) ------ Mutuk Bhumijani, wife of Ranha Singh Munda, daughter of Late Ambika Bhumijani v. P.O. & P.S. Tamar, Dist. Ranchi 2. Sitaram Bhumij, son of Ravi Bhumij 3
Case Details
Second Appeal No. 25 of 2021 IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.25 of 2021 (Against the Judgment and decree dated 19.02.2020 passed by the learned Additional District Judge-I, Seraikella in Civil Appeal No. 33 of 2011) ------ Mutuk Bhumijani, wife of Ranha Singh Munda, daughter of Late Ambika Bhumijani, aged about 52 years, resident of Village Boda, P.O. Chipri, P.S. Ichagarh, Dist. Seraikella Kharswan 1. Govind Bhumij, son of Kario Bhumij, resident of Village Hupudih, .... .... …. Appellant Versus P.O. & P.S. Tamar, Dist. Ranchi 2. Sitaram Bhumij, son of Ravi Bhumij 3. Gangamani Bhumijani, wife of Late Guru Bhumij 4. Minor Rohini Bhumijani, daughter of late Guru Bhumij 5. Minor Gurwa Bhumij, son of late Guru Bhumij Respondent nos. 4 and 5 being minors are represented by their mother namely Gangamani Bhumijani being their legal and natural guardian 6. Rabi Bhumij son of not known, husband of Somila Bhumijani Respondent nos. 2 to 6 are residents of Village Boda, P.O. Chipri, P.S. Ichagarh, Dist. Seraikela Kharswan 7. Deputy Commissioner of Seriakela Kharswan, P.O. & P.S. Seriakella, Dist. Seraikela Kharswan ... .... …. Respondents For the Appellant ------ : Mr. Rohit Roy, Advocate : Mr. Vibhor Mayank, Advocate : Ms. Apurwa Pathak, Advocate ------ PRESENT HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ------ By the Court:- Heard the parties. 2 This second appeal has been preferred under Section 100 of Code of Civil Procedure against the judgment and decree dated 19.02.2020 passed by the learned Additional District Judge-I, Seraikella in Civil Appeal No. 33 of 2011 whereby and where under, by the said judgment of concurrence, the learned first appellate court upheld the judgment and decree passed by the learned trial court 1 Second Appeal No. 25 of 2021 being the court of learned Munsif, Seraikella in Title Suit No.4 of 2006
Legal Reasoning
dated 30.05.2011 by which the learned trial court dismissed the suit of the plaintiff on contest filed with a prayer for partition of the suit land. 3 The case of the plaintiff in brief is that the plaintiff and the defendant nos. 1 to 3 are the descendants of the common ancestor- Charu Munda @ Charu Bhumij. The parties to the suit are Scheduled Tribes. Charu Munda @ Charu Bhumij has two sons namely Ruia Bhumij and Sohrai Bhumij who succeeded the property of Charu Munda @ Charu Bhumij after his death. Ruia Bhumij died leaving behind her wife Alomoni. Since Alomoni was looking after the settlement work, the name of Alomoni was mentioned in most of the new record of rights. The plaintiff is the daughter of Sohrai Bhumij. The name of the plaintiff appears in the record of right inter alia Khata no. 29 of Mouza Bodo as Ambika Devi wife of late Sohrai Bhumij but such entry is erroneous because plaintiff is the daughter of Sohrai Bhumij and not the wife of Sohrai Bhumij. The plaintiff pleaded that the suit property has never been partitioned by metes and bounds. Hence, the plaintiff filed the suit for partition. 4 The defendant nos.1 to 4 in their joint written statement challenged the maintainability of the suit on various technical grounds and pleaded that the plaintiff never resided in village Bodo and she was given in marriage to one Arjun Munda of village Pundisili where she had been living with her husband since long. The defendants further pleaded that the daughter of Ruia namely Sombari 2 Second Appeal No. 25 of 2021 and Somaila were also given in marriage and there were no male descendants in their family. Alomoni -the widow of Ruia brought the defendant no.4 as her son-in-law and daughter Somaila to her house to live with her and to look after the cultivation work of the suit land. The defendants further pleaded that the married daughters, in Bhumij community do not inherit the ancestral or paternal property in view of the prevailing custom of their society and widows inherit and possess the ancestral joint family lands in absence of any male descendants. Accordingly, Alomoni succeeded to the ancestral land left by her husband Ruia and Sohrai and possessing the same with the help of her son-in-law and daughter. The defendants further pleaded that the plaintiff never inherited the interest of her father over the suit land nor she has ever been in possession over the suit land. Thus, there is no unity of title and possession of the defendants over the suit land with the plaintiff and the plaintiff being emboldened by wrong recording of one of the survey khata land in her name, has mischievously filed the suit for partition claiming share in suit land. The defendants further pleaded that the original plaintiff Ambika Devi had a daughter namely Mutuk Bhumijain. The defendants denied that the plaintiff inherited half portion of the suit land on partition. 5 On the basis of the rival pleadings of the parties, the following ten issues were framed by the trial court:- (I) (II) Is the suit is maintainable in its present form for relief claimed? Is there any cause of action for this suit? (III) Is the suit barred by Law of Limitation? 