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2011 DIGILAW 119 (JHR)

Sushil Hembram v. Satya Marandi

2011-02-22

POONAM SRIVASTAV

body2011
Order The instant second appeal has been preferred against the non-concurrent judgment and decree dated 30.5.2009 (decree sealed and signed on 16.6.2009) passed by 5th Additional District Judge, Fast Track Court, Jamtara in Title Appeal No. 12/ 2008 setting aside the judgment dated 30.9.2008 (decree dated 20.1'1.2008) passed by Sub-Judge-II. Jamtara in Title Suit No. 60/92. 2. The Appeal is listed under Order 41 Rule 11 C.P.C. The contesting defendant had filed a caveat and. they are represented by their counsel. The respective counsel have agreed that the appeal may be decided finally at the stage of 'Admission' itself. 3. At the very outset, the counsel appearing on behalf of the appellants pointed out that he has raised five substantial questions of law in the appeal. After hearing him at length, I am satisfied that the only substantial question of law which arises for consideration, is enumerated below- "Whether finding of the learned Lower Appellate Court on Point No.-III, holding that registered Deed Exhibit-2, i.e. deed of declaration as 'Gharjamai' of Fagu treating the same as deed of transfer is in violation of Section 20 of the Santhal Parganas Tenancy Act is erroneous and unsustainable?" 4. I proceed to decide this appeal on the aforesaid question raised in the appeal. 5. The plaintiff preferred the suit for declaration of right, title and interest over the suit property and confirmation of possession of the suit land. Alternatively, the relief of recovery of possession, if found to be not in possession alongwith perpetual injunction, was claimed. 6. According to the plaintiff, the suit property was originally recorded in the name of one Jura Marandi who had four daughters and one son. The son Babulal Marandi and three daughters died issueless before the last survey settlement. It was further pleaded that Jura Marandi got his daughter Badani Majhain married with Fagu Hembram in the customary "Gharjamai" form and the plaintiffs live in the house of Jura Marandi, being only son of Fagu Hembramand Badani Majhain. The plaintiff Lobin Hembram claimed his right on the basis of his father and mother being entitled for the property of Jura Marandi and that he is the only survivor, since the marriage of the appellant's parents was performed under the customary "Ghar Jamai" form. The defendant attempted to! dispossess the plaintiff and also created continuous problems in occupation of the plaintiff. Hence, the suit. 7. The defendant attempted to! dispossess the plaintiff and also created continuous problems in occupation of the plaintiff. Hence, the suit. 7. The trial court framed a number of issues. The• main issue for consideration was issue no. 7. "Whether Jura Marandi had married his daughter Badani Majhain with fagu Hembram in Gharjamai form of marriage?" thereby, the entitlement of the plaintiff for the relief claimed in the suit. 8. The trial court examined. as many as 14 witnesses on behalf of the plaintiff and nine witnesses on behalf of the defendant. The Ext.-2 is a document which was written in the year 1956 by Jura Marandi and the recital of the said document is to the effect that marriage of Badani and Fagu took place 34-35 years back in the customary "Ghar Jamai" form and they have been living alongwith Jura Marandi and thereby only claimant of the property in question. 9. The trial court decided issue no. 7 in favour of the plaintiff and interpreted Ext.-2-aforesaid document written by jura Marandi. The claim of the defendant that the said document is the 'Will' as per' under Section 20 of the Santhal pargana Tenancy Act, was not accepted by the Trial Court. 10. The suit was decreed by the trial court confirming the contention of the plaintiff that' the marriage of his parent was in the customary "Ghar Jamai" form of marriage and the oral evidence as well as the recital of the document-Ext.-2 is sufficient to come to a conclusion that the said document was not a "Will". The defendant Satya Marandi and three others filed a Title Appeal No. 12/08 in the Court of 5th Additional District Judge, F.T.C., Jamtara. 