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2002 DIGILAW 520 (ORI)

DHANSINGH MAJHI v. DUARU MAJHI

2002-08-16

L.MOHAPATRA

body2002
JUDGMENT : L. Mohapatra, J. - The Plaintiffs are the Appellants against a confirming judgment. 2. The case of the Plaintiffs-Appellants is that one Ghichei Majhi was the maternal grand mother of the Plaintiffs who succeeded to the suit properties on death of her father Khutalu Majhi who was the original owner thereof. Ghichei Majhi and married to one Kumel Majhi and they had one daughter namely, Sobha Dei (mother of the Plaintiffs) and one son namely, Bhagaban. Bhagaban had married to one Bhama Majhi and during life time of Bhama Majhi, Bhagaban died issueless. Defendant No. 1 is a stranger to the family. After death of Ghichei Majhi, mother of the Plaintiffs and Bhagaban Majhi succeeded to the properties left by their mother Ghichei Majhi. After death of Bhagaban Majhi without any issue, the mother of the Plaintiffs succeeded to the entire properties as the only survivor, Bhama, having no claim over the properties. However, the Defendant No. 1 obtained a sale deed from Defendant No. 2 i.e. Bhama Majhi and started disturbing in the possession of the Plaintiffs over the suit land who had succeeded to the properties after death of their mother Sobha Dei. The Plaintiffs, therefore, filed the suit for declaration of their right, title and interest over the suit land. 3. Defendant No. 1 filed a written statement denying the plaint allegations and it was specific case of the Defendant No. 1 that Khutalu Majhi was the original title holder of the suit properties. His further case is that the mother of the Plaintiffs having not succeeded to the suit properties and the same having been purchased by him from the Defendant No. 2 who is the original owner of the properties under a registered sale deed, it is not open to the Plaintiffs to challenge the validity of the same. His further case is that the entire properties were recorded in the name of Kumel Majhi (husband of Ghichei Majhi) who was in possession of the same title his death and after his death the entire suit land was inherited to his only son Bhagaban and after death of Bhagaban, his wife Bhama succeeded to the properties. All the revenue records indicate Kumel as the owner of the properties. A further dispute was also raised stating that Kumel is the son of Khutalu Majhi and Ghichei is the wife of Kumel. All the revenue records indicate Kumel as the owner of the properties. A further dispute was also raised stating that Kumel is the son of Khutalu Majhi and Ghichei is the wife of Kumel. The Plaintiffs case that Ghichei was the daughter of Khutalu Majhi is specifically denied. 4. On the above pleadings of the parties, trial Court framed as many as 9 issues, and found that evidence on record clearly indicate that Kumel is the son of Khutalu Majhi and after death of Kumel Majhi, his only son Bhagaban succeed to the properties. After death of Bhagaban, his wife Bhama who is the vendor of Defendant No. 1 succeeded to the properties and as such it declared the sale by Bhama in favour of Defendant No. 1 to be valid. The trial Court further held that Kumel having expired prior to 1956. Sobha, the mother of the Plaintiffs did not have any right over the suit properties and the entire properties went to the only son of Kumel. With the above findings, the suit was dismissed. The appeal carried by the Plaintiffs before the learned Addl. District Judge, Bolangir was also dismissed on similar findings. 5. At the time of admission, this Court formulated the following substantial question of law: What is the effect of the admission in the written statement that Ghichei is the daughter of Khutalu? The learned Counsel appearing for the Appellants challenged the findings of the Courts below with reference to the substantial question of law framed by this Court stating that the genealogy given in the plaint indicating Ghichei as the daughter of Khutalu was admitted in the written statement and, therefore, it was not open for the Defendants to plead that Ghichei is not the daughter of Khutalu and Khutalu died leaving behind only one son Kumel who happens to be the husband of Ghichei. He further submitted that there was no issue to the above effect framed by the trial Court and accordingly, both the Courts below to that effect should not have held that Kumel is the son of Khutalu and Ghichei is not the daughter of Khutalu but wife of Kumel only. He further submitted that there was no issue to the above effect framed by the trial Court and accordingly, both the Courts below to that effect should not have held that Kumel is the son of Khutalu and Ghichei is not the daughter of Khutalu but wife of Kumel only. The learned Counsel further submitted that even if the findings of the Courts below are accepted to the extent that Kumel is the son of Khutalu there is no dispute that Kumel and Ghichei left behind one daughter and one son namely, Sobha Dei and Bhagaban. The evidence on record indicate that Kumel died after 1956 and accordingly Sobha, the mother of the Plaintiffs is entitled to a share in the properties and the Courts below should have allowed the suit to that extent. 6. The learned Counsel for the Respondents submitted that the admission as indicated by the learned Counsel for the Appellants in the written statement of the Defendants was deleted by way of an amendment and therefore at the time of hearing of the suit there was no admission by the Defendants so far as genealogy given in the plaint is concerned. It was also contended on behalf of the Defendants that the findings of fact, in exercise of jurisdiction u/s 100, CPC should not be disturbed. 