3 Second Appeal No. 25 of 2021 (IV) (V) (VI) Is the suit barred by Specific Relief Act? Is the suit is undervalued? Is the suit bad for non-joinder of necessary party? (VII) Is there any unity of title and possession over the suit land by the plaintiff to claim partition of the suit land? (VIII) Is the plaintiff entitled for a decree of the right, title and interest over the schedule land mentioned in plaint? (IX) Is the plaintiff entitled for a decree declaring that the plaintiff and defendants have half share each in the schedule land? (X) Is the plaintiff entitled for any other relief or reliefs claimed? 6 Learned trial court considered the evidence in the record i.e. the oral testimonies of the five witnesses examined by the plaintiff and the documents which have been marked as Ext. 1 and 1/2 and Ext. 2 to 2/4 as well as the oral testimonies of the four witnesses examined by the defendants and the documents which have been marked as Ext. A to A/3 and B to B/3. 7 The learned trial court first took up issue nos. (VII), (VIII) and (IX) together and considered the fact that the plaintiff has not claimed benefit of any custom hence, the original plaintiff could not inherit the property of Sohrai Bhumij and she has no right, title and interest over the suit land. On the other hand the defendants pleaded that the defendant no.4 is the son-in-law of Ruia Bhumij and Alomoni and it is also admitted by the plaintiff; as the plaintiff arraigned the defendant no.4 in the suit without disclosing any reason for the defendant no.4 of being made a party to the suit and went on to hold that there is no unity of title and possession over the suit land between the plaintiff and the defendants and the plaintiff has no right, title and interest over the suit land. Thus, the plaintiff is not 4 Second Appeal No. 25 of 2021 entitled to decree of partition or declaration of right, title, interest and possession over the suit land and decided the issues against the plaintiff. The learned trial court thereafter took up issue no. (VI) and considered that as the Deputy Commissioner has been impleaded as a party so the said issue has become irrelevant. The learned trial court next took up issue no. (V) and came to the conclusion that the suit is bad for improper and under valuation and also for nonpayment for proper court fee. The learned trial court then took up issue no. (IV) and held that the suit of the plaintiff for declaration without any relief for confirmation of possession of the plaintiff over the suit land is hit by the provision of Specific Relief Act. The learned trial court next took up issue no. (III) and held that there is no averment in the plaint as to when right, title and interest of the plaintiff was challenged by the defendants and as the plaintiff claimed in the plaint that the entry in the record of right is wrong and erroneous and the said entry took place somewhere in the year 1962-64, so, the suit for declaration having been filed in the year 2006 is barred by limitation so far as the prayer for declaration is concerned. The learned trial court thereafter took up issue nos. (I), (II) and (X) together and went on to hold that the plaintiff is not having any cause of action for the suit and the suit is not maintainable in its present form and the plaintiff is not entitled to any relief and dismissed the suit. 8 Being aggrieved by the judgment and decree passed by the learned trial court, the plaintiff filed Civil Appeal No.33 of 2011 in the court of Principal District Judge, Seraikella which was ultimately 5 Second Appeal No. 25 of 2021 heard and disposed of by the learned first appellate court by the impugned judgment. 9 The learned first appellate court formulated the following two points for determination :- (i) Whether the plaintiff/appellant is entitled for a decree of her right, title and interest over the scheduled land as mentioned in the plaint? (ii) Whether the plaintiff/appellant has unity of title and possession with defendant nos.1 to 4 over the suit land and as to whether she is entitled for any decree declaring her half share in respect of the schedule land? 10 The learned first appellate court first took up the point for determination no. (i) and after making independent appreciation of the evidence in the record considered that the plaintiff has not pleaded any custom though it is admitted that the parties to the suit are members of the Scheduled Tribe whereas the defendants have pleaded the custom according to which the female of Munda community of Scheduled Tribe to which the parties belong do not have any right of inheritance and being convinced by the customary law applicable to the Mundas of Chota Nagpur about which the book
Legal Reasoning
