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2023 DIGILAW 137 (JHR)

Santosh Kujur v. Lohra Oraon

2023-02-08

SANJAY KUMAR DWIVEDI

body2023
JUDGMENT : SANJAY KUMAR DWIVEDI, J. 1. Heard Mr. Abhilash Kumar, learned counsel for the appellants and P.R. Rochan, learned counsel for the respondents. 2. This second appeal has been filed being aggrieved and dissatisfied with judgment dated 05.02.1998 and decree dated 12.02.1998 passed by the First Additional District Judge, Gumla in Title Appeal No. 66/93 allowing the appeal and setting aside the judgment dated 12.08.1993 and a decree dated 25.08.1993 passed by the learned Additional Munsif, Gumla in Title Suit no. 41 of 1991. 3. The Title Suit No. 41 of 1991 was instituted by the plaintiffs for declaration of their title over the suit land described in Schedule B of the plaint alongwith mesne profit and damaged amounting to Rs. 1600/- with interest. The Court decreed the suit in favour of the plaintiffs against defendant nos. 1 and 2. On contest the suit was decreed vide judgment dated 12.08.1993 and decree dated 25.08.1993 with cost and the plaintiffs were declared to have valid claim of title and possession over the suit land described in Schedule B of the plaint. Aggrieved with that the defendants filed Title Appeal No. 66 of 1993 which was decided on 05.02.1998 and the said appeal was allowed and the judgment of the learned trial court was reversed. Aggrieved with that the present second appeal has been preferred. 4. The case of the plaintiffs in short is that R.S. Khata No. 87 and 90 with an area of 25.83 acres stood recorded in the name of Dalay and Fagu Oraon which was partitioned between the females descendants of the two recorded tenant through a registered deed of partition but the suit land falling under Khata No. 88 and 89 with a total area of 3.37 acres recorded in the name of same Dalay and Fagu Oraon could not be included in that registered deed of Partition. It was pleaded that Dalay Oraon died leaving behind his widow and four daughter Salmi, Luisa, Maghi and Mangra and no son, so he kept Mangra Oraon as ghardamad for his daughter Luisa and married accordingly. Mangra also died leaving behind his son Fagu plaintiff no. 3. Likewise recorded tenant Fagu second son of Mangra Oraon the husband of Pairo Orain was also sonless having four daughters namely, Teresa, Kipra, Boby and Pitro. Mangra also died leaving behind his son Fagu plaintiff no. 3. Likewise recorded tenant Fagu second son of Mangra Oraon the husband of Pairo Orain was also sonless having four daughters namely, Teresa, Kipra, Boby and Pitro. This Fagu Oraon adopted Bani Oraon as ghardamad and married his daughter Boby Orain accordingly with him who are the plaintiff no. 1 and 2 here. So both the ghardamad acquired and inherited as sons the joint lands of the two recorded tenants Dalay and Fagu and came in possession on thereof. It was said that under misc. case no. 2/87-88 the name of Lohra Oraon and others the defendants was removed from the Revenue record by Circle Officer, Palkot on 31.08.1987. It was also said that there was a criminal case no. 118/88-95-91 for paddy harvesting brought by the plaintiff against the defendants from portion of suit land which ended in acquittal of the defendants through judgment dated 2.4.1991. The plaintiffs have got cause of action for the suit on 26.10.88 when the paddy harvested and on 2.4.1991 when the defendants were acquitted in that criminal case. The plaintiffs have given a genealogy to explain the relationship of plaintiffs with the recorded tenants which is mentioned in trial court judgment. The plaintiff has prayed for declaration of their title over the suit land described in Schedule B of the plaint alongwith mesne profit and damaged amounting to Rs. 1600/- with interest. 5. The case of defendants is that the suit is not maintainable and the same is hit by principle of waiver and acquiescence and the suit is also said to be barred by law of limitation adverse possession and the provisions of specific relief Act. The suit is also said to be under valued. The defendants have denied the alleged partition and said that the same is illegal, and void because under the Oraons custom the females are debarred from inheritance and succession. The widow and unmarried daughters are entitled for maintenance till death and marriage cost out of the usufruct of the lands of sonless Oraon in the respective case and his properties is inherited and succeeded by his nearest male agnates. In the alleged deed of partition on the parties are widow and daughters having no title and share over the lands in question. In the alleged deed of partition on the parties are widow and daughters having no title and share over the lands in