Research › Search › Judgment

Jharkhand High Court · body

2010 DIGILAW 595 (JHR)

Gini Kui v. Robinson Zurindal Dubraj Tieu

2010-05-13

N.N.TIWARI

body2010
Order This is plaintiffs' second appeal against the judgment and decree dated 21st May, 2005 passed in Title Appeal No. 1 of 2004. By the impugned judgment, the appeal filed by the defendants has been allowed and the judgment and decree of the Trial Court passed in favour of the plaintiffs has been set aside. 2. The plaintiffs filed Title Suit No. 1 of 2001 in the Court of Munsif at Chaibasa, praying therein for a decree of declaration of their right, title and interest over the suit property and for declaring that the record of right published in the year 1964 in respect of the suit land is wrong. The plaintiffs further prayed for a decree of confirmation of possession over the suit land and permanent injunction, restraining the Defendant Nos. 1 and 2 from going over the suit land and from interfering with the plaintiffs' possession. 3. Plaintif8fs' case was that their father-Birendra Tamsoy was an employee of TISCO. He used to live at Jamshedpur. Sukhlal Dubraj and Sikur Tubid-fathers of Defendant Nos. 1 and 2 were close friends of Birendra Tamsoy. In the year 1946, Birendra Tamsoy purchased a piece of land at Chaibasa, measuring 66 decimals, but in the name of Sukhlal Dubraj and Sikur Tubid not in his name. Nevertheless, Birendra Tamsoy was in actual possession of the land. He constructed a house over the same. Sukhlal Dubraj and Sikur Tubid avoided handing over the original deed of sale to Birendra Tamsoy on one pretext or the other, but ultimately they delivered the document to Birendra Tamsoy. The plaintiffs-Gini Kui and Nirmala Kui are the daughters of Birendra Tamsoy. He had no male issue. Birendra Tamsoy married his daughters with Sanga Biruli and Kolai Birua and got his sons-in-law in his house as 'GHAR DAMAD'. He gifted away the property and authority to his daughters, who are the plaintiffs. They have been paying current rent as well as holding tax to the concerned authority. Birendra Tamsoy died in the year 1972. Fathers of Defendant Nos. 1 and 2 also died. The plaintiffs' mother died in the year 1991. In the meanwhile, Defendant Nos. He gifted away the property and authority to his daughters, who are the plaintiffs. They have been paying current rent as well as holding tax to the concerned authority. Birendra Tamsoy died in the year 1972. Fathers of Defendant Nos. 1 and 2 also died. The plaintiffs' mother died in the year 1991. In the meanwhile, Defendant Nos. 1 and 2, taking advantage of the wrong entries of the names of their fathers in the record of rights, published in the year 1964, began making claim over the suit property and giving threats to dispossess the plaintiffs from the suit land. The plaintiffs claimed that they had also perfected their right and title over the suit land by their continuous occupation /possession by constructing Sulabh Sauchalaya and by paying municipal tax. They had also buried their parents in a portion of the suit land. 4. The defendants contested the claim of the plaintiffs. Defendants' case was that in the year 1946, fathers of Defendant Nos. 1 and 2 jointly purchased the suit property by virtue of registered sale deed dated 22nd March, 1946 for a valuable consideration. They came in possession of the suit land and got their names mutated in the revenue records without any objection from the plaintiffs' father. They constructed their house over the suit land. Subsequently, the plaintiffs' father, who was the friend, was allowed to reside in the house as a licensee. The remaining portion of the house was retained by the defendants for their residential use. The defendants denied the plaintiffs' claim of the alleged gift in respect of the suit property. Further case of the defendants was that in 'HO' community, the married daughters are not entitled to inherit the properties of their father. They, being the tribal, cannot transfer the property without prior permission of the Deputy Commissioner under the provisions of the Chhotanagpur Tenancy Act. The plaintiffs have no right, title over the suit land. When they stacked stone and other materials for the purpose of further construction in the suit land, the plaintiffs raised objection for the first time. The matter was reported to Village-Munda. The Panchayat was convened by Munda and in the Panchayati the claim of the defendants was upheld. The plaintiffs have no right, title over the suit land. When they stacked stone and other materials for the purpose of further construction in the suit land, the plaintiffs raised objection for the first time. The matter was reported to Village-Munda. The Panchayat was convened by Munda and in the Panchayati the claim of the defendants was upheld. According to the defendants, the original sale deed was all along in possession of the Defendant No.1, but once it was given to the husband of the Plaintiff No.2, who is an advocate. Defendants' further case was that after the death of the parents of the plaintiffs, they permitted for burial of the dead body in a portion of the land, as the father of the plaintiffs was a close friend of the fathers of Defendant Nos. 1 and 2, Besides the same, the defendants have taken other legal pleas challenging the maintainability of the plaintiffs' suit. 5. On the basis of the said pleadings, learned Trial Court framed as many as seven issues, which are as follows:- (i) Whether the suit is maintainable in its present form or for the reliefs claimed? (ii) Whether the plaintiffs have a valid cause of action or right to file this suit? (iii) Whether the suit is barred by limitation? (iv) Whether the suit property was purchased by the father of the plaintiffs and gifted to the plaintiffs and their husbands? (v) Whether entries in record of rights published in the year 1964 in respect of suit property is wrong and erroneous? (vi) Whether the plaintiffs are possessing the suit land since the year 1968 and they have perfected their right, title and interest by adverse possession? (vii) Whether the plaintiffs are entitled to the reliefs claimed, if so for what reliefs? 