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2004 DIGILAW 759 (JHR)

Jema Orain v. Mansai Kujur @ Marsel Oraon

2004-07-29

N.N.TIWARI

body2004
ORDER Narendra Nath Tiwari, J. 1. This is the defendants second appeal against the judgment and decree of affirmance dated 30.8.2002 passed in Title Appeal No. 53/95 by Additional District and Sessions Judge, Fast Track Court, Gumla upholding the judgment and decree dated 28.9.1995 passed in Title Suit No. 25/93 by the Munsif Gumla. The plaintiff-respondents filed the said suit praying relief, inter alia,, for declaration that the order passed by the ASO, Ranchi Camp, Gumla passed in Revision Case No. 11/91 dated 8.4.1993 is illegal and infructuous and for declaration of his right and title over the suit land and also for possession and alternatively for recovery of possession. The plaintiffs case was that the suit land of Khata No. 129 of village Kating, P.S. Chainpur, District Gumla was recorded in the name of late Futkal Sakra Oraon in re visional survey records. The said receded tenant had no male issue. He died leaving behind five daughters namely, Martha, Soloney, Megledlina, Margrete and Bernadate. According to the plaintiff, after the death of Futkal Sukra Oraon, Most Mariam had brought one Marsel Oraon from the village Pundri, District Gumla for adopting him and for that purpose she executed a deed of Bal Posh in the year 1947. Marsel Oraon against the tradition and decency of the family compelled Martha, daughter of Most. Mariyam, to live with him without marriage which caused annoyance to Most. Mariyam and, therefore, she got the said Bal Posh deed cancelled by a registered deed of Cancellation No. 328 dated 22.8.1950. Thereafter, Marsel Oraon left the house of Most, Mariyam Orain. Most. Mariyam then brought the plaintiff as prospective ghardamad for her daughter Bernadit Orain, according to the custom of the family and with the consent of the co-villagers. The plaintiff and his wife Bernadit Orain were duly adopted and have been living in the house of Most. Mariyam. After the death of Mariyam, Bernadit Orain applied for mutation of her name in respect of the suit land which was allowed by order dated 1.2.1957 and since thereafter the plaintiff has been paying rent to the State of Bihar (now Jharkhand) regularly. It was further stated that the plaintiff and his wife looked after and served Most. Mariyam during her life time and after her death performed her last rites according to the Oraon custom. It was further stated that the plaintiff and his wife looked after and served Most. Mariyam during her life time and after her death performed her last rites according to the Oraon custom. The plaintiff was subsequently appointed in Government service and in that connection he has been living elsewhere, and got the land cultivated by the adhbataidar. Taking undue advantage of his absence the defendant got her name entered in the recent survey record without any notice to the plaintiff. The plaintiff filed revision against the said entry which was registered as Revision Case No. 11/91 was ultimately decided erroneously in favour of defendant No. 1 by the ASO, Ranchi Camp Gumla by order dated 8.4.1993. It was stated that the defendant No. 1 Jema Orain was born out of the illegal relationship of Martha Grain and Marsel Oraon and she has absolutely got no right to get the property recorded in khatiya. The defendant No. 1 never came in possession over the suit land and in either way the order dated 8.4.1993 passed by the ASO is not binding on the plaintiff. However, as the said order is against his interest, he filed the said suit. 2. The defendant No. 1 contested the suit by filing a written statement. According to her, the suit was barred under various provisions of law and the plaintiff is not entitled to any relief. Although she admitted the custom of the Oraon caste, yet the other facts pleaded by the plaintiff were denied. According to the defendant, Futkal Sukra Oraon had brought Marsel Oraon to adopt him as ghardamad for his elder daughter Martha. Subsequently Martha was married to Marsel and after their marriage both of then were living in the house of Futkal Sukra and were cultivating the said land. After the death of Futkal Sukra Oraon the said Marsel and Martha inherited the suit property and Marsel got his name mutated in the office of the ex-landlord and has been paying rent. According to her, the plaintiff was never adopted as ghardamad for Bernadate and the plaintiff never lived in the house of Futkal Sukra Oraon. After the death of Futkal Sukra Oraon the said Marsel and Martha inherited the suit property and Marsel got his name mutated in the office of the ex-landlord and has been paying rent. According to her, the plaintiff was never adopted as ghardamad for Bernadate and the plaintiff never lived in the house of Futkal Sukra Oraon. Since Marsel had no male issue and the defendant No. 1 is the only daughter who inherited the suit property as an absolute owner thereof and her name has rightly been entered into the recent survey records, the ASO rightly passed the order in Revision Case No. 11/91. The said order is legal and binding on the plaintiff and the plaintiff is not entitled to any relief. 