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2007 DIGILAW 400 (JHR)

Chamin Orain v. Sukra Oraon

2007-05-07

M.Y.EQBAL

body2007
Judgment M. Y. Eqbal, J.- This appeal by defendant no.1-appellant is against the judgment of affirmance. Plaintiff's suit for declaration of title and confirmation of possession over the suit property has been decreed by the Munsif, Gumla in terms of judgment and decree dated 6th March, 1986 in Title Suit No. 26/83 and the same was affirmed by the 1st Addl. District Judge, Gumla in Title Appeal No. 16/86. 2. The facts of the case lie in a narrow compass: One Fagu Oraon was the common ancestor of the parties. He had four sons, Jitia, Ghusu, Jitu and Sukra, Ghusu died issueless. Jitia had no male issue. Defendant No.1, Chamin Orain is the daughter of Jitia from the first wife, Bhutni. Jitu had four sons, Ghashi, Bana, Chanda and Birsai. Chanda died issueless. Ghashi Birsai and Bana are defendant nos. 2, 3 and 4. Sukra, son of Fagu had one son, Timru. Timru has two sons, Sukra who is the plaintiff and Ghusu who is the proforma defendant no. 5. 3. Plaintiffs case is that Jitu son of Fagu had no male issue whereas Sukra died leaving behind his minor son, Timru. After the death of Sukra his wife re-married and, thereafter, Timru became orphan having no one to look after him. Timru was, therefore, adopted by Jitia who had no male issue. The suit property was acquired by Jitia. After his death, Timru being the only adopted son, inherited the suit property. After Timru died, both the plaintiff and defendant no. 1 have been coming in possession of the suit property. 4. The case of defendant no.1, on the other hand, is that Timru was not adopted by Jitia, rather, after the death of Jitia his widow, Bhutni, by a registered deed of gift dated 11 .11 .1966, gifted the suit land to her son-in-law, Sepia (husband of Chamin). Sepla was also adopted as Ghardamad. 5. The learned trial court, after considering the entire evidence, both oral and documentary, recorded a finding that Timru was adopted by Jitia and he being the adopted son, inherited the suit land and after Timru the plaintiff and defendant no. 5 inherited the suit land and exercised all rights, title, interest and possession at all material time. For better appreciation paragraphs 15, 16 and 18 of the trial court judgment is worth to be quoted which reads as under: "15. 5 inherited the suit land and exercised all rights, title, interest and possession at all material time. For better appreciation paragraphs 15, 16 and 18 of the trial court judgment is worth to be quoted which reads as under: "15. Issue No. VI: Since the plaintiff is claiming the suit lands through his deceased father, Timru Oraon who was allegedly adopted by the deceased, Jitia the owner and proprietor of the lands in question, therefore, this issue is most important for the purpose of deciding the case and accordingly it has been taken up first. The statements made in paras 2, 3, 4, 5 and 6 stand admitted as per written statement filed on behalf of the contesting defendant no. 1 and the other non-contesting defendant. So the relationship between the parties stands proved. The plaintiff is none else but belonging to the same family and the cousin grandson of Jitia Oraon. According to the custom of the oraons community only the agnate can be adopted with the consent of other Bhaiyads and the village punches. 16. The plaintiff has examined as many as 13 witnesses in support of his case. PW 1 Emanual Tirkey is a formal witness, PW 2, Telanga Bhagat, PW 3, Samel Oraon, PW 4, Patua Oraon, PW 5, Bhiju Oraon, PW 6, Joseph PW 7, Dharma Mahli, PW 8, Suba Mahto, PW 9, Sohra Oraon, PW 10 Lukas Oraon, PW 11, Gandur Oraon, . PW 12, Budhu Oraon and PW 13, Sukra Oraon, the plaintiff himself have given a stereo type statement that Jitia Oraon has no male issue rather he had only two daughters, namely, Chamin Orain, defendant no. 1 and Domani Orain from two wives namely, Madari Orain and Butani Orain. They have also said that both daughters were married by him and after the marriage both daughters went to their respective sasural. They have further said that Sukra Oraon, the brother of Jitia Oraon died in the childhood of Timru Oraon, father of the plaintiff, Sukra Oraon. They have further said that Timru Oraon was adopted as son by Jitia Oraon and he was brought up by the said Jitia Oraon and both persons started to live together like father and son. They have also said that after the death of Jitia Oraon and Timru the plaintiff and the proforma defendant no. 5 have been cultivating the lands of Jitia Oraon. They have also said that after the death of Jitia Oraon and Timru the plaintiff and the proforma defendant no. 5 have been cultivating the lands of Jitia Oraon. In the cross-examination PW 1 has said that the plaintiff and the proforma defendant no. 5 lives in the house of Timru and they cultivate the lands of Timru Oraon. This statement is a truthful and natural statement because all the persons plaintiff and the defendants come from the same family and they had no separate house so they are naturally living in the same house. He has further said at the time of adoption Timru was 6 or 7 years old. PW 3 has also said in his cross examination that at the time of adoption Timru was aged about 5 years old. PW 4 has said that Jitia Oraon had not adopted any ghardamad. PW 5 has also said that Jitia Oraon had not adopted any ghardamad. PWs 6 and 7 have not been cross-examined on the point of adoption. PW 9 has also not been cross-examined on the point of adoption. PW 10 is the ex-Mukhia of the Asani Newatoli Panchayat and he has also not been challenged about his statement regarding the living of Jitia Oraon and Timru Oraon in one house. PW 11 has said that Timru was a child at the time of the death of his father, Sukra Oraon and when he was adopted by Jitia Oraon. PW 12 has also said that Timru was a child when his father died. PW 13, the plaintiff has also corroborated, his statement in the cross-examination as made out in his examination-in-chief. 