JUDGMENT : PRADEEP KUMAR SRIVASTAVA. J. 1. I have already heard the arguments advanced by Mr. Kundan Kr. Ambastha, learned counsel appearing for the appellants as well as Mr. Shailendra Kumar Singh, learned counsel appearing for the respondents. 2. Instant second appeal has been preferred by original appellant Jewel Oraon (since deceased) and represented through legal representatives being aggrieved and dissatisfied with the judgment and decree dated 21.04.1993 (decree signed and sealed on 07.05.1993) passed by learned 2nd Additional District Judge, Gumla in Title Appeal No.35 of 1979, whereby and whereunder the judgment and decree passed by learned Trial Court dismissing the suit of the plaintiff passed in Title Suit No.16 of 1974 dated 19.02.1979 has been reversed and set aside by the first Appellate Court.Accordingly, suit of the plaintiff was decreed. 3. It is to be mentioned at the very outset that initially the First Appeal No.35 of 1979 was heard and decided by A.J.C. 10th, Ranchi who vide judgment dated 28.03.1980 allowed the appeal setting aside the judgment and decree passed by learned Trial Court and the suit of the plaintiff/appellant was decreed. Against the said judgment, Second Appeal No.94 of1980(R) was preferred before the Hon'ble High Court, Patna, Ranchi Bench which was decided by the Hon'ble Court vide order dated 15.01.1990 and the judgment passed by Appellate Court dated 28.03.1980 was set aside and the matter was remanded back with certain directions to hear the first appeal afresh and pass fresh judgment in accordance with law. Accordingly, the appeal was reheard and appeal was allowed and the suit of the plaintiff was decreed. 4. The plaintiff Suleman Oraon instituted this Title Suit No.16 of 1974 for declaration of the deed of Ghardamadship dated 09.05.1974 executed by Hulasi Orain (defendant No.1) in favour of defendant No.2 Jewel Oraon as illegal, void and not binding on the plaintiff. It is further stated that Mangra Oraon is the common ancestor of the parties who had three sons namely Ghura Oraon, Kunjaria Oraon and Jaimashi Oraon. Plaintiff Suleman Oraon is the son of Ghura Oraon and Kunjaria Oraon died issueless. Defendant No.1 Hulasi Orain is the wife of Jaimashi Oraon (deceased). Jaimashi had three daughters namely Mary Orain, Fuli Orain and Premnica Orain. Mary Orain was married to defendant No.2 Jewel Oraon more than 30 years ago having several adult children. Plaintiff Suleman Oraon is the son of Ghura Oraon and Kunjaria Oraon died issueless. Defendant No.1 Hulasi Orain is the wife of Jaimashi Oraon (deceased). Jaimashi had three daughters namely Mary Orain, Fuli Orain and Premnica Orain. Mary Orain was married to defendant No.2 Jewel Oraon more than 30 years ago having several adult children. Fuli Orain was married to Mangal Oraon more than 15 years ago and the last daughter Premnica Orain was married to Prabhu Oraon more than 5 years ago by the joint family and out of joint funds. The landed properties of the family were recorded jointly in the name of the plaintiff Suleman Oraon, Kunjaria Oraon and Jaimashi Oraon in the revisional record of rights. Both Kunjaria and Jaimashi died without any male issue. It is further stated that female child of the Oraon community has no right to inherit the joint properties or to keep Ghardamad. The defendant No.1 Hulasi Orain being an Oraon lady had no right over the properties left by her late husband except the right of maintenance according to Oraon law and custom. The defendant No.1 is being maintained by the plaintiff after death of her husband. It is further alleged that the defendant No.2 Jewel Oraon was never adopted as Ghardamad by the last male owner Jaimashi. The defendant No.2 succeeded in inducing the defendant No.1 and got a deed of Ghardamadship executed in her favour against the law and custom prevalent against the Oraon community and the family of the parties in particular. The said deed has been executed surreptitiously and fraudulently with a view to contravene the law and raise a false claim of share in the property already inherited by the plaintiff. It is further alleged that due to execution of the said deed a threat to the right, title and interest of the plaintiff has been caused in respect of the properties left by intestate Jaimashi Oraon. 5. The defendants appeared and filed their written statement stating inter alia that the suit is not maintainable, barred by law of limitation, plaintiff has no cause of action for the suit. It is denied that the plaintiff is agnatic relation of Jaimashi Oraon (deceased) rather real fact is that late Ghura Oraon had kept a woman from Kolda, who brought a child with her and that child is the plaintiff. It is denied that the plaintiff is agnatic relation of Jaimashi Oraon (deceased) rather real fact is that late Ghura Oraon had kept a woman from Kolda, who brought a child with her and that child is the plaintiff. The plaintiff being a cunning man managed to get his name entered in the revisional survey records, but he never came in possession nor he had any concern over the land of Ghura Oraon and his brothers. Therefore, the claim of plaintiff being in jointness with Kunjaria Oraon and Jaimashi