Research › Search › Judgment

Jharkhand High Court · body

2004 DIGILAW 679 (JHR)

Anjalus Uraon v. Kamil Uraon

2004-07-06

VISHNUDEO NARAYAN

body2004
JUDGMENT Vishnudeo Narayan, J. 1. This appeal at the instance of the plaintiffs appellant has been preferred against the impugned judgment and decree of affirmation dated 5.12.1987 and 21.12.1987 respectively passed in Title Appeal No. 25 of 1985 by Shri Yugal Kishore Prasad, 6th Additional District Judge, Palamau at Daltonganj whereby and whereunder the judgment and decree dated 26.3.1985 and 10.4.1985 passed in Title Suit No. 74 of 1983 by the trial Court were affirmed and the appeal aforesaid was dismissed. 2. The plaintiffs-appellant had filed Title Suit No. 74 of 1983 for declaration of their title and confirmation of possession in respect of the suit land detailed in the Schedule at the foot of the plaint and in the alternative for recovery of possession. The suit land is of plot Nos. 89, 144, 86 and 154 having an area of 7.18 acres appertaining to Khata No. 21 of village Kitta P.S. Mahuadarn District Palamau. 3. The case of the plaintiffs-appellant in brief, is that Khata No. 21 having an area of 11.87 acres situate in village Kitta P.S. Mahuadaran District Palamau was jointly recorded in the Survey Records of Right in the names of Chotka Makri Uraon. Most. Jhari Urain, widow of Jheeru Uraon and Gholha Uraon son of Pilai Uraon and in the remark column of Khata No. 21 of the Survey Records of Right their exclusive possession was separately recorded in respect of plots of Khata No. 21 over which each of them was in exclusive possession Jheeru, Pilai Uraon Uraon and Chotka Makri Uraon are the sons of Budhua Uraon. Defendant No. 1 Kamil Uraon son of Bandhana Uraon is the defendant of Chotka Makri Uraon Gholha Uraon son of Pilai Uraon aforesaid has died issueless. Jhari Uraon widow of Jheera Uraon has a daughter named Sahbani Urain who was married with Chunni Uraon and both the plaintiffs are the sons of Sahbani Urain born of Chunni Uraon. Defendant No. 1 Kamil Uraon son of Bandhana Uraon is the defendant of Chotka Makri Uraon Gholha Uraon son of Pilai Uraon aforesaid has died issueless. Jhari Uraon widow of Jheera Uraon has a daughter named Sahbani Urain who was married with Chunni Uraon and both the plaintiffs are the sons of Sahbani Urain born of Chunni Uraon. The case of the plaintiffs further is that the suit plots aforesaid were exclusively recorded in possession of Jhari Urain and Gholha Uraon both haveing equal share and they had cultivated the suit and jointly during their life after the death of Gholha Uraon his entire interest devolved upon Jhari Urain aforesaid and she became alone entitled to hold the entire suit land and she remained in cultivating possession till her life and she died about 50 years ago. It is also alleged that there was an amicable partition by metes and bound between Chotka Makri Uraon, Gholha Uraon and Jhari Urain two or three years after the final publication of the Survey Records of Right and the suit plots were exclusively allotted to the share of Jhari Urain and Gholha Uraon and the other plots of Khata No. 21 over which the possession of Chotka Makri Uraon was recorded in the remark column were allowed to be retained by him and the said partition was acted upon. Jhari Urain aforesaid died about 50 years ago leaving behind his only daughter Sahbani Urain, Chunni Uraon, the husband of Sahbani Urain was Gar Damad and they succeeded the suit properties. Said Sahbani Urain and her husband Chunni Uraon died one after another within a span of 15 years leaving behind three sons i.e. plaintiffs Nos. 1 and 2 besides Somar Uraon. Somar Uraon has died leaving behind his three daughters who are not the heirs according to the customary law of Praon tribe and both the plaintiffs are the only owners of the suit land. The further case of the plaintiff is that defendant Kamil Uraon has ousted the plaintiff from the suit land and he does not allow the plaintiffs to remain in peaceful possession and creates disturbance in their possession on one plea or the other. The further case of the plaintiff is that defendant Kamil Uraon has ousted the plaintiff from the suit land and he does not allow the plaintiffs to remain in peaceful possession and creates disturbance in their possession on one plea or the other. However, the plaintiffs do cultivate the suit land according to their convenience and situation and the plaintiff has also filed Eviction Case No. 20 of 1982-83 under Section 71-A of the Chotanagpur Tenancy Act which was dismissed and the appeal was also dismissed with an