question. The defendants are the nearest male agnates of the two recorded tenants who held and possessed the suit land. The R.S. Entry with respect to the suit land in the name of Daley and Fagu stands admitted but it was pleaded that Daley died leaving behind his widow or daughters and his brother Fagu Oraon succeeded the interest of Daley and became the absolute owner of the suit land. The defendants and father of some of the defendants being the relatives and bhaiyads of the recorded tenant helped him in his cultivation as he was sonless so Fagu during his life time gave the suit lands to the defendants and father of some of the defendants for over and they began to cultivate the same in exercise of their own right. Pairo Orain wife of late Fagu subsequently executed a sada deed on 05.07.1954 with respect to the suit lands stating therein that the lands of other khata will remain in possession till her life time and after her death will be inherited by the defendants and the father of some of the defendants in the capacity of Bahiyads. So accordingly, the defendants who are in possession of the suit land have also inherited and succeeded such lands after death of Pairo Orain. The defendants are paying rent for the suit lands and are in cultivating possession over the same. The plaintiffs claim of the suit lands is denied by the defendants. The plea of ghardamad taken by the plaintiff is also denied and said that none were the ghardamad, so it was said that the suit is without any merit and cause of action and hence has been prayed to be dismissed with compensatory cost to these defendants. 6. This second appeal was admitted by order dated 23.09.1999 on following substantial question of law: “(a) Whether the lower appellate court has committed an error by dismissing the suit on the ground of adverse possession, although the issue relating to adverse possession had not even been pressed before the trial court which shall be evident from paragraph 13 of the judgment of the trial court? (b) Whether the lower appellate court has committed an error by dismissing the plaintiffs’ suit on the ground of adverse possession by relying upon solely on Ext. ‘A’ which being a mere sada paper allegedly to have been executed by Pairo Orain was totally inadmissible besides being wholly irrelevant as under the Oraon customary law, a widow does at all inherit and has, therefore, no right to execute any document in respect of the properties of her husband? (c) Whether, since the defendant’s case was based upon Exhibit A the appellate court could have at all held the same to be genuine, although the same was seriously disputed getting the same examined by any expert as it is a well settled law that if a party relies upon a particular document as genuine, then the onus lies upon that party to prove the genuineness of the said document?” 7. On the issue of law point, Mr. Abhilash Kumar, learned counsel for the appellants submits that the judgment of the learned appellate court is illegal and vitiated an error of a substantial question of law by dismissing the suit on the ground of adverse possession, although the issue relating to adverse possession had not even been placed before the learned trial court which shall be evident from paragraph no. 13 of the judgment of the learned trial court. He further submits that the learned appellate court dismissed the plaintiff’s suit on the ground of adverse possession relying upon solely on Exhibit A which being a mere sada paper alleged to have been executed by Pairo Orain was total inadmissible besides being wholly irrelevant as under the Orain customary law, a widow does not at all inherit and has therefore, no right to execute any document in respect of the properties of her husband. He further submits that the learned appellate court has wrongly held that that even if the defendants/respondents had failed to prove their defence version of being ‘Bhaiyads’ (agnates) even then, the suit is liable to be dismissed on the ground of adverse possession. Although, no such case had been pleaded by the defendants in their written statement. He further submits that there is no pleading of adverse possession had been raised in the written statement except taking the bald plea that the suit is barred by limitation and adverse possession. Although, no such case had been pleaded by the defendants in their written statement. He further submits that there is no pleading of adverse possession had been raised in the written statement except taking the bald plea that the suit is barred by limitation and adverse possession. He further submits that the mandatory provision of Order 41 Rule 31 of the Code of Civil Procedure has not been taken care of by the learned appellate court. He further submits that Exhibit A was wrongly interpreted by the learned appellate court. On these grounds he submits that the judgment of the learned appellate court is perverse and the substantial question of law be answered in favour of the appelants. 