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2010 DIGILAW 1007 (JHR)

Raimat Marandi v. Mangal Murmu

2010-11-18

N.N.TIWARI

body2010
Order This is defendants' second appeal against the judgment of concurrence. 2. The plaintiffs had filed suit, praying relief for declaration of their right, title in the suit land and recovery of possession. 3. Plaintiffs' case, briefly stated, is that the parties are governed by Santhal Customary Law. According to the custom prevalent in the community, a Santhal, who has no son can bring his son-in-law to live with his daughter as Gharjamai. A Gharjamai is treated at par with an adopted son and is entitled to inherit the property of his father-in-law. It has been further stated by the plaintiff that land of Jamabandi No. 14 of Village-Tola Sherpur No. 148 under Maheshpur Police Station, District-Pakur, which is the suit land, was recorded in the name of Raghunath Besra in the last survey record of right. Raghunath Besra had no son. He had one daughter, named Dhuni Besra. He had married Dhuni with one Karu Murmu and brought to live him as Gharjamai. His daughter and son-in-law (Karu Murmu) started living with him after their marriage. After sometime, one son, namely, Tunch Besra was born to said Raghunath Besra. Raghunath died, leaving behind his son- Tunch, daughter-Dhuni Besra and Karu Murmu-his Gharjamai. According to Santhal custom, Tunch Besra and Dhuni Besra alongwith Gharjamai-Karu Murmu jointly inherited the property of Raghunath Besra. Original plaintiff-Dula Murmu was the son of Karu Murmu. After the death of Dhuni and Karu, the original plaintiff jointly inherited the property with Tunch Besra and remained in continuous joint possession till the death of Tunch Besra. Tunch Besra had no son and he had all along treated the plaintiff as his own son. Tunch died leaving behind his second wife Bangi Hembrom, After the death of Tunch Besra, differences cropped up between the plaintiffs and Bangi Hembrom. However, Bangi Hembrom was all along with the plaintiffs and she was being maintained out of the usufruct of the suit land. Much after the death of Tunch, the defendants started laying false claim of inheritance as agnates. The dispute led to a proceeding under Section 144 Cr.P.C. The said proceeding was, subsequently, converted into a proceeding under Section 145 Cr.P.C. The proceeding under Section 145 Cr.P.C. was decided in favour of the defendants, declaring their possession and preventing the plaintiffs from disturbing possession of the defendants. The dispute led to a proceeding under Section 144 Cr.P.C. The said proceeding was, subsequently, converted into a proceeding under Section 145 Cr.P.C. The proceeding under Section 145 Cr.P.C. was decided in favour of the defendants, declaring their possession and preventing the plaintiffs from disturbing possession of the defendants. The plaintiffs, thereafter, filed Title Suit No. 11 of 1991 in the Court of learned Subordinate Judge-II; Pakur for the relief as aforementioned. 4, The suit was contested by the defendants, stating, inter alia, that the daughter of Raghunath, namely, Dhuni Besra was not married with Karu Murmu in 'Gharjamai Form' and Karu Murmu had not acquired any right of inheritance in the property of Raghunath Besra. After marriage of Dhuni Besra, a son, namely, Tunch Besra was born to Raghunath Besra. Tunch died sonless and without any direct heir and according to the custom, Marang Besra, father of Sakal Besra, being the agnate of the recorded tenant-Raghunath Besra, came in possession of the land of Raghunath Besra. The defendants were all along in possession, as the real successors, being the agnates of Raghunath Besra. The plaintiffs' claim of inheritance through Karu Murmu is wholly false and frivolous. The Executive Magistrate considered the facts and law and decided the proceeding under Section 145 Cr.P.C. against the plaintiffs. The defendants were declared to be in possession of the suit land. The plaintiffs' case is frivolous and is liable to be dismissed. 5. Both the parties led evidences-oral and documentary. 6. Learned Trial Court framed as many as nine issues. 7. After thorough discussion and appreciation of the facts and evidences on record, learned Trial Court decided almost all the important issues in favour of the plaintiffs and held that the plaintiffs have got valid right, title over the suit land. The plaintiffs were also in peaceful possession of the suit land before erroneous declaration of the possession of the defendants by learned Executive Magistrate in the proceeding under Section 145 Cr.P.C. Learned Trial Court decreed the plaintiffs' suit and the defendants were directed to deliver vacant possession of the suit land to the plaintiffs. 8. The defendants, thereafter, preferred appeal before the District Judge, Pakur, being Title Appeal No. 4 of 2005. 9. Learned District Judge heard the parties and independently discussed the evidences of the parties in detail. 8. The defendants, thereafter, preferred appeal before the District Judge, Pakur, being Title Appeal No. 4 of 2005. 9. Learned District Judge heard the parties and independently discussed the evidences of the parties in detail. After thorough appraisal of the evidences on record, learned Lower Appellate Court concurred with the finding of facts arrived at by the learned Trial Court and upheld the judgment and decree of the learned Trial Court, dismissing the defendants' appeal. 