observation that the plaintiffs may if they so like, go to Civil Court for declaration of their title over the suit land and also for recovery of possession and hence the necessity of the suit. 4. The case of the defendant-respondent, inter alia, is that the land of Khata No. 21 aforesaid was jointly recorded in the Survey Records of Right in the name of Chotka Makri Uraon, Jhari Urain and Gholha Uraon and in the remark coloumn of the Survey Records of Right their separate possession was recorded over the plots of said Khata but in fact the separate possession did not remain the same after the survey operation and the entire land of Khata No. 21 remained in cultivation of the joint family of the recorded tenants till 1938. It is alleged that there is another Khata No. 7 consisting of plot Nos. 40, 43, 224, 225, 227 and 239 having an area of 6.27 acres in village Kuro Khurd, P.S. Mahuadaran District Palamau which was recorded jointly in the name of Most Jhari Uraon and Gholha Uraon and the land of Khata No. 21 and Khata No. 7 always remained joint property of the joint family consisting of Chotka Malm Uraon, Gholha Uraon and Jhari Urain and the ancestral house of defendant No. 1 is of plot No. 225 of Khata No. 7 in village Kuro Khurd in which this defendant resides with his family and pay chowkidari tax. It is also alleged that the land of Khata No. 7 is Class 1 paddy land whereas there is only 1.66 acres of paddy land under Khata No. 21 and the rest of the land of this Khata is tand land and Chotka Makri Uraon, Bhola Uraon and Jhari Urain lived jointly and they were in joint cultivating possession of the land of both the Khatas aforesaid. The further case of the defendant-respondent is that Jheeru Uraon, the husband of Jhari Urain and Pilai Uraon died in the state of jointness with Chotka Makri Uraon prior to the survey and thus the land of Khata No. 21 was jointly recorded in the name of Chotka Makri Uraon, Gholha Uraon son of Pilai Uraon, and Jhari Urain widow of Jheeru Uraon in the Survey Records of Right and the land of Khata No. 7 was recorded in the name of Most Jhari Urain and Gholha Uraon. Said Jhari Urain died in the state of joint ness in 1930 leaving behind his 12 years old unmarried daugter Sahbani Drain and Gholha Uraon and Chotka Makri Uraon succeeded to the entire property of both the Khatas aforesaid and Sahbani Urain was brought up by the joint family consisting of Gholha Uraon and Chotka Makri Uraon. Thereafter, Gholha Uraon died in the year 1931 and his wife also died and the land of Khata No. 21 and Khata No. 7 devolved exclusively upon Chotka Makri Uraon. It is alleged that Chotka Makri Uraon also died in the year 1933 leaving behind his , only son Bandhana Uraon who inherited the entire land of Khata Nos. 21 and 7 and he got the marriage of Sahbani Urain performed with Chunni Uraon and out of love and affection he gave the land of Khata No. 7 of village Kuro Khurd to Sabhani Uraon for her maintenance and Sahbani Uraon and her husband have died and the land of Khata No. 7 was used for her maintenance without having any legal right and title in respect thereof. Bandhana Uraon also died in the year 1937 leaving behind his only son Kamil Uraon who was then six years old. Bandhana Uraon also died in the year 1937 leaving behind his only son Kamil Uraon who was then six years old. It is alleged that there had been a Rent Reduction Case No. 36 of 1940 in respect of the land of Khata No. 21 by defendant Kamil Uraon which was allowed and the rent of the land of Khata No. 21 was reduced and the plaintiffs or their mother Sahbani Urain who had died in the year 1971 did not object to the Rent Reduction proceeding nor the possession of defendant No. 1 over the land of Khata No. 21 and for the first time at the instigation of the enemies of this defendant the plaintiffs have started litigating and claiming the land of Khata No. 21 from the year 1982 i.e. after the lapse of 40 years without having any legal right. It is alleged that even the Banda purcha has been issued exclusively in the name of defendant during the recent survey. The plaintiffs have no right title and possession over the lands of both the Khatas aforesaid and no right title and possession of the land of Khata No. 21 and Khata No. 7 have ever devolved upon the descendants of Jhari Urain and the plaintiffs are not in possession of the suit land since 1940 and this defendant and prior to him his predecessors in interest were in possession of the suit land having right title and interest therein. 