3. Both the parties adduced evidences, documentary as well as oral, in order to prove their respective claims: The trial Court framed several issues. Issue No. 6 was regarding the said adoption of the plaintiff as ghardamad by Most. Mariyam and regarding his right, title and interest over the suit land. Issue No. 7 was as to whether the order passed by the ASO, Ranchi, Camp Gumla in Revision Case No. 11/91 dated 8.4.1993 was binding upon the plaintiff and issue No. 8 was as to whether the defendant No. 1 has got right and title over the suit land as alleged in the written statement. After thorough discussion and consideration of all the documentary and oral evidences and other materials on record, the trial Court came to the finding that the plaintiff successfully proved his claim and held that Marsel Oraon was not ghardamad of recorded tenant and he did not inherit the suit property and, accordingly, the defendant No. 1 has got no right of interest, and, on the other hand, the plaintiff has got right, title and possession over the suit land and that the order passed by the ASO, Ranchi in Revision Case No. 11/91 was not binding on the plaintiff. The other issues were either not pressed or decided in favour of the plaintiff and the suit was decreed. 4. Aggrieved by the said judgment and decree, the defendant No. 1 filed regular appeal in the Court of the District Judge, Gumla being Title Appeal No. 53/ 95. The said appeal was ultimately heard and decided by the Additional District Judge, Fast Track Court. Gumla. 4. Aggrieved by the said judgment and decree, the defendant No. 1 filed regular appeal in the Court of the District Judge, Gumla being Title Appeal No. 53/ 95. The said appeal was ultimately heard and decided by the Additional District Judge, Fast Track Court. Gumla. The lower appellate Court after hearing the parties and thoroughly considering the documentary as well as the oral evidences concurred with the findings of the trial Court and dismissed the appeal of the defendant No. 1 upholding that the plaintiff was adopted as ghardamad and he has succeeded to the suit land and the plaintiff has got right, title and possession over the suit land. It was further held that the decision in Revision Case No. 11/91 dated 8.4.1993 is not binding upon the plaintiff and that the defendant has got no right, title and possession over the suit land. The appeal was thus dismissed by the impugned judgment and decree. 5. Mr. S.N. Das, learned counsel appearing on behalf of the appellant, submitted that both the Courts below have committed serious errors of law in recording their findings against the customary law applicable in the Oraon caste. Mr. Das submitted that the plaintiff himself has admitted that he is in service elsewhere and not living in the village. According to him, a ghardamad is meant for looking after the cultivation of lands of his father-in-law and he has to reside in the village. Mr. Das, therefore, contended that on the said admission of the plaintiff that he has been living elsewhere in connection with his service, it can not be held that he is a ghardamad and, therefore, he is entitled to inherit the suit land. 6. Having heard the learned counsel for the parties and perused the judgment and decree of the Court below, I find that the claim of the plaintiff has been decreed by both the Courts below on thorough consideration and appraisal of evidences on record. Both the Courts have concurrently found the fact that the plaintiff was adopted as ghardamad and he has been coming in cultivating possession of the suit land. The Courts below also held that he has been living in the house of his-in-laws. In my opinion, living in the house does not mean that a person will actually and continuously reside therein for 24 hours a day and 365 days a year. The Courts below also held that he has been living in the house of his-in-laws. In my opinion, living in the house does not mean that a person will actually and continuously reside therein for 24 hours a day and 365 days a year. Conscious exercise of the right of ownership and possession over the property in my opinion also amounts to living in the property in that context. According to the Chambers Twentieth Century Dictionary "Live" inter alia means "to have, to last, to enjoy life, to direct ones course of life, subsist, get a living........Thus neither the dictionary meaning of Living nor the legal principle supports the contention of Mr. Das. Both the Courts below have held on the basis of the evidences that the plaintiff has been able to prove that he has been continuing in possession of the suit land and exercising his right as ghardamad. The said findings, being the findings of the facts, concurrently found in favour of the plaintiff. I find no error in the said findings of the Courts below attracting any substantial question of law to be decided by this Court. This second appeal is, accordingly, dismissed.