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2011 DIGILAW 959 (JHR)

Sunil Soren v. Dilip Hembram

2011-10-17

N.N.TIWARI

body2011
Judgment This is the plaintiff's appeal against the judgment and decree dated 22.1.2009 passed by the 5th Additional District Judge (FTC), Dumka in T.A. No.25/2007 affirming the judgment and decree dated 30.6.2007 passed in Title Suit No.131 of 1998 by Sub Judge-I, Dumka. 2. The plaintiff had brought the said suit against the defendants seeking decree declaring that the plaintiff is validly adopted son of Randhan Hembram and Nunwa Soren as per their custom and inherited the property of Randhan Hembram. A decree for injunction was also sought restraining the defendant Nos. 1 to 3 from interfering with the right, title, interest and social status of the plaintiff. 3. The plaintiff's case, in brief, was that Randhan Hembram wife of Nunwa Soren and daughter of Kharia Hembram had inherited the property of Jamabandi No.21 of Mouza Jargaridih, P.S. Masalia, District Dumka. Accordingly, the record of right was prepared in the name of Randhan Hembram in last settlement being Jamabandi No.21, corresponding to the new settlement Jamabandi No.18 of Mauza Jargaridih. Randhan Hembram and her husband Nunwa Soren had no issue. They had adopted the plaintiff as their son according to the Santhal custom on 3.1.1987 in presence of Handi Manjhi, Jog Manjhi and other villagers. They subsequently executed a registered deed of adoption No.119/91 dated 22.3.1993 acknowledging the adoption. The adoptive mother of the plaintiff died on 21.8.1994 and subsequently father died on 23.3.1995. During the recent settlement Jamabandi was recorded in the name of adoptive mother. After death of his mother the plaintiff filed petition before the Settlement Officer, Dumka for entry of his name as tenant in place of Randhan Hembrom. Defendant Nos. 1 to 3, claiming themselves as agnets of Randhan Hembram, objected to the said prayer of the plaintiff. Learned Assistant Settlement Officer by his order dated 30.6.1997 directed to maintain the name of Randhan Hembram giving liberty to the plaintiff to get his right decided by competent court. Hence, the suit. 4. The defendants appeared and filed written statement contesting the plaintiff's suit. It was, inter alia, stated that name of Randhan Hembram was initially recorded in the settlement record. The defendants had filed objection against the entry. The same is still pending. The present settlement has not yet finalised. The record of right has not been finally framed and published. The parties are 'Santhals'. They are not governed by Hindu Law. It was, inter alia, stated that name of Randhan Hembram was initially recorded in the settlement record. The defendants had filed objection against the entry. The same is still pending. The present settlement has not yet finalised. The record of right has not been finally framed and published. The parties are 'Santhals'. They are not governed by Hindu Law. There is neither custom of adoption in Santhals nor any law provides for adoption in Santhal community. The claim of the appeallant is wholly false and frivolous. There was no adoption as claimed by the plaintiff. The alleged registered deed is fabricated and a forged document. It was not signed by Randhan. Even an issueless Santhal is not entitled to adopt any son. In case where there is no son and there is daughter, a Santhal is entitled to bring 'Gharjamai' after marrying his daughter and his status is at par with adoption. It was stated that the suit is frivolous and baseless and not at all maintainable. 5. On the pleadings of the parties, several issues were framed by learned trial court. 6. Both the parties led their evidences. After discussions of the facts, evidences and materials on record in detail, learned trial court held that the plaintiff failed to prove that he was legally adopted son of Randhan Hembrom and Nunwa Soren and that there is no such custom for adopting son among Santhal community. It was further held that the plaintiff has not inherited the suit property and the plaintiff has no cause of action and the suit is not maintainable. Learned trial court decided all the issues against the plaintiff and dismissed the suit. 7. Against the said judgment and decree the plaintiff filed appeal in the court of District Judge, Dumka being T.A. No.25 of 2007. 8. Learned lower appellate court heard the parties and considered the grounds taken in appeal in the light of pleadings and evidences on record. Learned lower appellate court, after due discussion of the facts, evidences and materials on each issue, recorded its own independent finding holding that the plaintiff failed to prove that he is adoptive son of Randhan Hembram and Nunwa Soren. Learned lower appellate court, however, differed with the trial court on the finding of Issue No.5 and held that the same was not correctly decided by learned trial court. Learned lower appellate court, however, differed with the trial court on the finding of Issue No.5 and held that the same was not correctly decided by learned trial court. The adoption of child is accepted in the custom of Santhal community. 9. Learned lower appellate court, however, concurred with the other findings and upheld the judgment and decree of learned trial court and dismissed the appeal. 10. The judgment and decree of learned lower appellate court has been challenged, in this appeal on the ground that the courts below have not properly appreciated the facts and evidences on record and passed erroneous judgment and decree. There is sufficient material on record in favour of adoption of the plaintiff coupled with the registered deed of adoption and in view of the registered deed learned court below should not have discarded the plaintiff's claim of adoption. Learned counsel submitted that when the learned lower appellate court has held that there is custom of adoption in Santhal community, there is no reason for rejecting the plaintiff's claim. The findings of learned courts below on the issue of adoption are wholly erroneous and are liable to be set aside. Learned counsel further submitted that in Hindu Adoption and Maintenance Act Section 16 provides for presumption of adoption if the adoption is recorded in a registered deed until the same is disproved. In that view adoption of the plaintiff has to be presumed. The onus was on defendants to disprove the adoption and contents of the registered deed. But they failed to do so. Learned courts below have wrongly recorded their finding without taking into consideration the said legal aspect. The finding as well as the judgment and decree of learned courts below are perverse and unsustainable. 11. I have heard learned counsel for the parties and perused the judgments and decree of learned courts below. 12. On close scrutiny of the record I find that learned courts below have thoroughly discussed the facts and evidences on record and have recorded their findings on due appreciation thereof. 13. Admittedly parties are Santhals and they are governed by their own customs. The provisions of Hindu Law as well as Hindu Adoption and Maintenance Act have got no application in their case. Presumption provided under Section 16 is not applicable in the instant case. 13. Admittedly parties are Santhals and they are governed by their own customs. The provisions of Hindu Law as well as Hindu Adoption and Maintenance Act have got no application in their case. Presumption provided under Section 16 is not applicable in the instant case. The plaintiff had to prove his claim of adoption by producing competent witnesses and other admissible evidence. 14. On proper appraisal of the evidences on record both the courts below have concurrently found that the plaintiff failed to prove his claim of adoption. Concurrent finding of fact arrived at by two courts are binding on this Court in second appeal. 15. I, therefore, find no ground made out in this second appeal giving rise to any substantial question of law. 16. This appeal is, accordingly, dismissed.