5. In view of the pleadings of the parties the learned trial Court has framed the following issues for adjudication in this case : (i) Is the suit maintainable as framed ? (ii) Have the plaintiffs cause of action for the present suit ? (iii) Did the plaintiffs inherited the suit land from their parents or whether their father Chuni Oraon inherited the property of Jhario Uraon by way of Ghar Damad ? (iv) Did the defendant No. 1 inherit the suit land from their parents being ancestral property and has title and possession over it ? (v) Is the suit hit by the provision of law of limitation ? (vi) To what other relief or reliefs, if any, are plaintiffs entitled ? 6. While deciding issue Nos. (iv) Did the defendant No. 1 inherit the suit land from their parents being ancestral property and has title and possession over it ? (v) Is the suit hit by the provision of law of limitation ? (vi) To what other relief or reliefs, if any, are plaintiffs entitled ? 6. While deciding issue Nos. 3 and 4 the learned trial Court on the basis of the evidence oral and documentary on the record has held that Jhari Urain has died near about 1934 leaving behind a 12 years old daughter and during her life time her daughter Sahbani was not married and thus the case of the plaintiffs regarding Chunni Uraon being the Ghar Damad of Jhari Urain is not established. It has also been held that the plaintiffs have no right title and interest as well as possession over the suit land and they are not entitled for the declaration as claimed. Thus the trial Court has decided all the issues against the plaintiffs-appellant and dismissed the suit. 7. Being aggrieved by the impugned judgment the plaintiffs-appellant preferred Title Appeal No. 25 of 1985. The learned appellate Court below on re- appraisal and re-appreciation of the evidence on the record has held that Chunni Uraon the father of the plaintiffs was the Ghar Damad of Jhari Urain and he had succeeded to the properties of Jhari Urain as his lawful heir to complete exclusion of the defendants. It has further been held that the defendant- respondent has been coming in continuous possession over the suit land since 1940 and the suit was filed in the year 1983 and as such it is barred by limitation and the contesting defendant has perfected his title over the suit land by adverse possession and the plaintiffs have failed to prove their subsisting title over the suit land in view of the findings aforesaid the appeal was dismissed. 8. The plaintiffs-appellant have filed this appeal before this Court. Being aggrieved by the finding of the appellate Court below regarding Chunni Uraon as Ghar Damad of Jhari Urain the defendant-respondent also filed cross objection under Order XLI, Rule 22 of the Code of Civil Procedure. 9. This Court while admitting the appeal for hearing has formulated the following substantial question of law vide order dated 19.11.1990. Being aggrieved by the finding of the appellate Court below regarding Chunni Uraon as Ghar Damad of Jhari Urain the defendant-respondent also filed cross objection under Order XLI, Rule 22 of the Code of Civil Procedure. 9. This Court while admitting the appeal for hearing has formulated the following substantial question of law vide order dated 19.11.1990. "whether the learned Court of appeal below was correct in dismissing the plaintiffs suit on the ground that the defendant has acquired title to the suit land by adverse possession in absence of any specific pleading to that effect in the written statement ?" 10. In the light of the cross objection further substantial question of law was formulated vide order dated 11.7.1991 by this Court which runs thus : "whether the finding of the learned Court of appeal below erred in holding that Chunni Uraon was Ghar Damad of Jhari Urain without meeting the reasoning of the trial Court." 11. Assailing the impugned judgment it has been submitted by the learned counsel for the appellants that the learned Court below has committed a manifest error in dismissing the appeal of the appellants holding that the defendants has perfected his title over the suit land by adverse possession making out a new case when in fact there is neither averment in the written statement of the defendant regarding perfecting his title by adverse possession nor there is any evidence on the record brought by the defendant in respect thereof and when the learned appellate Court below has held that Chunni Uraon, the father of the plaintiffs was the Ghardamad of Jhari Urain, in view of this finding the appeal ought to have been allowed. It has also been contended that the finding of adverse possession arrived at by the learned appellate Court below is not sustainable in law as the plaintiffs shall be deemed to be the co-owner with the defendants in respect of the suit land by virtue of the fact that their father was the Ghardamad of Jhari Urain. 