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2004 DIGILAW 849 (JHR)

Karan Murmu v. Commissioner

2004-08-20

HARI SHANKAR PRASAD

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JUDGMENT Hari Shankar Prasad, J. 1. This writ petition has been filed for quashing of Annexure-1 by which appellate authority dismissed the appeal of the writ petitioner and also for quashing of Annexure-2 by which the Settlement Officer set aside the order of Assistant Settlement Officer. 2. The short questions to be answered in this writ petition are, (1) whether sisters son can inherit a joint landed property of maternal uncle. (2) whether a widow Santhal lady can create gharjamai even without the consent of the next heir of her deceased husband, (3) whether a daughter can succeed the property under the Santhal custom, (4) whether the story of gharjamai can be accepted even without any valid and legal document and (5) whether decision under Section 145, Cr PC with regard to the possession is binding on civil Court in determining the question of title? 3. The case briefly stated is that the plaintiff-petitioner filed a Title Suit No. 26 of 1969 before the Subordinate Judge, Sahibganj for a declaration to hold the property described in Schedule-A of the plaint, which petitioner claimed to belong to him, as he is the legal heir of the recorded tenant of the property situated in Mouza Bishanpur in jamabadni No. 2, an area of 22 bighas, 5 katha and 5 dhurs. The land in question was earlier recorded in the name of Anpa Tuddu and Karan Tuddu. Both the brothers had only one sister, namely Sakro Tuddu and both the brothers died issueless leaving behind their sister, namely, Sakro Tuddu as legal heir of the property. Sakro Tuddu had two sons, namely, Sham Murmu and Karan Murmu. Sakro Tuddu inherited the property left by her deceased brothers, as both the brothers had died issuless. After the death of Sakro Tuddu, her two sons inherited the property but Sham. Tuddu also died issueless and Karan Tuddu had two sons, namely, Sangram Murmu and Mangra Murmu, Sangram Murmu had four sons including the petitioner, out of whom one is major and three are minors. The plaintiff also sought confirmation of the possession over the suit property apart from the other reliefs. 4. Respondent Nos. 4 and 5 appeared and filed a written statement and claimed that respondent No. 4 has been given land in marriage in gharjamai form. The plaintiff also sought confirmation of the possession over the suit property apart from the other reliefs. 4. Respondent Nos. 4 and 5 appeared and filed a written statement and claimed that respondent No. 4 has been given land in marriage in gharjamai form. After notification of the settlement proceeding in Santhal Pargana, the Title Suit No. 26 of 1969 was transferred to the Court of the Settlement Officer, Santhal Pargana for its adjudication, which was numbered as Title Suit No. 56 of 1969 and the suit was decided by the Assistant Settlement Officer, Dumka on 11.1.1980 in favour of plaintiff-petitioner. The an appeal was preferred before the Settlement Officer, which was numbered as Title Appeal No. 2/80 and the Settlement Officer set aside the order passed in Title Suit No. 56/69. Thereafter the plaintiff-petitioner preferred Title Appeal No. 55/85 before the Commissioner, Santhal Pargana at Dumka but the Commissioner also dismissed the appeal on 23.1.1990 and thereafter, this petitioner has moved this application before this Court. 5. The learned counsel appearing for the petitioner, submitted that the, Assistant Settlement Officer, who decided the Title Suit No. 56/69, has framed five issues for determination in the suit, which are as follows :-- 1. Whether plaintiff is nephew of khatiyani raiyat? 2. Whether maternal uncle has got right in maternal uncles property or nor? 3. Whether, plaintiff is in possession over the land dispute or not? 4. Whether the defendant Easter Tuddu is an adopted daughter or not and whether such adoption is permissible under Santhal custom or not? 5. Whether defendant Easter Tuddu was married in gharjamai form or not? 6. After appreciating the evidence, both oral and documentary produced on behalf of both the sides, passed order in favour of the plaintiff-petitioner but both the appellate Courts of Settlement Officer and Commissioner committed an error of law in no appreciating the oral and documentary evidence and also in not appreciating the legal position of law in this respect, because a widow cannot create a gharjamai and in the instant case Karan Tuddu, at the time of his death, asked his wife, Bhavi Murmu to adopt Ester Tuddu as daughter and marry her in gharjamai from. The learned counsel for the petitioner submits that so far as position of law in Santhal Pargana is concerned, a widow cannot create a gharjamai and Bhavi Murmu was admittedly a widow and, therefore, she could not create a gharjamai by marrying Ester Tuddu with Kisan Marandi. In this connection learned counsel placed reliance upon Santhal Pargana Settlement Regulation, 1982 and 1987 PLJR 939. 7. In the instant case, since Karan Murmu died, as per customary Santhal Pargana Law, his nephew will inherit his property and not his wife, because under customary law of Santhal Pargana, no female inherits the property and further a widow cannot create a gharjamai and admittedly Bhavi Murmu had adopted Ester Tuddu after the death of Karan Murmu and soon after the death of Karan Murmu his entire property was inherited by his nephew. Since a widow cannot create a gharjamai, as such, even after marriage of Ester Tuddu with Kisan Marandi, Kisan Marandi could not succeed to the property of Karan Murmu because Bhavi Murmu being a widow was not in a position to make a gharjamai and this aspect of legal position has not been considered by both the appellate Courts and thereby they arrived at a wrong conclusion, whereas the Assistant Settlement Officer has given a very correct finding. Another point, that has been raised by the learned counsel for the petitioner, is that the appellate Courts below, have come to a wrong finding that proceeding under Section 145, Cr PC was decided in favour of respondent and possession declared on the basis of findings under Section 145, Cr PC is a finding on title and is binding on civil Courts but according to the learned counsel for the petitioner, a finding in a proceeding under Section 145, Cr PC decides only possession of the parties and it is not a finding on title of the parties and for the finding of title of respective parties, civil Court is the competent Court and finding in a proceeding under Section 145, Cr PC is not binding on civil Court. It may be a piece of evidence but it is not a finding on title. It may be a piece of evidence but it is not a finding on title. In this connection, reliance has been placed upon 2004 (1) SCC 438 , wherein it has been held that order passed in a proceeding under Section 145, Cr PC remains confined to the factum of possession of the property in dispute and order is temporary in nature and is subject to determination of right and title by a competent Court and as such, finding arrived at in a proceeding under Section 145, Cr PC cannot decide title of the parties concerned. 8. On the other hand, learned counsel appearing for the respondent, submitted that both the appellate Courts gave a concurrent finding in favour of the respondent and Bhavi Murmu and adopted Ester Tuddu and had married her with Kisan Marandi and created a gharjamai, who, for all practical purposes, after the marriage, became the son of his father-in-law and, therefore, this case is fit to be dismissed. 9. The Assistant Settlement Officer had framed five issues and after thoroughly discussing the evidence, both oral and documentary, has come to a finding that there is no proof of adoption of Ester Tuddu as daughter of Bhavi Murmu and further that in Santhal Pargana Law of Inheritance, a female does not inherit the property and also a widow cannot create a gharjamai and in the instant case what I found is that Bhavi Murmu did not succeed to the property of Karan Murmu and similarly she could not adopt Ester Tuddu as daughter and consequently she was not in a position to create a gharjamai. Further order passed in a proceeding under Section 145, Cr PC does not create right and title of the parties concerned but is a finding of possession only and is not binding on civil Court. 10. On the basis of discussions made above and after considering oral as well as documentary evidence and also after discussing the position of law, Annexures-1 and 2 are hereby quashed. However, there will be no order as to costs.