has been written by one Shri S.C. Roy under the title ‘Mundas and their country’ and referred to page no.236 and 237 of that book and also considering the oral evidence in respect of the custom pleaded in the pleading of the plaintiff that the females of the Munda community do not have any right to inherit the property of their father; went on to hold that the plaintiff is not entitled to any decree for declaration of right, title and interest over the suit land as she has no right to inherit the property of her father. Thereafter, the learned first appellate court considered the point for determination no. (ii) and after making 6 Second Appeal No. 25 of 2021 independent appreciation of the evidence in the record considered that since the plaintiff has no right to inherit the property of her father as a female so there is no unity of title and possession in respect of the suit land between the plaintiff and the defendants and went on to upheld the judgment and decree of the learned trial court and dismissed the appeal on contest but without costs. 11 Learned counsel for the appellant drawing attention of this Court to Section 2 (1) (c) of the Hindu Succession Act, 1956 which reads as under:- “2. Application of Act.—(1) This Act applies— (a) to any person, who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj, (b) to any person who is a Buddhist, Jaina or Sikh by religion, and (c) to any other person who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu Law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed. Explanation.—The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be— (a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion; (b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged; (c) any person who is a convert or reconvert to the Hindu, Buddhist, Jaina or Sikh religion. (2) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the 7 Second Appeal No. 25 of 2021 members of any Scheduled Tribe within the meaning of clause (25) of Article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs. (3) The expression “Hindu” in any portion of this Act shall be construed as if it included a person who, though not a Hindu by religion, is, nevertheless, a person to whom this Act applies by virtue of the provisions contained in this section.” submits that as it has been mentioned in Section 2 (1) (c) of the Hindu Succession Act, 1956 that any other person who is not a Muslim, Christian, Parsi or Jew by religion which includes the plaintiff unless it is proved that any such person would not have been governed by Hindu Law or by any custom or usage as part of that law in respect of any of the matters dealt with by the Hindu Succession Act, 1956 has not been passed; so the burden was upon the defendants to establish the custom that the plaintiff is not entitled to right of inheritance of the property by her father, keeping in view the fact that the plaintiff is a female notwithstanding. Relying upon the judgment of Hon’ble Supreme Court of India in the case of LaxmiBai (Dead) Through Lrs. & Anr. vs. Bhagwantbuva (Dead) Through Lrs. & Ors. reported in (2013) 4 SCC 97, paragraph no. 14 of which reads as under:- “14. A custom must be proved to be ancient, certain and reasonable. The evidence adduced on behalf of the party concerned must prove the alleged custom and the proof must not be unsatisfactory and conflicting. A custom cannot be extended by analogy or logical process and it also cannot be established by a priori method. Nothing that the courts can take judicial notice of needs to be proved. When a custom has been judicially recognised by the court, it passes into the law of the land and proof of it becomes unnecessary 8 Second Appeal No. 25 of 2021 under Section 57(1) of the Evidence Act, 1872. Material customs must be proved properly and satisfactorily, until the time that such custom has, by way of frequent proof in the court become so notorious, it. (See that the courts take also Effuah Amissah v. Effuah Krabah [(1936) 44 LW 73 , T. Saraswathi Ammal v. Jagadambal [AIR 1953 SC 201] , Ujagar Singh v. Jeo [AIR 1041] 1959 and Siromani v. Hemkumar [AIR 1968 SC 1299] .)” : AIR 1936 PC 147] judicial notice of SC It is submitted by the learned counsel for the appellant that the custom must by proved to be ancient, certain and reasonable but the defendants have miserably failed to establish the same. Hence, both the courts below erred by arriving at the conclusion that the plaintiff being a female is not entitled to inherit the property of her father. 12 Relying upon the judgment of Hon’ble Supreme Court of India in the case of K. Karuppuraj vs. M. Ganesan reported in (2021) 10 SCC 777, paragraph no. 11 of which reads as under:- “11. Applying the law laid down by this Court in the aforesaid decisions, if the impugned judgment and order passed by the High Court is considered, in that case, there is a total non-compliance of the provisions of Order 41 Rule 31 CPC. The High Court has failed to exercise the jurisdiction vested in it as a first appellate court; the High Court has not at all re- appreciated the entire evidence on record; and not even considered the reasoning given by the learned trial court, in particular, on findings recorded by the learned trial court on the issue of willingness. Therefore, as such, the impugned judgment and order passed by the High Court is unsustainable and in normal circumstances we would have accepted the request of the learned Senior Counsel appearing on behalf of the respondent to remand the matter to the High Court for fresh consideration of appeal. However, even on other points also, the impugned judgment and order passed by