12. It has also been contended that the finding of adverse possession arrived at by the learned appellate Court below is not sustainable in law as the plaintiffs shall be deemed to be the co-owner with the defendants in respect of the suit land by virtue of the fact that their father was the Ghardamad of Jhari Urain. 12. In contra, it has been submitted that the finding of the learned appellate Court below that Chunni Uraon was the Ghardamad of Jhari Urain is an erroneous finding and is not supported by oral and documentary evidence on the record and the leaned appellate Court below has misconstrued the evidence on the record as well as the alleged admission of DW 1 and DW 5. It has also been submitted that under the customary law of the Uraon tribe if there is no male issue or adopted son but only a Ghardamad duly adopted into the house as a prospective son-in-law by the last male owner or even by his widow and since married to a daughter of the last male owner and living in the house then only the land left by the last male owner on his death shall on the death of the widow go to such ghardamad and here in this case Jheeru Uraon and died prior to the cadastral survey leaving behind his widow Jhari Urain and a daughter Sahbani Urain and after the cadastral survey Jhari Urain also died when her daughter Sahbani Urain was a mere child of 12 years of age and she was unmarried and her marriage was performed by Bandhana Uraon and in this view of the matter question of adopting Chunni Uraon, the father of the plaintiffs as Ghardamad either by Jheeru Uraon or his widow Jhari Urain does not arise at all in this case and the learned appellate Court below has misconstrued the customary law of the Uraon and has adverted to an erroneous finding that Chunni Urain was the Ghardamad of Jhari Urain. It has also been submitted that the alleged admission of DW 5 and DW 1 that Chunni Uraon was the Ghardamad has also been wrongly construed in the facts of this case. It has also been submitted that the alleged admission of DW 5 and DW 1 that Chunni Uraon was the Ghardamad has also been wrongly construed in the facts of this case. It has further been contended that the defendant is the decendants of Chotka Makri Uraon the recorded tenant of the suit land who has succeeded the share of Jhari Urain and Gholha Uraon on their death as they had died in the state of jointness with Chotka Makri Uraon and in this view of the matter the defendant has right title and interest in the suit land and there is cogent evidence on the record regarding his possession over the same and prior to him his predecessor in interest Bandhana Uraon and Chotka Makri Uraon were in possession over the same and it is the settled proposition of law that possession follows title and as such the finding of the learned appellate Court below regarding perfecting title by adverse possession is simply an inadvertent finding not affecting the title and possession of the defendant over the suit land. Lastly it has been contended that plaintiffs or their father Chunni Uraon had no right title and interest in the suit land as Chunni Uraon was not the Ghardamad having been duly adopted into the house as prospective son-in-law either by Jheeru Uraon or his widow Jhari Urain and in this view of the matter dismissal of the suit of the plaintiff by the trial Court and of the appeal by the lower appellate Court cannot be said to be erroneous. Relying upon the ratio of the case of Deo Krishna Singh and Ors. v. Harnedra Prasad and Ors., 1981 BLJR 283, it has been submitted that finding on question of possession in favour of the defendant by appellate Court below is not a finding of law and if it is based on evidence on the record it is not open in the Second Appeal to interfere with the said finding. Further reliance has been placed upon the ratio of the case of Thiagaranjan and Ors. v. Sri Venugopalaswamy B. Koil and Ors., 2004 AIR SCW 1618. 13. Further reliance has been placed upon the ratio of the case of Thiagaranjan and Ors. v. Sri Venugopalaswamy B. Koil and Ors., 2004 AIR SCW 1618. 