Oraon does not arise. The defendant No.1 has full right to execute the deed of Ghardamadship and had a pious obligation of her husband who had kept defendant No.2 as Ghardamad since long, who is looking after all the cultivation work and is maintaining defendant No.1. Both Fuli and Premnica were married to different village but defendant No.2 and his wife Mary Orain were kept in the house by Jaimashi as Ghardamad who has acquired full rights of a son. It is contended that the deed of Ghardamadship is legal and binding. There is no question of any fraudulent inducement or foul play, hence, suit of the plaintiff is liable to be dismissed with cost. 6. On the basis of pleadings of the parties following issues were settled by the learned Trial Court for adjudication :- (i) Is the suit maintainable in its present form? (ii) Has the plaintiff got any cause of action for the suit? (iii) Is the suit is barred by law of limitation? (iv) Is the Genealogical table as given in Schedule "A" of the plaint correct? (v) Were the descendants of Mangra Oraon died in Jointness? (vi) Is the story of Ghardamadship set up by the defendants correct? (vii) Is the deed of Ghardamadship executed by the defendant No.1 in favour of defendant No.2, void, illegal and not binding? (viii) Is the plaintiff entitled to any relief? 7. In the course of trial, the plaintiff has examined nine witnesses: P.W.1 Mangal Aind, P.W.2 Haraknath Sahu, P.W.3 Ashwini Kumar Sinha and P.W.9 Shambhu Prasad are formal witnesses, P.W.4 Suleman Oraon is plaintiff, P.W.5 Daud Oraon, P.W.6 Biri Oraon, P.W.7 Lurku Singh and P.W.8 Tulu Oraon. 8. Apart from aforesaid oral testimony of witnesses following documentary evidence of plaintiff are as under :- Exhibit 1 to 1/p : Rent Receipts issued in the name of Suleman Oraon. 8. Apart from aforesaid oral testimony of witnesses following documentary evidence of plaintiff are as under :- Exhibit 1 to 1/p : Rent Receipts issued in the name of Suleman Oraon. Exhibit 2 : Plaint Exhibit 3 : Copy of order passed in Mutation Case No.9 R 27/74-75, Jewel Oraon vs. Suleman Oraon, whereby the mutation case was dismissed for want of permission. Exhibit 4 : Certified copy of khatian 9. On behalf of defendants following witnesses were examined: D.W.1 Juwel Tirkey (defendant himself), D.W.2 Emil Toppo is the scriber of deed of Ghardamadship (Ext.C), D.W.3 Hulasi Orain, D.W.4 Prabhu Oraon, D.W.5 Gunda Mahto Kumhar and D.W.6 Michael Kujur. 10. Apart from aforesaid oral testimony of witnesses, following documentary evidence has been adduced by defendants :- Exhibit A : Written statement Exhibit A/1 : Signature of S.P. Sharma, Advocate on Exhibit A. Exhibit B : Rent receipt Exhibit C : Deed of Ghardamadship dated 09.05.1974 executed by Hulasi Orain in favour of Jewel. Exhibit C/1 : Signature of scriber on Exhibit C. Exhibit D : Correction slip with signature of Satyanarayan Mishra on the M form. Exhibit E : Certified copy of banda parcha. 11. The learned Trial Court has taken up and adjudicated Issue No.(v) at first. The learned Trial Court after going through the oral and documentary evidence of the parties arrived at conclusion that admittedly both parties belong to Oraon community and governed by their own customs and rules. It was further held that in the Oraon community, there is presumption that on the death of head of family, the lands are generally divided wherein widow and unmarried daughter gets some share of property for maintenance till their life for remarriage. In the instant case, some property has also been mutated in the name of defendant Jewal Tirky vide Mutation Case No.5 R 27/1978-79 (Ext.D). Therefore, there is no presumption of jointness of the property as pleaded by the plaintiff. Therefore, this issue was decided against the plaintiff and in favour of defendant. While deciding the Issue Nos.(vi) and (vii), it was held on the basis of oral and documentary evidence as well as as per prevailing customs in the Oraon community that defendant No.2 has been rightly taken as Ghardamad and the deed of Ghardamadship (Ext.C) executed by defendant No.1 suffers from no illegalities and cannot be considered as void and not binding. Accordingly, aforesaid issues were also decided against the plaintiff and in favour of defendants. The other issues, i.e., Issue Nos.(i), (ii), (iii) and (viii) have also been decided against the plaintiff in view of findings recorded all four issues against the plaintiff and in favour of defendants. In the result, the suit of the plaintiff was dismissed. 12. The learned first Appellate Court in its first innings before remand from the High Court vide order passed in Second Appeal No.94 of 1980(R) mainly concentrated to decide whether the deed of Ghardamadship (Ext.C) was valid and whether the defendant No.1 had the right to execute any such deed. In this connection, it was held that the deed of Ghardamadship is valid in all respect because according to para 12 of the written statement, the defendant No.1 had the pious duty to confirm the act of her husband by executing a deed in favour of defendant No.2. The Appellate Court also discarded the findings of the Trial Court on the score that the two ingredients of Ghardamadship, i.e., Dhangarship and renunciation of Oraon's claim in natural father's property have not been fulfilled. Therefore, allowed the appeal and set aside the impugned judgment of trial court. 