8. On the other hand, Mr. P.R. Rochan, learned counsel for the respondents submits that learned appellate court has rightly decided the case on the basis of adverse possession. He submits that there is no illegality in the judgment of the learned appellate court admitting that the learned trial court has failed to consider those issues which have been framed by the learned appellate court and in that view of the matter the substantial question of law may be answered in favour of the respondents. 9. In view of above submission of the learned counsel for the parties , the Court has gone through L.C.R. as well as the judgment of the learned trial court and appellate court and finds that learned trial court has framed this main issue and decided the suit. Issue No. 6 was with regard to whether Luisa and Boby married in ghardamad form to Mangra and Buni and did they accordingly inherited the interest of their respective father-in-law as sons under the Oraon custom. Issue No. 7 was with regard to has the plaintiff got valid title and possession over the suit lands. While deciding both the issue no. 6 and 7 the learned trial court has considered that the plaintiffs have claimed that that they are ghardamad and descendant of ghardamad Mangra adopted as such by the two recorded tenants Daley and Fagu and married accordingly with their respective daughters Luisa and Boby and accordingly they have succeeded on the strength of ghardamad the entire share of the two recorded tenants of R.S. Khata No. 87, 88, 89 and 90. The lands measuring 25.85 acres under R.S. Khata No. 90 and 87 standing admittedly in the name of Dale and Fagu Oraon stood already partitioned between the leaving heir Mosst. Paira Orain wife of Fagu on the one hand and the two daughters Luisa and Boby on the other through a registered deed of partition dated 24.12.73 made Exhibit 5 but the suit land could not be included in that partition deed although the plaintiffs on the strength of ghardamad has inherited and succeeded the same after the death of the two recorded tenants of the suit khata viz. khata no. 88 and 89 and they are in possession over the same by paying rent to the State of Bihar. On the other hand, the defendants have contended that Dale having died sonless his interest devolved upon his brother Fagu who gave the suit land to his nearest Bhaiyads and the defendants and their father put them in possession and subsequently after death of Fagu Orain executed a sada deed in the year, 1954 in favour of defendants assuring them for the lands other than the suit lands after her death. The defendants have to be in possession of the suit land by paying rent to the State of Bihar and have denied the status of plaintiffs as ghardamad of the two recorded tenants. 10. While deciding the those two issues, learned trial court has considered the document Exhibit-1 to 1/g which are the rent receipts (eight in number) marked exhibits in odd serials with respect to the suit land khata no. 88 and 89 with an area of 3.27 acres. The next eight rent receipts are also with respect to the suit lands standing in the name of plaintiffs and their moris marked exhibits under the same odd number and series exhibits 1/f to 1/I are the three State rent receipts in the name of Faguni wife of Dale with respect to the suit land along with the lands of other two khata i.e Khata 87 and 90 covered under the deed of partition which is other than the suit land. Exhibit D is the registered deed of ghardamad dated 25.08.1969 executed by Mosst. Exhibit D is the registered deed of ghardamad dated 25.08.1969 executed by Mosst. Pairo Orain wife of recorded tenant Fagu Oraon in favour of plaintiffs Banu wherein it is mentioned that prior to 10 to 12 years of the execution of the deed Boby was married in ghardamad form with the plaintiff Banu, Rct 3 to 3/b are the correction slip allowing mutation in the name of Pairo Oraon as succession with respect to the land and the lands of R.S. Khata No. 90 and 87 Exhibit 3b is the correction slip issued in the year 1989 in the name of plaintiff Boby as successor with respect to the suit land. Exhibit 4 is the judgment passed in complain case no. 118/88 under the I.P.C. acquitting the defendants from the offence of paddy harvesting from the portion of suit plot no. 1456/3848 on the ground of bona-fide civil disputes between the parties. Exhibit 4 is the mutation order dated 12.08.1986 passed in mutation case no. 15/1985-86 wherein the mutation application of defendant