13. It is an admitted fact that Khata No. 21 of village Kitta P.S. Mahuadarn District Palamau stands jointly recorded in the name of Jhari Urain widow of Jheeru Uraon, Gholha Uraon son of Pilai Uraon and Chotka Makri Uraon in the cadastral Survey Records of Right and Jeeru Uraon, Pilai Uraon and Chotka Makri Uraon are the sons of Budhua Uraon and some of the plots of Khata No. 21 stands recorded in separate possession of Jhari Urain in the remark column of the cadastral survey. According to the plaintiffs suit plot Nos. 89, 144, 86 and 154 having the total area of 7.18 acres appertaining to Khata No. 21 was recorded in possession of Jhari Urain in the remark column of the Survey Records of Right. The basis of the plaintiffs appellant to claim the suit land is that their father Chunni Uraon was the Ghardamand of Jhari Uraon. The plaintiffs-appellant has made out a case in para 6 of the plaint that Jhari Uraon died in exclusive possession of the land in suit more than 50 years ago leaving behind his only daughter Sahbani Urain and according to the custom prevalent in the Uraon family. Chunni Uraon the father of the plaintiffs being married with Sahbani aforesaid and being her husband remained Ghardamad for all times to come till he died. There is no averment in the plaint in respect of the fact whether marriage of Sahbani Urain with Chunni Uraon was ever solemnized in the life time of Jhari Urain who has admittedly died in the year 1933 and in that marriage he was adopted as a Ghardamad or prior to the marriage he was duly adopted into his house by Jhari Urain as a prospective son-in-law and since married to Sahbani Urain. Evidence of PW 6 Anjalus Uraon the plaintiff that Chunni Uraon was adopted as Ghardamad by Jhari Urain has no bearing in view of the fact that there is no such averment in the plaint of the plaintiffs. Evidence of PW 6 Anjalus Uraon the plaintiff that Chunni Uraon was adopted as Ghardamad by Jhari Urain has no bearing in view of the fact that there is no such averment in the plaint of the plaintiffs. On the other hand the specific case of the defendant-respondent is that Sahbani Urain was 12 years unmarriage girl when her mother Jhari Urain had died in the year 1930 soon after the survey in the state of jointness and, thereafter, Gholha Uraon and Chotka Makri Uraon also died and the entire property of Khata No. 21 came in possession of Bandhana Uraon, the son of Chotka Makri Uraon and he got the marriage of Sahbani Urain solemnized with Chunni Uraon. Succession/inheritance is patrilineal in the Uraon tribes as per their customary law which means that the property of the family must not pass out of the clan nor to be inherited in absolute right by a women. In the absence of any lineal descendant of the deseased Uraon holder of the property it passes to the nearest agnate of the said deceased. An Uraon owner of the land who has no sons or any lineal descendant may have recourse to cither of the two contrivances to make a show of continuing his family after his death. He may either adopt a son to himself or take into his house a prospective son-in-law or he may adopt a person as his son-in-law before marriage for the cultivation of his land and, thereafter, get his marriage solemnized with his daughter and adopt him as Ghardamad and such a Ghardamad can in no case inherit the Bhuinhari land of his deceased father-in- law except the Rajhas land. It is a well recognized customary law in the Uraon tribe that if there be no male issue or adopted son, but only a Ghardamad duly adopted into the house as a prospective son-in-law by the last male owner or even by his widow and since married to the daughter of the deceased and leaving in the house the rajhas lands left by the deceased male owner shall on the death of the widow go to such "Ghardamad", and the bhuinhari lands shall go to the nearest male agnate or agnates. It is also relevant to mention here that an unmarried daughter of a deceased Uraon owner shall be entitled from her fathers heirs out of her fathers assets to a suitable maintenance until her marriage and to the necessary expenses for her marriage. It, therefore, emerges from the customary law of Uraon tribe referred to above that succession/inheritance is patrilineal and female is excluded from inheritance/succession and the widow or the unmarried daughter of the deceased Uraon owner of the land is only entitled for maintenance from the heirs of the said deceased Uraon owner of the land. It also emerges from the customary law of the Uraon tribes referred to above that an Uraon owner of. the land and on his death his widow may adopted into the house a prospective son-in-law and since married to the daughter of the deceased Uraon owner of the land and in that case only the said adopted prospective son- in-law shall be deemed to be a Ghardamad, Here in this case both the father and the mother of Sahbani Urain have died prior to the marriage of Sahbani Urain. Therefore, the