The High Court
Case Details
Second Appeal No. 534 of 2015 IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.534 of 2015 (Against the judgment and decree of concurrence dated 30.05.2015 passed by the learned District Judge-I, Rajmahal in Title Appeal No. 13 of 2008) ------ 1. Sohrai Uraon, S/o Late Jhari Uraon, 2. Jamuna Uraon, S/o Late Jhari Uraon, 3. Pochre Urow, S/o Dalia Uraon, 4. Poche Urow, S/o Late Bhadu Uraon, 5. Kishna Uraon, S/o Late Bhadu Uraon, 6. Chummu Uraon @ Chumnu Uraon, S/o Late Lalua Uraon, 7. Bhawani Uraon, S/o Sukra Uraon, 8. Ranjit Uraon, S/o Late Dashrath Uraon, 9. Raj Kumar Uraon, S/o Late Dashrath Uraon, All residents of village –Kritikdanga, P.O. & P.S. –Rajmahal, District - Sahibganj .... .... Plaintiff/Appellant/Appellant …. Versus 1. Mahadeo Uraon, S/o Late Aklu Uraon @ Kalu Uraon, R/o –Village – Hathigarh, P.O. & P.S. –Rajmahal, District –Sahibganj 2. Binod Uraon, S/o Late Mary Uraon, resident of village –Kritikdanga, P.O. & P.S. –Rajmahal, District –Sahibganj. .... .... …. Defendant 1st Party/Respondent 1st Party/ Respondent 1st Party 3. The Deputy Commissioner, Sahibganj, District -Sahibganj .... .... …. Defendant 2nd Party/Respondent 2nd Party/Proforma Resp. -2nd Party For the Appellants : Mr. Sudhanshu Shekhar Choudhary, Advocate ------ ------ PRESENT HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ------ By the Court:-
Legal Reasoning
Heard the learned counsel for the appellants. 2 This second appeal has been preferred under Section 100 of Code of Civil Procedure against the judgment and decree of concurrence dated 30.05.2015 passed by the learned District Judge- I, Rajmahal in Title Appeal No. 13 of 2008 whereby and where under, the learned first appellate court has dismissed the appeal with costs. 1 Second Appeal No. 534 of 2015 3 The case of the plaintiffs in brief is that the plaintiffs and the defendants belonged to Scheduled Tribe and they are of the same family. The defendant no.1 is the son of Birshi who is daughter of Mangra Uraon the recorded tenant and they are Uraon by Caste. It is the further case of the plaintiffs that the suit land originally belonged to the ancestors of the plaintiffs and the defendants being Churmu, Bhukru and Mangra. Churmu and Bhukru have four and two sons respectively whereas Mangra have five daughters including Birshi. It is the further case of the plaintiffs that in the year, 1980-1981, Mahadeo Uraon demanded partition of the share of his maternal grandfather. The defendant nos. 2 & 3 who are the descendants of the original recorded tenant Churmu Uraon and the defendant no.4 who is also the descendant of Churmu Uraon supported the claim for partition of the defendant no.1. A Panchayati took place in which some land was given to Mahadeo Uraon- the defendant no.1 but he refused to take the same. The defendant no.1 filed a petition for mutation before the Circle Officer and the land was mutated in the name of the defendant no.1. The plaintiffs cannot file any appeal regarding the said order of mutation as they could not receive the copy of the order though the plaintiffs filed appeal before the Settlement Officer, Sahibganj, they lost. The plaintiffs next pleaded that the marriage of Birshi was performed as a general marriage and there is no provision in Uraon Caste for Gharjamai Marrige. The 2 Second Appeal No. 534 of 2015 plaintiffs further pleaded that the defendant nos. 2, 3 & 4 were not adopted by Mangra Uraon and Mangra Uraon died in the year 1936 while being still in jointness with his two other brothers. The plaintiffs prayed for the relief of declaration of right, title and interest over the suit land. 4 In their joint written statement, the private defendants challenged the maintainability of the suit on various technical grounds. They pleaded that the plaintiffs also filed suit for declaration of title and ownership of over the suit land before the Settlement Officer but the plaintiffs lost up to the court of Commissioner, Dumka. It is the case of the defendants that they have been paying rent in respect of the suit land and have been in possession of the same. The defendant nos. 2 & 3 were allowed by Mangra Uraon- the recorded tenant and his wife to stay with them due to love and affection but there is no adoption of them by Mangra. The defendant nos. 1, 2 & 3 have been in physical possession of the entire suit property and they have been cultivating the same since their childhood. The defendants pleaded that the marriage of Birshi took place in Gharjamai form of marriage and the defendant no.1 –Mahadeo was born out of the said wedlock in the house of Mangra Uraon- the recorded tenant, so the defendant has legally inherited all the property left by his maternal grandfather. The defendants denied that the property is joint as the property has been recorded separately in the name of 3 Second Appeal No. 534 of 2015 Mangra Dhangar in the Khatiyan of Settlement prior to the Settlement held in or about the year, 1930 and the possession of the property has also been shown separate in the possession column of the Khatiyan. 5 On the basis of the rival pleadings of the parties, the following thirteen issues were framed by the trial court which are as under:- 1. 2. 3. 4. 5. 6. 7. 8. 9. Is the suit as framed as maintainable? Are the plaintiffs have got valid cause of action for the present suit? Is the suit undervalued? Is the suit hit by principle of Limitation, waiver, estoppel and acquiescence? Is the suit barred by principles of res-judicata? Whether this Court has got no jurisdiction to try the suit? Is the suit bad for the lack of notice under Section 80 of the C.P.C.? Are the plaintiffs entitled for decree for declaration of title, ownership and possession over the suit land? Are the plaintiffs entitled for recovery and confirmation of possession over the suit land? Are the plaintiffs entitled for permanent injunction? 