the High Court is not sustainable. We refrain from remanding the matter to the High Court and we decide the appeal on merits.” It is submitted by the learned counsel for the appellant that the 9 Second Appeal No. 25 of 2021 learned first appellate court failed to comply the provision of Order XLI Rule 31 of Code of Civil Procedure as the learned first appellate court has not considered submission made by the appellant before it and has not dealt with the same as is required under Order XLI Rule 31 of Code of Civil Procedure. It is then submitted that therefore, the impugned judgment and decree be set aside and the appeal be remanded to the learned first appellate court for its disposal in accordance with law. It is then submitted by the learned counsel for the appellant that as the judgment and decree passed by both the courts below is not sustainable in law, the same be set aside and the suit of the plaintiff be decreed by holding that the plaintiff is entitled to half of the share of the suit property in capacity of being daughter of her father. 13 Having heard the submissions made at the Bar and after going through the materials in the record, it is pertinent to mention here that so far as the contention of the plaintiff-appellant regarding non-compliance of the power vested upon the learned first appellate court under Order XLI Rule 31 of Code of Civil Procedure is concerned, in the case of K. Karuppuraj vs. M. Ganesan (supra), the High Court failed to exercise the jurisdiction vested in it. In that case as the first appellate court; as the High Court has not at all re- appreciated the entire evidence on record and not even considered the reasoning given by the learned trial court in particular on findings recorded by the learned trial court on the issue of willingness but the Hon’ble Supreme Court of India instead of remanding the matter to 10 Second Appeal No. 25 of 2021 the High Court for fresh consideration of the appeal decided the appeal on its merit. 14 In the considered opinion of this Court, the ratio of K. Karuppuraj vs. M. Ganesan (Supra) is not applicable to the facts of this case as unlike the case of K. Karuppuraj vs. M. Ganesan (Supra), the impugned judgment of the learned first appellate court is not cryptic. Further unlike the case of K. Karuppuraj vs. M. Ganesan (Supra) the learned first appellate court has formulated the two points for determination and dealt with the same at length on the basis of the submissions made at the Bar before it. 15 In this respect, it will be proper to refer to the judgment of the Hon’ble Supreme Court of India in the case of G. Amalorpavam & Others v. R.C. Diocese of Madurai & Others reported in (2006) 3 SCC 224 paragraph-9 of which reads as under:- “9. The question whether in a particular case there has been substantial compliance with the provisions of Order 41 Rule 31 CPC has to be determined on the nature of the judgment delivered in each case. Non-compliance with the provisions may not vitiate the judgment and make it wholly void, and may be ignored if there has been substantial compliance with it and the second appellate court is in a position to ascertain the findings of the lower appellate court. It is no doubt desirable that the appellate court should comply with all the requirements of Order 41 Rule 31 CPC. But if it is possible to make out from the judgment that there is substantial compliance with the said requirements and that justice has not thereby suffered, that would be sufficient. Where the appellate court has considered the entire evidence on record and discussed the same in detail, come to any conclusion and its findings are supported by reasons even though the point has not been framed by the appellate court there is substantial compliance with the provisions of Order 41 Rule 31 CPC and the judgment is not in any manner vitiated by the absence of a point of determination. Where there is an honest endeavour on the part of the lower appellate court to consider the controversy between the parties and there is proper appraisement of the respective cases and weighing and balancing of the evidence, facts and the other considerations appearing on both sides is clearly manifest by the perusal of the judgment of the lower appellate court, it would be a valid judgment even though it does not contain the points for determination. The object of the rule in making it incumbent upon the appellate court to 11 Second Appeal No. 25 of 2021 frame points for determination and to cite reasons for the decision is to focus attention of the court on the rival contentions which arise for determination and also to provide litigant parties opportunity in understanding the ground upon which the decision is founded with a view to enable them to know the basis of the decision and if so considered appropriate and so advised to avail the remedy of second appeal conferred by Section 100 CPC.” (Emphasis supplied) 16 Keeping in view the ratio of G. Amalorpavam & Others v. R.C. Diocese of Madurai & Others (supra) as was done by the Hon’ble Supreme Court of India in the case of Karuppuraj vs. M. Ganesan (Supra), it is certainly not a mandate of law that the learned second appellate court will set