Lohra Oraon and others for the suit lands was disallowed by C.O. Palkot. Exhibit 4/a is mutation order dated 31.08.1987 passed in Mutation Case No. 2/87-88 in favour of plaintiff Boby Orain with respect to the suit land after rejecting the Zamabandi running illegally in the name of Lohra Oraon and others as because same was running without any authentication. Exhibit 4/b is certified copy of mutation order dated 12.07.1989 passed in Mutation Case No. 7/1989-90 in favour of applicant plaintiff Boby allowing mutation as successor with respect to the suit land. The enquiry report submitted in connection with the succession mutation in favour of Boby Orain is made X for identification X/1 is the application of defendant Lohra for mutation with respect to the suit land in his favor. The report submitted by Karamchari and C.I. in connection with mutation application of Boby Orain has also been filed. Exhibit 6 is the R.S. Khatian with respect to the suit land standing in the names of Dale and Fagu jointly which is an admitted documents. Exhibit 6/a and 6/b are the R.S. Khatian of Khata No. 87 and 90 standing in the name of same Dale and Fagu Oraon. Exhibit 6 is the R.S. Khatian with respect to the suit land standing in the names of Dale and Fagu jointly which is an admitted documents. Exhibit 6/a and 6/b are the R.S. Khatian of Khata No. 87 and 90 standing in the name of same Dale and Fagu Oraon. Exhibit 6/c is C.S. Khatian of the year 1908 for C.S. Khata No. 19 standing in the name of Charo and Malar Oraon both sons of Bhandra Oraon Exhibit 7 is an other Ghardamad patta dated 25.07.1969 executed by Pairo Orain in favour of Mangro Oraon husband of Luisa wherein it is mentioned that Dale Oraon had adopted Mangra deceased as ghardamad but a Dale Oraon had adopted Mangra deceased as ghardamad for his daughter Luisa with the common advice of villagers but as Dale could not execute any paper to that effect that is why the same executed by Mosst. Paira wife of recorded tenant Fagu. So exhibit 2 and Exhibit 7 are the two ghardamad pattas dated 25.08.1969 and 25.07.1969 executed by Mosst. Pairo Orain wife of recorded tenant Fagu in support of the adoption of Buni and deceased Mangra as ghardamad by recorded tenant Dale and Fagu. 11. On behalf of defendants Exhibit A was a sada document purporting to be the deed of declaration dated 05.07.1954 executed by Mosst. Pairo Orain wife of Fagu Oraon in favour of defendant to the effect that the defendants have succeeded the other land after her death and the suit land has already been given to the defendant by her husband Fagu Oraon. Exhibit B to B/3 are the four state rent receipts with respect to the suit land standing in the name of LOhra Oraon and others. Exhibit C is the certified copy of judgment passed in complain case no. 118/88. There is no any other document filed on behalf of the defendants. 12. Considering all documents including oral documents adduced by the plaintiffs as well as defendants learned trial court has held that the two consistent oral evidences of the defendants suggest that sada deed of declaration executed allegedly by Mosst. 118/88. There is no any other document filed on behalf of the defendants. 12. Considering all documents including oral documents adduced by the plaintiffs as well as defendants learned trial court has held that the two consistent oral evidences of the defendants suggest that sada deed of declaration executed allegedly by Mosst. Pairo Orain marked Exhibit-A is a palpably bogus and worthless piece of paper seems to have been created by the defendants with their evil design to lay false claim over the lands left by the two recorded tenants including the suit lands left by the two recorded tenants including the suit lands. The state rent receipts for the suit lands standing in the name of Lohra Oraon and others marked exhibit B to b/3 found to be an unauthenticated and equally worthless documents and rightly the demand running illegally in the name of Lohra and others has been cancelled by the C.O. Plakot in the order dated 31.08.1987 in Mutation Case No. 2/87-88 in exhibit 4 and the mutation succession has been allowed in the name of the plaintiffs through an order dated 12.09.1989 passed in mutation case no. 7/89-90 with respect to the suit land. The application for mutation with respect to the suit land filed by the defendants Lohra Oraon and others was rightly rejected by C.O. Palkot through order dated 12.08.1986 in mutation case no. 15/85-86 and considering all these documents as well as mutation order the learned trial court held that the plaintiffs Buni and Mangra were the two ghardamad having the status of sons of the two recorded tenants who has got valid claim of title and possession over the suit land and that is why both the issues were decided by the learned trial court in favour of the plaintiffs and against the defendant. Rest of the issues were also decided thereafter the suit was decreed in favour of the plaintiffs vide judgment dated 12.08.1993 and decree dated 25.08.1993. 