18. Issue No. VII: The definite case of the contesting defendant is that Sepia Oraon the deceased husband of the contesting defendant, Chamin Orain was adopted as ghardamad by Jitia Oraon , hence there was no occasion to adopt Timru Oraon as son. In this context the defendant has also examined 7 witnesses. DW 1, Aswani Kumar Sinha, DW 2, Gaya Dutta Pandey and DW 7, Deocharan Gope are the formal witnesses. The recitals of the deed of gift Ext. A also shows that Sepia Oraon was adopted as ghardamad in the lifetime of Jitia Oraon and his marriage with his daughter, namely, Ghamin Oraon, the contesting defendant, was solemnized in the life-time of the said Jitia Oraon. The recitals of the deed of gift Ext. A also shows that Sepia Oraon was adopted as ghardamad in the lifetime of Jitia Oraon and his marriage with his daughter, namely, Ghamin Oraon, the contesting defendant, was solemnized in the life-time of the said Jitia Oraon. DW 3, Sepia Oraon, DW 4, Konia Oraon, DW 5, Lohra Oraon, DW 6, Ghami Oraon the defendant herself have said that about 30 years ago Butni Oraon and Madani Oraon both widows of Jitia Oraon, Lundri, Lohra and Luthra went to village pasanga in the house of Gansa Oraon and Butni Orain gave a proposal that she had no son so she wants his son as ghardamad. They have further said that the proposal was accepted by Gansa Oraon and his wife Jitia Oraon and accordingly Sepia Oraon was brought to Asani Nawatoli in the house of Bunti Orain and later on he was married with the daughter of said Butni Orain and started to live like ghardamad. Thus evidences adduced on this point is highly contradictory to the statement as made out in the written statement because W.S. shows that Sepia Oraon was married and adopted as ghardamad during the lifetime of Jitia Oraon but the evidence has come that he was married and adopted after the death of Jitia Oraon. Thus the evidence gives a death blow to the case of the defendant as made out in the W.S. regarding the adoption of Sepia Oraon as ghardamad. DWs have been suggested by the plaintiff the widows have no power to adopt ghardamad but the authority Mundas and their country written by S.C. Roy shows that the widow have right to adopt a ghardamad. But there is further evidence that no family members of Butni Orain and Domain Orain went to bring Sepia Oraon for the purpose of keeping him as ghardamad and as such there was no consent of the family members. Moreover, the story of adoption as stated in the W.S. does not find support from the evidence rather it contradicts as stated above and this goes to show that actually Sepia Oraon was not adopted as ghardamad, either by Jitia or his widow Butni. All the DWs. including the defendant no. Moreover, the story of adoption as stated in the W.S. does not find support from the evidence rather it contradicts as stated above and this goes to show that actually Sepia Oraon was not adopted as ghardamad, either by Jitia or his widow Butni. All the DWs. including the defendant no. 1 have admitted in cross-examination that Sepla Oraon died in the Gumla hospital and his dead body was taken to his home village Pasanga where he was buried and his last rite was performed at that very place. This fact is also an important fact regarding the adoption of Sepia Oraon. Had he been really adopted as ghardamad either by Jitia or his widow Butni Orain and living in the house of Jitia at village Asani Nawatoli then there was no question of taking his dead body to his village home Pasanga and performing his last rite at that very place. This further goes to show that the story of adoption of Sepia as ghardamad is imaginary for the purpose of ulterior motive. In fact he was never adopted as such nor living at village home. In view of the aforesaid discussions I hold that Sepia Oraon was not adopted as ghardamad either by Jitia Oraon or widow, Butni Orain and accordingly this issue is decided in favour of the plaintiff and against the defendant.” 6. Defendant no.1 who is the appellant, being aggrieved by the said judgment and decree preferred appeal before the District Judge, Gumla being Title Appeal No. 16/86. The appellate court, after re-appreciation of the entire evidence and after hearing the parties, affirmed the finding recorded by the trial court regarding adoption of Timru by Jitia. Both the courts below have also recorded a finding that the widow of Jitia, namely, Bhutni, had no right to gift the suit land in favour of her son-in-law. According to customary law a tribal widow is not entitled to inherit the property and the same shall be inherited by the agnates. 7. The very important point which both the courts below have also taken into consideration is that except defendant no.1, Chamin, all the other co-sharers, namely, the grandsons of Fagu who are defendant nos. 2, 3 and 4, supported the case of the plaintiff about adoption of Timru by Jitia and the plaintiff's possession over the suit land at all material time. 2, 3 and 4, supported the case of the plaintiff about adoption of Timru by Jitia and the plaintiff's possession over the suit land at all material time. The village Punch who was examined as a witness, has also accepted the adoption of Timru by Jitia. In this way both the courts below have recorded a concurrent finding of fact with regard to adoption and also with regard to continuous possession of the plaintiff and defendant no. 1 over the suit land. 8. In the aforesaid premises I do not find any reason to interfere with the concurrent findings of fact arrived at by both the courts below. Moreover, when the widow had no interest in the suit land, any transfer made by her by way of gift does not confer any right, title and interest in favour of defendant no.1. 9. For the aforesaid reason, I do not find any merit in this appeal which is accordingly, dismissed.