view of the matter, the same would not come into his assistance.
16. On the other hand, this court finds sufficient merit in the submission of Mr. Jamir, the learned counsel for the respondent and his submission stands fortified from the decision of Hon'ble Supreme Court in Mrinmoy Maity (supra), so referred by him, wherein, it has been held in para No.9 as under:-
"9. Having heard rival contentions raised and on perusal of the facts obtained in the present case, we are of the considered view that the writ petitioner ought to have been non-suited or in other words the writ petition ought to have been dismissed on the ground of delay and laches itself. An applicant who approaches the court belatedly or in other words sleeps over his rights for a considerable period of time, wakes up from his deep slumber ought not to be granted the extraordinary relief by the writ courts. This Court time and again has held that delay defeats equity. Delay or laches is one of the factors which should be borne in mind by the High Court while exercising discretionary powers under Article 226 of the Constitution of India. In a given case, the High Court may refuse to invoke its extraordinary powers if laxity on the part of the applicant to assert his right has Page No.# 30/31 allowed the cause of action to drift away and attempts are made subsequently to rekindle the lapsed cause of action."
16.1. Again in the case of Tridip Kumar Dingal & Others v. State of W.B. & Others, reported in (2009) 1 SCC 768 Hon'ble Supreme Court has held that as under:-
"56. We are unable to uphold the contention. It is no doubt true that there can be no waiver of fundamental right. But while exercising discretionary jurisdiction under Articles 32, 226, 227 or 136 of the Constitution, this Court takes into account certain factors and one of such considerations is delay and laches on the part of the applicant in approaching a writ court. It is well settled that power to issue a writ is discretionary. One of the grounds for refusing reliefs under Article 32 or 226 of the Constitution is that the petitioner is guilty of delay and laches.
57. If the petitioner wants to invoke jurisdiction of a writ court, he should come to the Court at the earliest reasonably possible opportunity. Inordinate delay in making the motion for a writ will indeed be a good ground for refusing to exercise such discretionary jurisdiction. The underlying object of this principle is not to encourage agitation of stale claims and exhume matters which have already been disposed of or settled or where the rights of third parties have accrued in the meantime (vide State of M.P. v. Bhailal Bhai, (1964) 15 STC 450, Moon Mills Ltd. v. Industrial Court, 1967 SCC OnLine SC 117 and Bhoop Singh v. Union of India, (1992) 3 SCC 136]). This principle applies even in case of an infringement of fundamental right vide Tilokchand Motichand v. H.B. Munshi, (1969) 1 SCC 110, Durga Prashad v. Controller of Imports and Page No.# 31/31 Exports (1969) 1 SCC 185] and Rabindranath Bose v. Union of India, (1970) 1 SCC 84] ).
58. There is no upper limit and there is no lower limit as to when a person can approach a court. The question is one of discretion and has to be decided on the basis of facts before the court depending on and varying from case to case. It will depend upon what the breach of fundamental right and the remedy claimed are and when and how the delay arose."
17. To recapitulate for the following reasons, the writ petitioners are required to be non-suited :-
(i) There was voluntary submission to the jurisdiction of the Dobhasis Court, though the said Court was coram non judice.
(ii) There is inordinate delay (20 years) in approaching the Court and the petitioners are guilty of delay and laches.
18. In the result, this court finds no merit in this petition. And accordingly, the same stands dismissed leaving the parties to bear their own costs.
JUDGE Comparing Assistant