13. The High Court in Second Appeal No.94 of 1980(R), while remanding back the case before the first Appellate Court for passing afresh judgment following guidelines were issued :- (i) The defects of pleading in the written statement of defendant No.2 in connection with his adoption as Gharjamai/Ghardamad should be ignored in view of poor drafting prevalent in Muffasil Courts and should be taken flexible view in the matter. The admission of defendant No.2 Jewel Oraon appearing in his oral testimony regarding share in the property of his natural father should not be kept in mind while deciding the matter. (ii) The learned Appellate Court should keep in mind that merely by execution of Ghardamad deed by the (defendant No.1) wife of Jaimashi Oraon is not sufficient to create any right in favour of Ghardamad unless it is proved from other evidence that Jaimashi Oraon himself admitted the defendant No.2 as Ghardamad and decide the matter particularly in respect of decision on Issue No.6 settled and decided by the learned Trial Court. 14. 14. The learned first Appellate Court after remand of the case, decided first appeal afresh on following points :- (a) Whether plaintiff Suleman Oraon and Jaimashi Oraon were joint, if yes, how it will affect the suit? (b) Whether defendant No.2 was kept as Ghardamad by his father-in-law Jaimashi Oraon and whether the factum of Ghardamadship is true? (c) Whether judgment of learned Trial Court is fit to be confirmed or not? As regards point No.(a), the learned Appellate Court has recorded clear cut findings that the plea of jointness or partition has not been pleaded either by plaintiff or by defendant. Therefore, such type of issues was not required and any evidence beyond the pleading is also not fit to be considered. In spite of that decided the said point in favour of the plaintiff/respondents and the consequences of jointness has also been held against the defendant. 15. So far point No.(b) is concerned, the learned Appellate Court has relied upon customs prevailing in Oraon Community for adopting a person as Ghardamad on the basis of observation made by Hon'ble Patna High Court in the case of Jena Munda vs. Dukhan Pahan and Ors. reported in AIR 1948 Patna 10, para 5 of which reads as under :- "5. The learned Additional Judicial Commissioner, following the ruling reported in Naika Uraon v. Butna Uraon; A.I.R. 1930 Pat. 278, lays down five conditions for a ghardamad to succeed, namely, (1) that the father-in-law was sonless, (2) that the ghardamad lived in the house of the father-in-law for two years before his marriage; (3) that he was then married; to the daughter; (4) that there should be an intention all along in the minds of the parties that the status should be acquired; and (5) that the ghardamad had definitely given up his title to succeed to any property of his natural father. This was a case, however, not on the Munda custom, but on the Uraon custom. Practically the only authority on the Munda customs is Rai Bahadur S.C. Roy's book on the Mundas, and the Courts should therefore have confined them-selves to what was laid down in that book and to the evidence. Neither in the book nor in the evidence is any condition specified that the marriage must have taken place after the death of the son. What the Rai Bahadur says is, at p.433. Neither in the book nor in the evidence is any condition specified that the marriage must have taken place after the death of the son. What the Rai Bahadur says is, at p.433. The gor jonrea or ghar-dijoa who lived with his sonless deceased father-in-law till the death and assisted him in the cultivation and other affairs till his death, will get all the movable property left by the deceased, and such share of the real property, if any, as according to the circumstances the panch may think it proper to give him, the rest going to the nearest male agnate or agnates. If then we ignore the fact that Jena was married to the daughter before the death of the son, and not adopted as a ghardamad until after the death of the son some years after the marriage, it is apparent that the Courts below have really arrived as the necessary findings in-favour of the appellant." 16. The above conditions were considered by the Appellate Court in the light of oral evidence of the parties, particularly the evidence of defendant No.2 Jewel Oraon who has admitted that Jaimashi had one son and other children were also born to him but died in quick succession. He also admits that after death of son of Jaimashi, he went to the house of Jaimashi. Thereafter, his wife was born but the learned Appellate Court found that in presence of a son, Jaimashi could not adopt a Ghardamad and the story projected by the defendant No.2 appears to be not reliable. Therefore, arrived at conclusion that the defendant has failed to prove Ghardamadship from Jaimashi. In view of specific decision on point Nos.(a) and (b), the point No.(c) was also decided in favour of plaintiff and against the defendants. Accordingly, suit of the plaintiff was decreed which has been challenged in this appeal. 