10. 11. Whether Birshi - daughter of Mangra Uraon (R.T.) married in Gharjamai form? Are the plaintiffs acquired right over the suit land by adverse possession? Are the plaintiffs entitled for any other relief or reliefs in the suit? In support of their case, the plaintiffs examined only one 12. 13. 6 witness and proved the documents which have been marked Ext. 1 to 3. On the other hand, from the side of the defendants, five witnesses have been examined and the defendants have also proved the documents which have been marked Ext. A, B, C & E series and Ext.D. 4 Second Appeal No. 534 of 2015 7 The learned trial court first took up issue no.11 and considering the evidence in the record and the admitted fact of both the parties that the parties are Scheduled Tribes and come under the aboriginal caste such as ‘Dhangar’ where customary law of inheritance as well as marriage prevailed and the oral evidence in the record which confirms that Birsi, the youngest daughter of Mangra Uraon, married with Aklu in Gharjamai form of marriage and which has been supported by the witnesses by D.W.1 in para - 5, 6 & 53 and D.W.3 in para -3, 4, 6 and 12 as well as the order of the Assistant Settlement Officer in Ext. B in Title Suit No.54 of 1982 and the appeal against which was dismissed by the Settlement Officer in Title Appeal No. 25 of 1985 as well as Ext.B/2 which is the order of the Title Revision No. 85 of 1986 by which the revision was dismissed, the trial court came to the conclusion that as both the oral as well as documentary evidence available in the record shows that Birshi Uraon was married with Aklu Uraon in Gharjamai form of marriage and came to the conclusion that Birsi, the daughter of Mangra Uraon –the recorded tenant and mother of the defendant no.1 was married with Aklu in Gharjamai form and they were living in the house of Mangra Uraon. The learned trial court next took up issue no. 8 and considering the materials in the record came to the conclusion that the plaintiffs have no right, title, interest and possession over the suit land. The learned trial court next took up issue nos. 9 & 12 together and after considering 5 Second Appeal No. 534 of 2015 materials in the record observed that there is no evidence in the record which supports the case of the plaintiffs that the plaintiffs have possession over the suit land, rather the cogent evidence of possession is in favour of the defendants. The learned trial court next held that the claim of the plaintiffs that they have acquired right and title by way of adverse possession before the enactment of the Santhal Pargana Tenancy Act, 1949 has not been established by the plaintiffs in the suit, therefore, decided the issue nos. 9 & 12 against the plaintiffs and in favour of the defendants. In respect of issue nos. 5 & 6 next jointly taken up by the trial court, the learned trial court, considering the materials in the record held that the principle of res judicata is not applicable to the suit and the court has jurisdiction to try the suit and thus answered the issue nos. 5 & 6 in favour of the plaintiffs. In respect of issue no.2, the learned trial court held that the plaintiffs have got no valid cause of action for the suit and in respect of issue no.1, the learned trial court held that the suit is not maintainable. The learned trial court disposed of issue nos. 3 & 4 as not pressed by the parties and in respect of issue no.7, the learned trial court held that the suit is not bad for notice under Section 80 of the Code of Civil Procedure and decided issue nos. 7 in favour of the plaintiffs as well. In respect of issue no.10, the learned trial court observed that in view of its finding that the plaintiffs have no right, title, interest and possession over the suit land and as such, the plaintiffs are not entitled to the relief of 6 Second Appeal No. 534 of 2015 permanent injunction. The learned trial court lastly took up issue no.13 and considering the entire facts of the case, held that the plaintiffs have not established their case, so the claim regarding right, title, interest and possession as well as right and title on the basis of adverse possession of the suit, hence they are not entitled to any relief and dismissed the suit but without costs. 8 Being aggrieved by the judgment and decree passed by the learned trial court, the plaintiffs filed Title Appeal No.13 of 2008 in the court of District Judge, Sahibganj which was ultimately heard and disposed of by the learned first appellate court by the impugned judgment and decree. 9 The learned first appellate court made independent appreciation of the evidence in the record and considered the submissions made by the rival parties before it. The learned first appellate court also considered that from the documentary evidence put forth by the parties, it is evident that the marriage of Birshi was performed in Gharjamai form of marriage and the defendant no.1 was born out of the wedlock of Birshi with Aklu in the house of Mangra Uraon, the father of Birshi. From Ext.A, which is an abstract Khatiyan relating to Jamabandi no. 15, the learned first appellate court considered that Mangra Dhangar @ Mangra was the recorded tenant and from Ext.B and B/1, the learned first appellate court observed that before the original suit, there was Title Suit No. 54 of 1982 contested between the plaintiffs 7 Second Appeal No. 534 of 2015 and the defendants which was decreed on 26.08.1995 in favour