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2019 DIGILAW 1693 (JHR)

Charwa Oraon v. Dasrath Oraon

2019-09-23

SANJAY KUMAR DWIVEDI

body2019
JUDGMENT Sanjay Kumar Dwivedi, J. - Heard Mr. Arun Kumar, learned counsel appearing for the appellant. 2. This second appeal has been filed against the judgment and decree dated 31.08.2018 (Decree sealed and signed on 14.09.2017) passed by learned District Judge-III, Gumla in Title Appeal No.04/2015 whereby the learned court of appeal below dismissed the appeal and confirmed the judgment and decree dated 23.02.2015 (Decree sealed and signed on 04.03.2015) passed by the learned Civil Judge (Division-I) cum A.C.J.M. Gumla in Partition Suit No.18/2005, has been confirmed. 3. The Partition Suit No.18 of 2005 has been instituted for the partition of suit land more fully described in Schedule A of the plaint being the land under Khata No.6 and 7 of Village Ludgo, P.S. Ghaghra, District Gumla. 4. It transpires from the judgment of the court below that the plaintiff''s case in the court below was that the parties of the suit are Oraon by cast and they are governed by their customary law in the matter of inheritance and successors according to which the widows are not entitled to inherit and property left by their husband rather they are entitled only for maintenance till their death or remarriage. Similarly the daughters are also entitled for maintenance only till their remarriage without having any right of inheritance. The lands of Khata No.6 and 7 being the suit lands were recorded in the name of Etwa Oraon S/o Somra Oraon who happened to be the common ancestor of the parties. The said Etwa Oraon died living behind his only son Lede Oraon and the said Lede Oraon also died living behind him his three sons Lohra Oraon, Ewtwa Oraon and Deoshay Oraon. The Lohra Oraon died issue less whereas the Etwa Oraon died living behind him his two sons namely Bandhnu Oraon and Dasrath Oraon. The said Dasrath Oraon is the plaintiff of this case and the Bandhnu Oraon died living behind his only son Hira Oraon who is the proforma defendant in that case. The Deosai Oraon died living behind his three sons Charwa Oraon, Pandra Oraon and Temba Oraon who were arrayed as defendants no.1,2 and 3 of the suit respectively. During the pendency of the suit defendant no.3 Temba Oeraon died and name of his heirs and successors have been brought on record as substituted defendants no.3a and 3b. The Deosai Oraon died living behind his three sons Charwa Oraon, Pandra Oraon and Temba Oraon who were arrayed as defendants no.1,2 and 3 of the suit respectively. During the pendency of the suit defendant no.3 Temba Oeraon died and name of his heirs and successors have been brought on record as substituted defendants no.3a and 3b. The further case was that the suit land is still joint and yet the parties are cultivating lands separately according to their convenience but it has been never partitioned amongst the parties by metes and bounds. As there are some disputes between the parties and it is not possible for the plaintiffs and proforma defendant to remain joint with the defendants and the suit lands were liable to be partitioned in two equal shares out of which the plaintiffs and proforma defendant together will get one share and one share wilol be allotted to the defendants. The plaintiffs and proforma defendant demanded for partition but the defendants refused to do so. On the above facts, the respondents/plaintiffs had prayed for following reliefs: (A)That a decree for partition of the suit land be passed. (B) That 1/2 share of plaintiffs and proforma defendant be carved out by appointing a pleader commissioner and the same be delivered in possession of the plaintiffs and proforma defendant through the process of the court. (C) That full cost of the suit be awarded to the plaintiffs against the defendants. (D)That any other relief or reliefs which the plaintiffs and proforma defendant are entitled be given. 