aside the judgment passed by the learned first appellate court on a mere technical ground for non- compliance of Order XLI Rule 31 of Code of Civil Procedure for not even enumerating the points for determination but in this case, unlike the case of Karuppuraj vs. M. Ganesan (Supra) the learned first appellate court as already indicated above has formulated the two points for determination. The law thus emerges is that where there is substantial compliance of Order XLI Rule 31 of the Code of Civil Procedure by the learned first appellate court and if the learned first appellate court has considered the entire evidence on the record and discussed the same in detail in coming to the conclusion and its findings are supported by reasons, such judgments are not to be set aside and remanded. Hence, this Court is of the considered view that this is not a fit case where the impugned judgment and decree passed by the learned first appellate court is to be set aside and remanded on the ground of non-compliance of Order XLI Rule 31 of Code of Civil Procedure by the learned first appellate court. 12 Second Appeal No. 25 of 2021 17 So far as the contention of the appellant regarding Section 2 of Hindu Succession Act, 1956 is concerned, it is needless to mention here that it is a settled principle of law that the plaintiff has to stand on its own leg and certainly it cannot get the benefit from the weakness of the defendants. 18 It is also a settled principle of law that the plaintiff has to set forth and prove its case which makes it entitled to the relief prayed for in a suit. Now in this case, the plaintiff has filed the suit inter alia for declaration of right, title, interest and partition. Section 2 (2) of the Hindu Succession Act, 1956 as already indicated above starts with the non-obstante clause so far as the applicability of Section 2 (1) of the said Act and thereafter it proceeds that nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of clause (25) of Article 366 of the Constitution of India unless the Central Government, by notification in the Official Gazette, otherwise directs. 19 It is needless to mention here that the Central Government has not published any notification in the official gazette which directs otherwise then the provision contend in Section 2 (2) of Hindu Succession Act, 1956. Since, in the plaint itself, the plaintiff has admitted that the parties are members of Scheduled Tribe meaning thereby the plaintiff is also the member of Scheduled Tribe, certainly the provision of the Hindu Succession Act, 1956 is not applicable to the plaintiff. Since, the plaintiff prayed for the relief for declaration of right, title, interest and partition, the burden was upon the plaintiff to 13 Second Appeal No. 25 of 2021 set forth the case which would make her entitle to the right, title and interest over the suit property; so far for the relief of right, title and interest is concerned and to establish unity of possession and title of the plaintiff with the defendants; for the relief of partition. 20 Now as the provision of Hindu Succession Act, 1956 is not applicable to the plaintiff being the member of Scheduled Tribe, so it was incumbent upon the plaintiff to plead and prove, as to on what basis she is entitled for the relief of declaration of right, title, interest or for partition but the plaintiff has miserably failed in setting forth any ground in her pleading; as to how she is entitled to the right, title, interest or on what basis she is claiming unity of possession and title with the defendants. Having not done so, certainly the suit of the plaintiff has to fail. The defendants on the other hand have pleaded the customs that female in the Munda community to which the plaintiff belongs have no right to inherit the property of their father. Even if there is any shortcoming in the evidence of the defendants in establishing such custom certainly that will not be of any help to the plaintiff because the plaintiff has to make out from its own pleading and evidence, as to how she is entitled to the relief claimed. 21 After going through the materials in the record, this Court finds that the finding of fact arrived at by the learned first appellate court was not done by ignoring or excluding the relevant materials or by taking into consideration the irrelevant material. Nor the finding of fact arrived at by the learned first appellate court being the final court of facts so outrageously defies the logic as to suffer from the 14 Second Appeal No. 25 of 2021 vice of irrationality incurring the blame of being perverse. 22 Under such circumstances, this Court is of the considered view that the concurrent finding of facts returned by both the courts below having not suffered from perversity, there is no justifiable reason to interfere with the concurrent finding of facts of both the courts below and there is no substantial question of law involved in this appeal. 23 Accordingly, this appeal being without any merit is dismissed but under the circumstances without any costs. 24 Let a copy of this Judgment be sent to the court concerned forthwith. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 2nd May, 2023 AFR/ Sonu-Gunjan/- 15