question of adoption of Chunni Uraon as Ghardamad as per his marriage with Sahbani Urain does not arise at all in this case. Furthermore Bandhana Uraon, the father of the defendant being the heirs of deceased Jhari Uraon, the owner of the land has no right to adopt a prospective son-in-law as Ghardamad for Jhari Urain. Therefore, the admission of DW 1 and DW 5 that Chunni Uraon was the Ghardamad is an erroneous admission against- the settled customary law of the Uraon tribe and this admission has no relevancy at all in this case and the learned appellate Court below has committed a manifest error in setting aside the finding of the learned trial Court in respect thereof on the basis of the said erroneous admission of DW 1 and DW 5. The learned trial Court has specifically stated in its judgment that during the life time of Jhari Uraon, Sahbani Urain was not married and thus the case of the plaintiffs appellant that Chunni Uraon was the Ghardamad is not established. The learned appellate Court below has not met the reasonings of the trial Court in respect thereof in reversing the finding of the trial Court. The learned appellate Court below has not met the reasonings of the trial Court in respect thereof in reversing the finding of the trial Court. Therefore, the finding of the learned appellate Court below that Chunni Uraon was the Ghardamad of Jhari Urain cannot be sustained and is hereby set aside. 14. I have already stated above that it is a well recognized customary law in the Uraon tribe that succession inheritance is patrilineal and female is excluded from inheritance/succession and the widow or the unmarried daughter of the deceased Uraon owner of the land is only entitled for maintenance from the heirs of the said deceased Uraon owner of the land and in the absence of any lineal descendant of the deceased holder of the property of a Uraon it passes to the nearest agnate of the said deceased. Admittedly Budhua Uraon has three sons, namely Jheeru Uraon, the husband of Jhari Urain, Pilai Uraon the father of Gholha Uraon and Chotka Makri Uraon fathers father of the defendant-respondent and Khata No. 21 stands recorded jointly in the name of Jhari Urain, Gholha Uraon and Chotka Makri Uraon aforesaid in the Survey Record of Rights though there was entry in the remark column in respect of the separate possession of the plots of the said Khata. The present defendant-respondent is admittedly the descendant of Chotka Makri Uraon. According to the ease of the plaintiffs- appellant Jhari Urain had died about 50 years ago leaving behind a daughter. According to the defendant she has died in the year 1930. According to the ease of the plaintiffs-appellant Gholha Uraon had died prior to Jhari Uraon but as per the defendant-respondent the said Gholha Uraon had died after the death of Jhari Urain Gholha Uraon had died issue-less. In view of the case of the parties Sahbani Urain cannot be the heir entitled to succeed her mother Jhari Urain as per the customary law prevalent in the Uraon tribe. Admittedly when Jhari Urain and Gholha Uraon had died in the life time of Chotka Makri Uraon as such as per the Customary law of the Uraon tribe Chotka Makri Uraon has succeeded the properties of Khata No. 21 on their death. I have already negatived the case of the plaintiff-appellant regarding Chunni Uraon the husband of Sahbani Urain being adopted as Ghardamad as set up by them. I have already negatived the case of the plaintiff-appellant regarding Chunni Uraon the husband of Sahbani Urain being adopted as Ghardamad as set up by them. Therefore, it becomes crystal clear that Chotka Makri Uraon came in possession of the entire land of Khata No. 21 as of his rights. There had been a Rent Reduction Case filed by Kamil Uraon, the defendant in the year 1940 and the rent was reduced Kamil Uraon paid the rent of Khata No. 21 throughout. There is no chit of paper on the record to show any act of possession of the plaintiffs-appellant over any portion of the land of Khata No. 21. Therefore, defendant-respondent Kamil Uraon has right title and interest in the suit land and prior to him his predecessors in interest had right and interest therein and they all were in possession over the suit land. There is presumption in law that possession follows title. Both the Courts below have concurrently held that the defendant-respondent was in possession over the entire land of Khata No. 21. It is also relevant to mention here that the plaintiffs-appellant has made out a case that they have been ousted from the suit land by the plaintiff but he has not disclosed the date of