1.Santosh Ghosh 2.Ashoka Ghosh 3.Rakhahari Ghosh 4.Gurupado Ghosh v. …
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI (CIVIL APPELLATE JURISDICTION) S.A. No.159 of 2016 ------ 1.Santosh Ghosh 2.Ashoka Ghosh 3.Rakhahari Ghosh 4.Gurupado Ghosh ..... Versus .... …. Appellants 1.Gangadhar Mandal 2.Mathur Mandal 3.Parbati Ghosh 4.Alamati Ghosh .... .... .... Respondents
Legal Reasoning
CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY For the Appellants For the Respondents : Mr. Kaushik Sarkhel, Advocate : ------ Heard, learned counsel for the appellants. 1. This second appeal is preferred against the judgment of affirmance and concurrent finding of learned trial Court and first appellate Court. 2. Defendants/Appellants have preferred the present appeal against the Judgment and Decree in Title Appeal No. 05/2015, whereby and where under the judgment in Title (Partition) Suit No. 28/2000 has been affirmed. 3. Plaintiffs brought the suit for partition inter-alia on the ground that the plaintiffs and defendants are Hindus and governed by Dayabhaga School of Hindu Law. The lands described in Schedule of the plaint were recorded in the name of Bhuban Ghosh who died in the year 1960 leaving behind his son, Govindo Ghosh and others. His six sons namely, Sital Ghosh Mohindhar Ghosh, Magan Ghosh, Surjee Ghosh, Bhagirath Ghosh and Jamuna Ghosh. Out of aforesaid seven sons Mohindhar Ghosh, Magan Ghosh, Surjee Ghosh, Bhagirath Ghosh and Jamuna Ghosh died issueless. Govindo Ghosh died in the year 1962 leaving behind his only daughter Rangubala Dasi and plaintiffs are the sons of Rangubala Dasi. The defendants are grandsons of Sital Ghosh and are also the co-sharers of the plaintiff. They have got equal shares over the lands of Bhuban Ghosh as the plaintiffs and defendants used to possess the lands jointly without making any partition by metes and bounds. Plaintiffs claim to have half share over the suit properties for which the partition suit has been filed. 4. Case of the defendant is that the defendant No. 1 Santosh Ghosh was the adopted son of Bhagirath Ghosh who was adopted and his name was recorded in registered 1 adoption deed. The parties are Hindus but are not governed by Dayabhaga School of law. They are governed by Mitakshara School of Hindu Law. Bhuban Ghosh died in the year 1953, not in the year of 1960. Govindo Ghosh predeceased his father and died in the year 1949. Shital Ghosh died in 1964 and Bhagirath Ghosh died in 1982. Govindo Ghosh died in the year 1949. Plaintiffs are not rightful owners of the lands of Bhuban Ghosh and are not in possession of the suit land. The defendants are owners and are in possession. The plaintiffs have got no share and are not entitled to any share. 5. A written statement of newly added defendant Ashok Ghosh has been filed and submitted that plaintiffs have got no locus standi to file this suit and are not entitled to any of the relief. Bhuvan Ghosh died in 1953 before Hindu Succession came into force and not in 1960. Son of Bhuvan Ghosh namely Govindo Ghosh died in or about 1949 during lifetime of his father. It has been further submitted that Mahendra Ghosh, Madan Ghosh, Surjee Ghosh, Jamuna, all died as issueless leaving their only surviving brother Bhagirath Ghosh who was a bachelor and he had adopted his nephew namely Santosh Ghosh as his son on the auspicious day of 3rd Asharha, 1387 BS corresponding to 17th day of June 1980 and for this a deed of adoption was executed in Sub-Registration office, Jamtara bearing deed No. 85 of 1980 and the said document itself proves the adoption. All the rituals performed for adoption giving the right in the leading of Bhagirath Ghosh, Defendant Santosh Ghosh after his adoption by Bhagirath Ghosh, plaintiffs are fully aware. 6. On pleading of the parties the following issues were framed which are as follows: (I) (II) Have the plaintiffs valid cause of action for the suit? (III) Is the suit maintainable? Is there any unity of title and possession between the plaintiffs and the defendants? (IV) Whether the defendant No. 1 Santosh Ghosh adopted son of Bhagirath Ghosh? (V) Whether the parties are governed by Dayabhaga School of Hindu law? (VI) Whether the plaintiffs are entitled for the reliefs as sought for? (VII) Whether the recorded tenant Bhuban Ghosh died in the year 1960 or in the year 1953? FINDING OF THE TRIAL COURT 7. Partition Suit was decreed for one third share of the suit property in favour of the plaintiffs, by recording a finding of fact that Bhuban Ghosh died in the year 1960 and not in 1953 as pleaded by the defendants. This finding was crucial to the determination of the issue whether the Hindu Succession Act, 1956, or customary 2 law would apply. 8. The learned trial Court also held that defendant No. 1 Santosh Ghosh is the adopted son of Bhagirath Ghosh. 9. Learned first appellate Court concurred with both these findings of the trial Court. 10. It is argued by learned counsel on behalf of the appellant(s) that learned First Appellate Court has not framed any point for determination for hearing the appeal and on this itself, the instant Second Appeal is fit to be admitted. 11. It is further argued that on question of fact regarding death of Bhuwan Ghosh, it was the definite case of the appellant(s)/ defendant(s) before the learned Trial Court that he had died before 1956 and in the year 1953 and to this effect, evidence was also laid, but that was not dealt with either by the learned Trial Court or by the First Appellate Court. 12. The following substantial questions of law are proposed by learned counsel for the appellant(s):- (i) Whether defendant no.1, Santosh Ghosh is adopted son of Bhagirath Ghosh? (ii) Are the parties governed by Dayabhaga School of Hindu Law? 13. This Court is of the view that, both these questions are questions of fact and not of law, and far less a substantial question of law, on which both the learned Courts below have returned a concurrent finding of fact which needs no interference by this Court. 14. The pivotal question whether the customary law of succession applicable to the parties would apply or the Hindu Succession Act, 1956 would apply hinges on the date of death of recorded tenant Bhuban Ghosh died in the year 1960 or in the year 1953. In view of the concurrent finding of both the Courts below that he died in the year 1960, as such, there cannot be two views that Hindu Succession Act, 1956 would apply. 15. Further, both the Courts have also held that claim of adoption was bona-fide. 16. Under the circumstance, I do not find any substantial question of law involved, for admitting the instant second appeal. The second appeal accordingly stands dismissed at the stage of admission. Sandeep/uploaded (Gautam Kumar Choudhary, J.) 3