5. After service of summon the defendants no.2 Panda Oraon and defendants no.3 Temba Oraoaon have appeared and filed a written statement in the suit and taken ground that the suit is not maintainable in present form and for the reliefs claimed and the same is false and vexatious. They have denied the claim of plaintiffs and proforma defendants regarding to their half share in the present properties. According to these defendants the common ancestor Lede Oraon had already partitioned the suit land in his life time and his these sons were cultivating the lands allotted to their respective share since 60 to 65 years ago. The further case of the defendants was that the Lohra Oraon did not die issue less rather he had four daughters namely Punia, Dhunia, Rukmini and Genduwa and he had no son. The further case of the defendants was that the Lohra Oraon did not die issue less rather he had four daughters namely Punia, Dhunia, Rukmini and Genduwa and he had no son. The said Lohra Oraon had adopted the defendant no.1 was cultivating the lands of the share of deceased Lohra Oraon on account of being his adopted son. After the death of the said Lohra Oraon this defendant no.1 performed the marriage ceremony of his sisters Rukmini and Ganduwa Oraion also and he also performed the last ceremonies of the said Lohra Oraon and his wife. It was further averred that no cause of action ever accrued to the plaintiffs as the suit land has been already partitioned and the plaintiffs and the proforma defendant are not entitled to any relief. On the aforesaid grounds the defendants no.2 and 3 have prayed to dismissed the suit with cost. 6. The defendant no.1 Charwa Oraon has also appeared and filed a separate written statement stating therein about the said previous partition and his adoption by the Lohra Oraon. According to this defendant the said Lohra Oraon had adopted this defendant as his adopted son with consent of his brothers Etwa Oraon and Deosai Oraon when this defendant was aged about eight-nine years for the help of his cultivation work and his defendant is the adopted son of said Lohra Oraon. The defendant has also substantially pleaded the same things as the defendants no.2 and 3 in their written statement. 7. On the basis of pleading of the parties the following issues have been settled in this case by the trial court: 1. Is the suit as framed, maintainable? 2. Has the valid cause of action arose for the suit? 3. Is the plaintiff and defendants belong to one common ancestor 4. Are the suit properties ancestral property of both the parties? 5. Is the plaintiff entitled to get a half share in the suit property by way of partition? 6. Is the plaintiff entitled to get the relief as claimed? 7. Is the plaintiff entitled for cost of the suit? 8. Is the plaintiff entitled for any other relief or reliefs? 8. 5. Is the plaintiff entitled to get a half share in the suit property by way of partition? 6. Is the plaintiff entitled to get the relief as claimed? 7. Is the plaintiff entitled for cost of the suit? 8. Is the plaintiff entitled for any other relief or reliefs? 8. The trial court entered into the detailed discussion on the evidences adduced by the parties and the documents in deciding the suit, the trial court while deciding the issue no.3 as jointness of the Title and possession of the parties with respect to the suit properties after examining the written statement particularly paragraph 3 of their written statement in which they have admitted the para 2 of the plaint and looking into the certified copy of the Khatiyan of khata no.6 and 7 of Village Ludgo marked as Ext.2 the trial court came to the finding that these lands have been recorded in the name of Etwa Oraon, S/o Somra Oraon, that is why the suit properties are the ancestral properties of the parties namely Etwa Oraon, S/o Somra Oraon. 9. With regard to the issue no.4 the defendant no.1 Charwa Oraon adopted son of Lohra Oraon the trial court entered into the discussions of evidences of P.W.s and D.W.s. D.W.3 Sudhram Oraon has also said in quite general way that the Lohra Oraon had adopted son the Charwa Oraon with the consent of other brothers and the said Charwa Oraon was residing with Lohra Oraon and he was cultivating the land of Lohra Oraon since his life time itself and he had performed the last ceremony of Lohra Oraon and his wife Somari Oraion also. Accordingly, the issue no.4 was decided negatively against the defendants and in favour of the plaintiff/proforma defendant. 10. Accordingly, the issue no.4 was decided negatively against the defendants and in favour of the plaintiff/proforma defendant. 