10. In the instant second appeal, the impugned judgments of the learned courts below have been assailed mainly on two grounds; firstly that the learned Trial Court as well as learned Lower Appellate Court have not properly appreciated the evidences on record and though there are evidences of the circumstances contrary to the claim of marriage of Dhuni Besra in Gharjamai Form, learned court below erroneously believed the plaintiffs' version and held that Dhuni Besra was married with Karu Murmu in Gharjamai Form. While coming to the said findings, learned courts below ignored a piece of evidence that Karu Murmu had been said to be in possession about 10 acres of his paternal land. Secondly, learned courts below failed to properly appreciate that Raghunath Besra had one son- Tunch Besra and in presence of his son, there was no occasion of marrying his daughter-Dhuni with Karu and keeping him Gharjamai. 11. Mr. J.P. Jha, learned Senior Counsel, pressing his points, submitted that in presence of the son-Tunch Besra and a piece of evidence on record regarding possession of paternal land by Karu Murmu, learned courts below ought to have rejected the plaintiffs' claim of title through Karu Murmu. Learned counsel submitted that although there is custom in Santhal community that a person, who has no son, can marry his daughter in Gharjamai Form and keep his son-in-law as Gharjamai in his own house as a son and in that case, Gharjamai has also right of inheritance of the property of his father-in-law, in this case, there is no question of adoption of Gharjamai when Raghunath Besra had own son, namely, Tunch Besra. Learned counsel further submitted that P.W. 9 has specifically stated that Karu Murmu had been in possession of 10 acres of land of his father's village. The aforesaid circumstances are strong and go to the root of the claim of the plaintiffs. Learned counsel further submitted that P.W. 9 has specifically stated that Karu Murmu had been in possession of 10 acres of land of his father's village. The aforesaid circumstances are strong and go to the root of the claim of the plaintiffs. Learned courts below should have properly appreciated the said piece of evidence and material on record' and should have dismissed the plaintiffs' claim. 12. Mr. Sharhim Akhtar, learned counsel, appearing on behalf of the respondents, on the other hand, supported the impugned judgments and decrees of the courts below and submitted that two courts of facts have found that Dhuni Besra, daughter of Raghunath Besra was married with Karu Murmu in Gharjamai Form and that Karu Murmu, being the Gharjamai, had inherited the property of Raghunath Besra. Learned courts below have also held that Karu Murmu and thereafter the plaintiffs have been all along in peaceful possession of the land of Raghunath Besra before the declaration of the Executive Magistrate in the proceeding under Section 145 Cr.P.C. in favour of the defendants. The said findings of facts have been recorded on thorough appreciation and scrutiny of facts, evidences and materials on record and the said findings of facts by two courts are binding in the second appeal. Learned counsel further submitted that it has been held on the basis of the facts and evidences on record that till the time of marriage of Dhuni Besra, Raghunath Besra had no son. Tunch Besra was born after the marriage of Dhuni Besra with Karu Murmu. In Santhal custom, a son who is born after the marriage of his daughter in Gharjamai Form will be a co-sharer and the son and the Gharjamai will get equal share. Learned counsel further submitted that the judgments and decrees of the courts below are based on legal evidence and there is no infirmity and illegality in the same. 13. I have heard learned counsel for the parties and perused the judgments and decrees of the learned courts below. Learned Trial Court as well as learned Lower Appellate Court have concurrently held that the daughter of Raghunath Besra, namely, Dhuni Besra was married with Karu Murmu in Gharjamai Form. 13. I have heard learned counsel for the parties and perused the judgments and decrees of the learned courts below. Learned Trial Court as well as learned Lower Appellate Court have concurrently held that the daughter of Raghunath Besra, namely, Dhuni Besra was married with Karu Murmu in Gharjamai Form. Original plaintiff-Dula was the son of Karu Murmu and after the death of Tunch Besra and Dhuni Besra, the said plaintiff inherited the property of Raghunath Besra and he has got right, title over the same as per the customary law of Santhals learned courts below have further held that before erroneous declaration of possession of the defendants by learned Executive Magistrate in the proceeding under Section 145 Cr.P.C., the plaintiff~ were all along in peaceful possession of the suit land. 14. On close perusal of the judgments of learned courts below, I find that the said findings are based on proper appreciation of oral and documentary evidences on record. Possession of Karu Murmu on the land of his father's village and birth of Tunch Besra after the marriage of Dhuni Besra with Karu Murmu in Gharjamai Form were also considered by both the courts below learned courts below have recorded the reasons for not basing their findings on those evidences in the face of other cogent oral and documentary evidences on record. 15. I, therefore, find no error in the findings of the learned courts below, giving rise to any substantial question of law to be framed and decided in this second appeal. 16. This appeal is, accordingly, dismissed.