17. Present Second appeal was admitted vide order dated 08.12.1993 on following substantial questions of law :- (i) Whether the conditions set out by the lower Appellate Court for adoption of a person as Ghardamad in Oraon tribe are valid and based on any established customs and/or judicial pronouncements? (ii) Whether the findings of the Court below are unsustainable in law because of having been arrived at on the basis of conjecture and surmises? 18. (ii) Whether the findings of the Court below are unsustainable in law because of having been arrived at on the basis of conjecture and surmises? 18. Learned counsel for the appellants has relied upon following grounds for setting aside the impugned judgment and decree of reversal passed by learned first Appellate Court. (i) The learned Appellate Court failed to properly appreciate the directions/observations made by the Hon'ble High Court passed in S.A. No.94 of 1980(R) and has ignored virtually all the directions. The learned Appellate Court has made no observation on any of the point settled to be decided as to what was the direction of the Hon'ble Court and how he has meted out with such direction. (ii) There was observation of the Hon'ble Court while remanding the case for fresh decision that loose drafting should be ignored as pleaded by the defendant, the frivolous admission appearing in evidence of defendant should be ignored and particularly the Issue Nos.6 should be decided on the basis of prevailing customs and law in the light of evidence adduced by parties. (iii) The learned Appellate Court has miserably failed to meet out with the reasons of the learned Trial Court while deciding the main Issue No.5 and 6 while dismissing the suit of the plaintiff and based its finding only on the basis of conjecture and surmises. The learned Appellate Court delving into the matter of jointness or separation of the property between Jaimashi and the plaintiff at the time of his adoption as Ghardamad has travelled beyond the materials available on record. (iv) The basis for decision by the learned Appellate Court regarding validity of the adoption of defendant No.2 as Ghardamad in reported judgment in the case of Jena Munda (supra) is not conclusive in nature. (v) Defendant No.2 was brought to the house of Jaimashi since long long ago and was working in his house as a Dhangar with intention to keep him as Gharjamai. Subsequently, other two younger daughters of Jaimashi have been married and residing in their matrimonial home respectively but since childhood and after marriage with the eldest daughter of Jaimashi, i.e., Mary Orain, the husband, defendant No.2 Jewel Oraon, has renounced all connection with his natural family and residing at Village Chetar and out of his wedlock as a Ghardamad children have been born who are also residing at Village Chetar. (vi) The deed of Ghardamadship was executed by wife of Jaimashi in the year 1974 in a token of confirming the Ghardamadship of the defendant No.2 which has already happened during lifetime of her husband Jaimashi. In view of above submissions, therefore, it is prayed that impugned judgment and decree passed by first Appellate Court is liable to be set aside and the judgment and decree passed by the Trial Court deserves to be restored. Accordingly, this appeal may be allowed. 19. On the other hand, learned counsel for the respondents/plaintiff has opposed the aforesaid points of argument raised on behalf of appellants and submitted that the learned Trial Court has committed error of law in dismissing the suit but the learned first Appellate Court has considered the matter in threadbare manner as per observations and directions given by the Hon'ble High Court in Second Appeal No . 94 of 1980(R) which suffers from no illegality or infirmity. The substantial questions of law formulated in this appeal have no leg to stand. This appeal has no merit and fits to be dismissed. 20. I have gone through the judgment of Trial Court as well as the first Appellate Court after remand of the Second Appeal No.94 of 1980(R). 21. It appears that at the time of remand, there was direction to ignore the poor pleadings of the defendant and also his evidence regarding some properties given to him from his original family and decide the Issue No.6 settled by the learned Trial Court in right perspective in accordance with law. The Appellate Court has again entered into the question of jointness of the property in spite of recording definite findings that such type of exercise is not relevant for deciding the Ghardamadship of defendant No.2. The Appellate Court has formulated a point [k corresponding to Issue No.6 settled by learned Trial Court. The Appellate Court placing reliance upon reported judgment in Jena Munda (supra) relied upon para No.5 of the said judgment wherein the law prevailing among Oraon community in respect of Ghardamadship has been discussed as propounded in the case of Naika Uraon vs. Butna Uraon, AIR 1930 Patna 278, the following five conditions have been laid down for a Ghardamad to succeed, namely :- (i) that the father-in-law was sonless. (ii) that the ghardamad lived in the house of the father-in-law for two years before his marriage. (ii) that the ghardamad lived in the house of the father-in-law for two years before his marriage. (iii) that he was then married to the daughter. (iv) that there should be an intention all along in the minds of the parties that the status should be acquired. (v) that the ghardamad had definitely given up his title to succeed to any property of his natural father. 