10. The trial court taken up the issue no.1,2 5 and 6 altogether with regard to the share in suit property after discussing the evidences came to the conclusion that there is unity of the title over the suit lands and the defendants have denied from the plaintiff''s claim of partition, the plaintiff has a valid cause of action for the present suit and the present suit by the plaintiff for partition of the suit property and further for allocation of the half share of the plaintiff and proforma defendant together in the suit property by adopting a survey knowing pleader commissioner and delivery of possession of the plaintiff and proforma defendant over the half share allotted to them in the suit properties is maintainable and the plaintiff and proforma defendant together are entitled to get the relief claimed for partition of the suit properties and further for carving out the half share of the plaintiff and proforma defendant together by adopting a survey knowing pleader commissioner and jointly delivery of their possession over the share allotted to them. Accordingly these four issues were decided in the light of aforesaid discussion. The trial court decreed the suit on contest with cost for partition of the suit properties more fully described in the Schedule A of the plaint and further for carving out the half share of the plaintiff and proforma defendant together and delivery of their possession thereof. 11. Aggrieved with the judgment of the trial court, appellant filed the Title Appeal being Title Appeal No.04 of 2015 which was decided vide judgment dated 31.07.2017 by the District Judge-III Gumla. The appellate court has entered into the issues framed by the trial court and re-casted the issues in paragraph no.6 of the judgment which is quoted herein below: (i) Is the suit as framed, maintainable? (ii) Has the valid cause of action arose for the suit? (iii) Is their jointness of title and possess amongst the parties? (iv) Is the defendant no.1 Charwa Oraon adopted son of late Lohra Oraon? (v) Is the plaintiff entitle to get the relief as claimed? (vi) Is the plaintiff entitled for any other relief or any other reliefs? 12. (ii) Has the valid cause of action arose for the suit? (iii) Is their jointness of title and possess amongst the parties? (iv) Is the defendant no.1 Charwa Oraon adopted son of late Lohra Oraon? (v) Is the plaintiff entitle to get the relief as claimed? (vi) Is the plaintiff entitled for any other relief or any other reliefs? 12. The appellate court entered into the depositions of witnesses and the documents and after discussing minutely the documents and witnesses came to the finding that the suit as held that the plaintiff has valid cause of action and proforma defendant 5 is entitled to half share of the suit schedule land falling under khata no.6 & 7 of Village-Ludgo, P.S. Ghaghra, District Gumla. The appellate court came to the conclusion that in view of the finding recorded by the trial court required no interference and the said title appeal was dismissed. 13. Aggrieved with the above judgments passed by both the trial court as well as appellate court, the appellant has preferred the second appeal before this Court. 14. Mr. Arun Kumar, learned counsel appearing for the appellant submits that the parties are being governed by the customary law and in view of the customary law, female are not entitled for taking possession over the suit property. He further submits that so far as the adoption of Charwa Oraon is concerned, that has also not been properly discussed by the trial court as well as the appellate court. He further submits that these are the substantial question of law and the second appeal is fit to be admitted. 15. This Court has examined the judgment of both the trial court as well as appellate court who concurrently held that the suit property is needed to be carved out the half share of plaintiff and proforma defendant together. The trial court as well as the appellate court have discussed the evidences of the witnesses as well as the exhibits. The argument advanced by Mr. Arun Kumar, learned counsel appearing on behalf of the appellant that the two facts finding courts have not properly examined the materials available on record and came to the above findings is not accepted as this Court perused the judgments and finds that there is no perversity. 16. The argument advanced by Mr. Arun Kumar, learned counsel appearing on behalf of the appellant that the two facts finding courts have not properly examined the materials available on record and came to the above findings is not accepted as this Court perused the judgments and finds that there is no perversity. 16. This Court sitting under Section 100 of the Code of Civil Procedure is not inclined to enter into the discussion of evidences and documents and finds that no substantial question of law is involved in this case and both the courts below looking to the materials gave concurrent finding. 17. Accordingly, the Second Appeal stands dismissed.