7. So far as the first question is concerned, it appears that in the plaint the genealogy of the Plaintiffs family has been given where Ghichei has been described as the daughter of Khutalu in paragraph 3 of the plaint. In the written statement originally filed by the Defendants it was contended that the contents of the paragraphr-3 of the plaint are true and hence admitted. Referring to the same, learned Counsel for the Appellants submitted that since genealogy given in paragraph 3 was admitted by the Defendants, there was no scope for them to take a different plea before the trial Court and having admitted Ghichei the daughter of Khutalu, no issue was framed by the trial Court whether Ghichei was the daughter of Khutalu Majhi or Kumel was the son of Khutalu. From the order-sheet of the learned Subordinate Judge Titilagarh, it appears that a prayer for amendment of the written statement was made and the prayer was allowed by order dated 5.8.1982. The office was directed to carry out the amendment in the written statement. From the order-sheet of the learned Subordinate Judge Titilagarh, it appears that a prayer for amendment of the written statement was made and the prayer was allowed by order dated 5.8.1982. The office was directed to carry out the amendment in the written statement. The admission appearing in the original written statement was replaced by denial. The aforesaid order having not been challenged by the Plaintiffs-Appellants, it is ho more open for them to submit that there was any such admission in the written statement. The learned Counsel for the Appellants further submitted that the Defendants having not carried out the amendment by filing of a consolidated written statement the effect of admission in the original written statement cannot be taken up and it will be deemed that there is no amendment In the written statement. I am unable to accept this contention since there was no direction of the learned Subordinate Judge to the Defendants to carry out the amendment. On the other hand, the office was directed to carry out the amendment. This aspect of the argument of the learned Counsel for the Appellants has also been taken care of by the lower appellate Court and the said submission was rejected. I do not find any reason to take a different view on this point. 8. The second submission of the learned Counsel for the Appellants is that no issue had been framed as to whether Ghichei was the daughter of Khutalu or Kumel was the son of the Khutalu. It appears from the judgment of the trial Court that an issue was framed whether Ghichei succeeded Khutalu or Kumel. Since a dispute was raised as to whether Ghichei is the daughter of Kumel is the son of Khutalu; the aforesaid issue was framed and therefore, the submission of the learned Counsel for the Appellants that such an issue was not framed is not acceptable. Both the Court have concurrently found that Ghichei is not the daughter of Khutalu and Kumel is the son of Khatalu. The findings having been arrived at on consideration of the oral evidence as well as documentary evidence such as Ext. B in which Kumel was recorded as a tenant and Column 2 of Ext. B where Kumel has been described as son of Khutalu Majhi. The findings having been arrived at on consideration of the oral evidence as well as documentary evidence such as Ext. B in which Kumel was recorded as a tenant and Column 2 of Ext. B where Kumel has been described as son of Khutalu Majhi. I, therefore, decline to disturb the aforesaid concurrent finding of fact that Kumel is the son of Khutalu. So far as the third submission of the learned Counsel for the Appellants is concerned, it appears from the findings of the Courts below that on consideration of the oral evidence available on record, both the Courts have found that Kumel expired prior to 1956. There is no positive evidence indicating the year in which Kumel Majhi expired. Whatever indirect evidence is available with regard to the year of death from different witnesses both the Courts concluded that Kumel Majhi expired prior to 1956. There is no scope 'or this Court to disturb the aforesaid concurrent finding of fact which is based on evidence available or, record and accordingly, if the said finding is accepted, Sobha the daughter of Kumel cannot have any right over the suit (and left by Kumel and the only admitted son Bhagaban succeeded to the properties left by Kumel. After death of Bhagaban his wife Bhama succeeded to the properties and being owner of the properties, sold the same to the Defendant No. 1 on payment of consideration. Since the mother of the Plaintiffs had no claim of share in the properties left by Kumel, the Plaintiffs have also no right to claim any share. It also appears from the documents that parties are Kandhas by caste and as per Presidential order Kandhas are belonging to Schedule Tribe. The learned Counsel for the Appellants has not been able to show any document or evidence indicating that the parties do not belong to Schedule Tribe and are governed under The Hindu Succession Act. Since all the documents available on record clearly indicate '.hat the parties are Kandhas by caste and belong to Schedule Tribe, the Hindu Succession Act is not applicable to them and as such the mother of the Plaintiffs had no claim over the properties of her parents even if the father of Sobha is accepted to have expired after 1956. 9. 9. I do not find any reason to differ with the findings of the Courts below and accordingly, the appeal is devoid of any merit and stands dismissed. Final Result : Dismissed