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2001 DIGILAW 135 (JHR)

Sanika Munda v. Jhablu Munda

2001-02-16

GURUSHARAN SHARMA

body2001
ORDER Gurusharan Sharma, J. 1. Birsa Munda had four sons, namely, Somra Munda, Langra Munda, Baga Munda and Budhu Munda, Plaintiffs, who were sons of Budhu Munda, filed Title Suit No. 170 of 1980 for partition of their 1/3rd share in the suit property, detailed in Schedules A and B to the plaint, against defendants 1 and 2, who were sons of Langra Munda, defendant No. 3, who was son of Baga Munda and defendant No. 4, who was daughter of Somra Munda. 2. Plaintiffs case was that Somra Munda died leaving behind only 4 daughters, including defendant No. 4, who had no right to inherit the estate left by him, according to Mundas prevailent custom and, therefore, the same devolved upon his brothers family equally in three parts, namely, 1/3rd to defendants 1 and 2 No. 3, 1/3rd to plaintiffs. 3. Only defendant No. 4 filed written statement and contested the suit. According to her, by registered deed of gift dated 19.4.1966, her father made gift of the suit land in here favour and since then she had been coming in peaceful possession thereof. 4. Her further case was that suit land was exclusive property of her father, Somra Munda and plaintiffs or other defendants had neither any interest therein nor they were entitled to claim its partition. 5. The suit was decreed holding that suit land was ancestral property, wherein Somra Munda and his three brothers had equal share. Defendant No. 4 had no right to inherit share of her father and as such, plaintiffs were entitled to partition their 1/3rd share therein. 6. Defendant No. 4 preferred Title Appeal No. 1 of 1983, which was allowed, trial Courts judgment and decree were set aside and suit was dismissed. 7. While reversing trial Courts findings, Court of appeal below, on the basis of statement of PW 4 observed that there was partition among Somra Munda and his brothers and there was nothing on record to disbelieve the said statement. Plaintiffs, therefore, had no interest in the suit property, which exclusively belonged to Somra Munda and, from him defendant No. 4 acquired it, by virtue of a deed of gift, Ext. B. It was further held that there was no unity of title and possession between the parties and the suit land was not partible. Plaintiffs, therefore, filed the present Second Appeal. 8. B. It was further held that there was no unity of title and possession between the parties and the suit land was not partible. Plaintiffs, therefore, filed the present Second Appeal. 8. At the time of admission of appeal, the following substantial question of law was framed : "Whether in absence of any plea of partition between Somra Munda and Langra Munda, the learned Court below could have dismissed the suit for partition filed on behalf of the plaintiffs-appellants, on the basis of the statement made by PW 4 alone?" 9. A perusal of written statement filed by contesting defendant No. 4 shows that neither any case of previous partition nor of self-acquisition by Somra Munda was pleaded. A perusal of deposition of PW 4 shows that in his examination-in-chief, the said witness stated that there was no partition of the suit land or residential house among the parties and cultivation was being done by them according to their convenience. In cross-examination, PW 4 stated that Birsa Munda, in his life time made arrangement, whereby his two sons, namely. Baga and Budhu were to enjoy property at village Raitoli and other two sons, namely. Somra and Langra were to enjoy property at village Pandu and, accordingly, names of only two brothers Somra Munda and Langra Munda were recorded for the suit land. However, there was no state- ment made by PW 4 that at any time, there was partition by metes and bounds among them. 10. I, therefore, find that Court of appeal below has committed an error of record in observing that PW 4 stated about partition between Somra Munda and Langra Munda and on that basis, it was wrongly held that there was previous partition and the plaintiffs were thereafter not entitled to re-partition. 11. It is not in dispute that no case of previous partition was even advanced by contesting defendant No. 4. The question to be decided in the suit was whether defendant No. 4 being daughter of Somra Munda was entitled to inherit estate left by him, in view of custom in Munda community and/or her claim on the basis of alleged gift over the suit land was justified. 12. It was not in dispute that as per Munda communitys custom defendant No. 4 was not entitled to any share in the suit properties. 13. 12. It was not in dispute that as per Munda communitys custom defendant No. 4 was not entitled to any share in the suit properties. 13. So far as alleged gift was concerned, defendant No. 4 not only failed to prove it, the said gift, if any, by a coparcener in respect of specific joint family property, without knowledge/consent of other coparceners was illegal. 14. In such circumstance. I set aside the impugned judgment and decree passed by the Court of appeal below and confirm the judgment and decree passed by trial Court. 15. In the result, this Second Appeal is allowed and the suit is decreed. However, there will be no order as to costs. 16. Appeal allowed.