their ouster in their plaint. The plaintiff-appellant Anjalus Uraon has taken oath as PW 6 on 8.1.1985 and he has deposed that he has left the suit land about 15 years ago. This suit has been filed on 8.10.1983. It, therefore, appears that the plaintiffs-appellant were out of possession since 18.1.1970 as per his admission and as such the suit of the plaintiffs-appellant is equally not tenable being barred by law of limitation having been filed after the statutory period of 12 years. The learned appellate Court below has held on discussion of the evidence on the record that the defendant-respondent has been coming in continuous possession over the suit land since before 1940 but has inadvertently recorded a finding that defendant has perfected his title over the suit land by adverse possession. The learned appellate Court below has held on discussion of the evidence on the record that the defendant-respondent has been coming in continuous possession over the suit land since before 1940 but has inadvertently recorded a finding that defendant has perfected his title over the suit land by adverse possession. There was no need to record such a finding in view of the fact that Chotka Makri Uraon and, thereafter, his descendants including the defendant being the agnates of Jhari Urain and Gholha Uraon has succeeded to the entire land of Khata No. 21 and they had right title and interest therein as well as possession and question of perfecting their right title and interest by adverse possession does not arise in the given facts of this case. Therefore, principle of adverse possession has no application at all in this case. Even if the finding recorded by the appellate Court below regarding perfecting title of the defendant by adverse possession is omitted or excluded then also the only reasonable conclusion is that the defendand had right title and interest in the suit property being the nearest agnate of other two recorded tenants to the exclusion of Sahbani Uraon aforesaid and the defendant and prior to him his predecessor-in- interest were in possession over the suit land. Therefore, the learned appellate Court below his rightly dismissed the appeal on this score. 15. To sum up, Chunni Urain the father of the plaintiffs-appellate was not adopted as Ghardamad by Jhari Urain, and Sahbani Urain stands excluded as heir of Jhari Urain and the entire property of Khata No. 21 was succeeded by Chotka- Makri Uraon on the demise of Jhari Urain and Gholha Uraon and since then Chotka Makri Uraon and, thereafter, his descendants are in possession over the entire land of Khata No. 21. It is needless to say that the finding of question of possession in favour of defendant by the appellate Court below is not a finding of law and if it is based on evidence on the record it is not open in the second appeal to interfere therewith. Therefore, the ratios of the case of Deo Krishna Singh and others (supra) and Thiagaranjan and others (supra) supports the contention of the learned counsel for the respondent. Therefore, the ratios of the case of Deo Krishna Singh and others (supra) and Thiagaranjan and others (supra) supports the contention of the learned counsel for the respondent. Here in this case both the Courts belwow have concurrently held regarding the title and possession of the defendant over the suit land and they have not found the plaintiffs-appellant in possession over the suit land since 1940. The concurrent finding of fact however erroneous cannot be disturbed by this Court in exercise of the powers under Section 100 of the Code of Civil Procedure. Both the Court below have drawn conclusions as per the evidence on the record and their conclusions or findings regarding title and possession of the defendant cannot be said contrary to mandatory provisions of law applicable or its settled position on the basis of pronouncement made by the Apex Court. It also cannot be said that their finding in respect thereof is based upon inadmissible evidence or arrived at without evidence. It cannot also be said that the finding of both the Courts below in respect thereof is based on inadmissible evidence on the record or is based on a misleading of the evidence of suffers from any legal infirmity which materially prejudices the case of one of the parties or is perverse. Therefore, the learned appellate Court below has rightly dismissed the appeal of the plaintiffs- appellant. 16. There is no merit in the appeal and it fails. The cross objection is hereby allowed. The appeal is dismissed. However, there shall be no order as to costs in the facts and circumstances of this case.