11. The appellate court framed three points for determination in the appeal: - (i) Whether learned trial court has committed a mistake in decreeing the suit on the ground that Badani and Fagu were married in Ghar Jamai form and therefore, the descendant of Badani and Fagu succeeded to the suit property? (ii) Whether Fagu Hembram and Badani were married in Ghar jamai form, if yes, what is evidence on the record? (iii) Whether there is evidence on the record to prove that daughter of Santhal having no male issue can succeed his property as per custom in the present case?" 12. The appellate court discarded the finding of the trial court and dismissed the plaintiff's suit. (iii) Whether there is evidence on the record to prove that daughter of Santhal having no male issue can succeed his property as per custom in the present case?" 12. The appellate court discarded the finding of the trial court and dismissed the plaintiff's suit. The Ext.-2 was a document which was of no help to the plaintiffs and it was held that the registered deed can only be taken to find out the sequence of marriage of Badani and death of her brother Babulal Marandi. The finding arrived at by the appellate court was that the marriages of the other three daughters and son Jura Marandi was performed after the marriage of Badani Marandi and, therefore, at the time of the marriage of Badani with Fagu, Babulal was alive and therefore the "Ghar Jamai" marriage cannot be done by a Santhal whose only son was alive and therefore, the question of Ghar Jamai form of marriage is beyond ,consideration. 13. The appellate court has also discussed the oral evidence on behalf of the parties and arrived at a conclusion that save P.W. 1 Ratai Marandi, aged about 80 years, all the other prosecution witnesses were of such an age that their presence at the time of marriage of Badani with Fagu in the year 1921-22 stands completely ruled out. Thus, there is no 'direct evidence to substantiate the marriage in the "Ghar Jamai" form and the evidence is nothing but of a hearsay nature. So far the document Ext.-2, the appellate court has concluded that Badani Marandi, being eldest daughter, was married and at that time, Babulal was alive. Merely mentioning in the document that Badani and Fagu were married in the "Gharjamai" form will not confer any right or any help except to find out the sequence of marriage of the brother and sisters of Badani. The fact they may be established that Badani and Fagu lived in the house of Jura Marandi and settled there permanently but merely because of this aspect on the face of the provisions of the Santhal Pargana Tenancy Act, their occupancy cannot be termed to be on the basis of an assumption that Fagu was a "Ghar Jamai". The conclusion arrived at by the Trial Court has been discarded after appraisal of evidence by the appellate court. The conclusion arrived at by the Trial Court has been discarded after appraisal of evidence by the appellate court. The document-Ext.-2, which was no doubt a registered deed, merely speaks that Jura Marandi did have an intention to keep his daughter and son as "Ghar Jamai" after death of his son but the fact that customary tribal law was adhered to at the time of marriage of Badarii and Fagu, is not established. 14. The question decided by the appellate court has completely negated the findings of the trial court. The reasonings given for discarding the conclusion of the trial court is well discussed and, therefore, it cannot be said that the lower appellate court has casually upset the finding of the trial court or discarded the conclusion without taking into consideration the essential ingredients to substantiate a "Ghar Jamai" form of marriage as well as the interpretation of Ext.-2 cannot be said to be illegal. 15. I have given a careful consideration to the judgment of the lower appellate court as well as the arguments advanced by the respective parties and I do not find, that there is any substantial error in the ' judgment impugned. In view of the decision of the Apex Court, as ruled in the case of Santosh Hazari vs. Purushottam Tiwari [ (2001)3 SCC 179 ] and Govinda Raju vs. Mariamman [ (2005)2 SCC 500 ] and various other decisions, the substantial question of law raised on behalf of the appellant does not exists. This Court, in exercise of jurisdiction under Section 100 C.P.C., cannot enter the realm of reappraisal of evidence and, therefore, I decline to interfere in the instant second appeal, 16. No good ground for interference is made out. The appeal is accordingly dismissed. 17. No order as to costs.