22. A book title " The Oraon's of Chota Nagpur " authored by S.C. Roy has also been relied upon wherein at page No.229, it is said that " if there is no male issue or adopted son, but only a Ghar-damad duly adopted into the house as a ' prospective son-in-law ' by the last male owner or even by his widow and since married to a daughter of a deceased and living in the house, - the rajhas lands left by the deceased male owner shall on the death of the widow go to such ghardamad and the bhuinhari lands shall go to the nearest male agnate or agnates. As regards agnates, it is also mentioned in the said book at the same page as under: Agnates If an Oraon owner of property dies leaving neither a son (either born of him or duly adopted) nor any lineal male descendant of such a son nor a ghardamad adopted into the house as a prospective son-in-aw, the property shall go to the nearest male agnate or agnates --------------- 23. It appears from the pleadings of the parties particularly the written statement of defendants and the evidence of defendant No.2 during trial that he was brought by Jaimashi after death of his son and several other children born to him who died in quick succession. He was looking after the cultivation and providing other assistance and residing there since long. Thereafter, he was married with eldest daughter of Jaimashi and he was also treated as Ghardamad by Jaimashi and his wife since after solemnizing marriage more than 30 years ago, he is still residing at his sasural giving up all relationship with original family. Although, some contradictions and discrepancies have appeared in his evidence which has been stretched much by the Appellate Court and made the basis for disbelieving the case of defendant. Although, some contradictions and discrepancies have appeared in his evidence which has been stretched much by the Appellate Court and made the basis for disbelieving the case of defendant. The execution of registered document regarding Ghardamadship (Ext.C) has also been found invalid on the ground that it was executed when the plaintiff was not providing lands to defendant No.2. Such type of reasoning given by the first Appellate Court beyond the specific directions issued by the Hon'ble High Court while deciding the Second Appeal No.94 of 1980(R), appears to be absolutely absurd. The learned Appellate Court has miserably failed to comply with the observations made by the Hon'ble High Court to ignore the defects of pleadings and some part of admissions appearing in evidence of defendant No.2, due to rustic illiterate persons belonging to tribal community. The learned Appellate Court has also ignored the very vital fact admitted by the plaintiff/respondent himself that he is not maintaining to defendant No.1 after death of her husband Jaimashi because she has adopted Ghardamad. Therefore, I find substance in the points of argument raised on behalf of appellant that there is no sound principle of law or custom putting any restriction on execution by wife of Ghardamadship in token of recognition to the earlier adoption of the Ghardamad by her husband during life time. The plaintiff has instituted the suit only on apprehension that he might be deprived from the property of Jaimashi and no any valid reasons were pointed out towards legality of the Ghardamadship. 24. In view of above discussions and reasons, I arrived at definite conclusion that the learned Trial Court after considering all the aspects of the case and the law applicable to the parties decided Issue No.6 against the plaintiff and in favour of defendants while dismissing the suit. The learned Appellate Court has committed serious illegality by pressing its judgment only on conjecture and surmises ignoring the material facts which conclusively prove the Ghardamadship of the defendant No.2 in the family of Jaimashi during his life time and subsequently, recognized by his wife in token of respect to her husband by executing the Ghardamadship (Ext.C). Therefore, the judgment and decree of reversal passed by learned first Appellate Court is absolutely beyond the weight of evidence adduced in the case and fit to be set aside. Therefore, the judgment and decree of reversal passed by learned first Appellate Court is absolutely beyond the weight of evidence adduced in the case and fit to be set aside. Therefore, the judgment and decree passed by learned Appellate Court is hereby set aside and judgment and decree passed by learned Trial Court is restored. Accordingly, this appeal is allowed on contest. Both parties shall bear their own cost. 25. Pending I.As., if any, also stand dismissed. 26. Let a copy of this judgment along with Trial Court record be sent back to the concerned Trial Court for information and needful.