of the defendant no.1. The appeal of the said judgment vide Title Appeal No. 25 of 1985 was dismissed vide order marked Ext. B/2. The Title Revision No. 85 of 1986 was also dismissed by order dated 03.08.1993 by the Commissioner, Dumka and the documents goes to show that the defendant no.1 –respondent has won the case for his title, right and possession. The said order also shows that the marriage of Birshi was performed with Aklu in Gharjamai form of marriage. The learned first appellate court also considered Ext. B/3 and B/4 which are the orders passed in a proceeding under Section 144 Cr.P.C. whereby the Executive Magistrate found the possession of the defendant no.1 and made declaration as such. From Ext. B/6, the learned first appellate court deduced that the suit land has been mutated in the name of defendant no.1. Ext. C series is the Voter List from which it is evident that the name of the defendant as well as the name of his mother –Birshi Uraon is standing in the Voter List of the village Kartik-danga. Ext. D is the decree prepared in Title Suit No. 54 of 1982 in favour of the defendants and Ext. E series are the rent receipts of different years from 1975 to 1997 in the name of the defendants relating to the suit land and the receipts confirmed that the defendants are in possession of the suit land they are regularly paying the rent to the government and came to the conclusion that the evidence in the record establishes that the marriage of Birshi was performed with 8 Second Appeal No. 534 of 2015 Aklu in Gharjamai form of marriage and decided the issue no.11 in the negative. The learned first appellate court next took up issue nos. 8 & 9 and considering the evidence in the record came to the conclusion that the plaintiffs are not entitled for any title or possession over the suit land and question of recovery and confirmation of possession does not arise. The learned first appellate court next took up issue no. 4, 5, 6 & 7 together and considering the evidence in the record came to the conclusion that the civil court has got jurisdiction to try the suit and the suit is not barred by res judicata. The learned first appellate court thereafter took up issue no. 1, 2, 3, 12 & 13 together and held that the suit as framed is not maintainable. The plaintiffs have no cause of action for the suit and they have no right, title and interest over the suit property nor they have acquired title through adverse possession and thus they are not entitled to any relief and dismissed the appeal. 10 The learned counsel for the appellants submits that both the courts below could not appreciate the evidence in the record in their proper perspective and failed to consider that Aklu Uraon alone cannot succeed his father-in-law as per the Santhal Customary Law in a Gharjamai form of marriage. It is next submitted that the courts below have not considered the fact whether Aklu Uraon can be declared to be the legal heir of his father-in-law –Mangra Uraon in accordance with the prevailing 9 Second Appeal No. 534 of 2015 Santhal customary law. It is next submitted that both the courts below failed to consider that the defendant failed to establish that the marriage between Birshi and Aklu was in Gharjamai form of marriage. It is next submitted that both the courts below failed to consider that the defendant no.1 could not produce any documentary evidence in support of his claim of Gharjamai form of marriage of Birshi and Aklu and the defendants could not establish that Aklu inherited any property of his father-in-law in capacity of a Ghardamad. Hence, it is submitted that the judgment and decree passed by both the courts below be set aside and the suit of the plaintiffs be decreed. 11 Having heard the submissions made at the Bar and after going through the materials in the record, this Court finds that the five witnesses examined by the defendant particularly, the D.W.1 and 3 as already indicated in the foregoing paragraph of the Judgment, have categorically stated about the marriage of Brishi having been solemnized with Aklu in Gharjamai form of marriage. The oral testimony of the witnesses of the defendant as corroborated by the documentary evidence in the shape of orders passed by the Assistant Settlement Officer in Title Suit No. 54 of 1982 and the appellate order passed by the Settlement Officer in Title Appeal No. 25 of 1985 as also the Commissioner, Dumka in Title Revision No. 85 of 1986. The Voter List also supports that the defendant no.1 and her mother used to reside in the village of the 10 Second Appeal No. 534 of 2015 father of Birshi namely Mangra Uraon and not in the village of Aklu who had Birshi married in the Gharjamai form of marriage. 12 After going through the evidence in the record, this Court is of the considered view that the finding of fact arrived at by courts below were not by ignoring or excluding relevant material or by taking into consideration irrelevant material nor the finding so outrageously defies logic as to suffer from the vice of irrationality, incurring the blame of being perverse and in the absence of any perversity in the concurrent finding of facts by both the courts below, this Court is of the considered view that there is no justifiable reason to interfere with the concurrent finding of facts by both the courts below and this appeal do not involve any substantial question of law. 13 Accordingly, this appeal being without any merit is dismissed but under the circumstances without any costs. 14 Let a copy of this Judgment be sent to the court concerned forthwith. High Court of Jharkhand, Ranchi Dated the 28th June, 2023 AFR/ Sonu-Gunjan/- (Anil Kumar Choudhary, J.) 11