6. The parties added their evidencesoral and documentary. On conclusion of the trial, learned Additional Munsif decreed the suit in part. He decided Issue Nos. (iv) and (v) against the plaintiffs, holding that there are evidences that the suit property was purchased by the fathers of the defendants. The alleged gift in favour of the plaintiffs could not be established and that entries in record of right published in the year 1964 in favour of the defendants are valid and the same cannot be challenged. (iv) and (v) against the plaintiffs, holding that there are evidences that the suit property was purchased by the fathers of the defendants. The alleged gift in favour of the plaintiffs could not be established and that entries in record of right published in the year 1964 in favour of the defendants are valid and the same cannot be challenged. Learned Trial Court, however, decided the remaining issues in favour of the plaintiffs and against the defendants, holding that the plaintiffs have been able to establish their possession and they are still in possession, as such the suit is not barred by limitation. Learned Trial Court further held that the plaintiffs have got cause of action and the suit is maintainable. 7. Aggrieved by the said judgment and decree of the learned Trial Court, the defendants filed Title Appeal No. 1 of 2004 in the Court of the District Judge, Chaibasa. Learned lower appellate court heard the parties and considered the evidences and materials on record and came to the finding that the plaintiffs have not been able to prove their case, including their claim of acquisition of title by adverse possession. Learned lower appellate court found from the plaint that there was not even specific pleading regarding adverse possession of the plaintiffs. According to the plaintiffs, their late father Birendra Tamsoy had taken the plaintiffs' husbands in adoption in 1968 and accepted them as 'GHAR DAMAD' and at the same time, Birendra Tamsoy had gifted the suit land in favour of the plaintiffs and the plaintiffs alongwith their husbands have been in possession of the house, but neither deed of adoption nor deed of gift has been brought in evidence. Since the claim was of transfer of immovable properties, the oral evidence on the issue is of no avail. Learned lower appellate court further found that for transfer of land by a member of Scheduled Tribe, permission of the Deputy Commissioner is required under the provisions of the Chhotanagpur Tenancy Act. It has been asserted by the defendants that in 'HO' community to which the parties belong, married daughters are not entitled to inherit .their father's properties. There is no custom for taking sons-in-law in adoption. There is no cogent evidence on record to show occupation of the house since 1968. It has been asserted by the defendants that in 'HO' community to which the parties belong, married daughters are not entitled to inherit .their father's properties. There is no custom for taking sons-in-law in adoption. There is no cogent evidence on record to show occupation of the house since 1968. There are oral evidences and counter oral evidences of the plaintiffs and the defendants on the factum of possession. The demand notice issued by the municipality is of the year 1982. Even if the same is accepted, it only shows occupation of the plaintiffs' father prior to his death. The evidence of possession without meeting the requirement of proof of adverse possession is not sufficient to hold adverse possession over the property hostile to the interest of actual owner. There is admitted friendship between the plaintiffs' father and the fathers of Defendant Nos. 1 and 2 and there is reason to believe that the plaintiffs' father was accommodated in the house of the fathers of the Defendant Nos. 1 and 2. 8. In view of the aforesaid discussion, learned lower appellate court held that the trial court failed to appreciate the requirement of law for establishing the right, of adverse possession. He further noticed that though the plaintiffs claimed their possession over the portion of the house, they have sought declaration of their right title and possession over the entire land, measuring 66 decimals. Learned lower appellate court, thus, reversed the adverse finding of the trial court and allowed the appeal. 9. Learned counsel for the appellants, assailing the impugned judgment, submitted that judgment of learned Trial Court was well founded, proper and correct and learned lower appellate court has committed error in upsetting the said finding without meeting the reasons recorded by the Trial Court. 10. Having heard learned counsel for the appellants, I find from the impugned judgment of the learned lower appellate court that the detailed reasons have been assigned for taking contrary view against the findings of learned Trial Court. He found that the plaintiffs have not been able to establish their claim of acquisition of title over the suit land either by virtue of deed of adoption or deed of gift or by adverse possession. There is no specific pleading of adverse possession as required by law. The evidences on record can be read only to the extent of the pleadings of the parties. There is no specific pleading of adverse possession as required by law. The evidences on record can be read only to the extent of the pleadings of the parties. Proof without pleading has no meaning. Learned lower appellate court has clearly found that there is no documentary evidence of transfer of the land in favour of the plaintiffs' father or in their favour.• An oral assertion does not confer any title. There is neither registered document in support of the plaintiffs' claim of right title nor any required pleading and proof of acquisition of title by adverse possession. As stated above, the findings of the learned lower appellate court is based on due discussion of evidences and materials on record and are well founded. 11. It is well established that the finding of fact arrived at by the appellate court, which is the final court of fact, is binding on this Court, if the same is not perverse and illegal. I find no illegality and perversity in the findings of the learned lower appellate court. The appellants have failed to make out any ground, giving rise to substantial question of law to be framed and decided by this Court. 12. This appeal is, accordingly, dismissed.