13. The learned appellate court has decided the point no. 3 with regard to whether Luisa and Boby Orain married to Mangra and Buni Oraon respectively in Ghardamad form and did they accordingly inherit the interest of their respective father in-laws as sons under Oraon custom. 13. The learned appellate court has decided the point no. 3 with regard to whether Luisa and Boby Orain married to Mangra and Buni Oraon respectively in Ghardamad form and did they accordingly inherit the interest of their respective father in-laws as sons under Oraon custom. While deciding this issue, learned appellate court has affirmed the finding of this issue of the learned trial court however, learned appellate court reversed the finding of the learned trial court on the ground of adverse possession only that the said point was contested before the learned appellate court however, looking into these points, it appears that there is no clear cut statement with regard to adverse possession except general averment of entitlement on the point of limitation at the adverse possession. The said point was not agitated before the learned trial court. No issue was framed on that point and the learned appellate court on the point of adverse possession has reversed the finding of the learned trial court which is not in accordance with law. 14. In civil case being decided by the court it is settled law that beyond the pleadings no point can be allowed to be agitated. Moreover, the said point was not agitated before the learned trial court and the same was agitated before the appellate court. 15. It is well settled law that for permissive possession for long does not covert to adverse possession. Claimant by cogent and convincing evidence must show hostile animus and possession adverse to the knowledge of real owner. Plea of adverse possession and retaining possession by operation of Section 53A of the Transfer of Properties Act are inconsistent with each other. Moreover in the case in hand on the basis of documents of being ghardamad patta, rent receipts right title and possession was sought to be decided by the learned trial court. Issue of adverse possession is not res intergra. In that view of the fact the Hon’ble Supreme Court in the case of Roop Singh (Dead) through LRs. vs. Ram Singh (Dead) through LRs. 2000 (3) SCC 708 has held that plea of adverse possession is inconsistent with plea of right to possession on basis of part performance by operation of Section 53A of the Transfer of Properties Act are inconsistent with each other. vs. Ram Singh (Dead) through LRs. 2000 (3) SCC 708 has held that plea of adverse possession is inconsistent with plea of right to possession on basis of part performance by operation of Section 53A of the Transfer of Properties Act are inconsistent with each other. Particularly on that ground judgment of the trial court was not required to be reversed as the said issue has been affirmed by the learned appellate court. That is why on that point the findings of learned trial court and learned appellate courts are concurrent finding. 16. In view of reasons and analysis the Court comes to the conclusion that the appellate court has committed error of dismissing the suit on the ground of adverse possession. Although the issue relating to adverse possession had not been placed before the learned trial court which is apparent from Para 13 of the judgment of the learned trial court and the learned appellate court was not correct in dismissing the suit on the record of Exhibit A which is being mere Sada paper allegedly to have been executed by Pairo Orain was totally inadmissible besides being wholly irrelevant as under the Oraon customary law, a widow does at all inherit and has, therefore, no right to execute any document in respect of the properties of her husband. Accordingly, the law point is answered in favour of appellants. The appellate court reversed the judgment of the learned trial court on the point of adverse possession is erroneous particularly when the finding of the learned trial court has been affirmed by the learned appellate court on the possession of ghardamad. The law point is answered accordingly. The judgment of the learned appellate court dated 05.02.1998 passed in Title Appeal No. 66/1993 is set aside. The judgment of the learned trial court dated 12.08.1993 passed in Title Suit No. 41 of 1991 is restored. 17. This appeal stands disposed of. Pending, I.A. if any, also stands disposed of.