Sushil Minz vs Mukut Ajay Dan Minz Son Of Late ...
2022 Latest Caselaw 647 Jhar

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   S.A. No. 149 of 2004

1.   Sushil Minz
2.   Nirmal Minz
     Both sons of Late Basant Minz
3.   Subhash Minz
4.   Bishram Minz
5.   Nemhas Minz
     No. 3 to 5 all are sons of Late Jakaria Minz, all resident of village- Rani
     Khatanga, P.S. Bero, Dist- Ranchi.
                                              ..... .....            Appellants
                                 Versus
1.    Mukut Ajay Dan Minz son of Late Biraj Minz, resident of village- Rani
      Khatanga, P.O. & P.S. - Bero, Dist- Ranchi at present Civil Judge, 1st
      Class & Chief Judicial Magistrate, Sidhi, Madhya Pradesh.
2.    Kalyan Minz
3.    Yakub Minz
      Both 2 & 3 sons of Daniel Minz.
4.    Sunil Minz.
5.    Anil Minz
      Both 4 & 5 are sons of late Bardan Minz,
6.   Angelina Minz W/o. Late Bardan Minz.
     All residents of village- Rani Khatanga, P.O. & P.S.- Bero, Dist- Ranchi.
7.   Anil Minz
8.   Manish Minz
     Both 7 & 8 sons of Bairaj Minz @ Amar Prabal Minz, resident of Jokari
     Tahsil, P.O. & P.S.- Kunkuri, Dist- Jaspur (Chhatisgarh), resident of
     village- Rani Khatanga, P.O. & P.S.- Bero, Dist- Ranchi
     No. 7 at present residing at Birmitrapur, Dist- Sundergarh, Orissa.
     No. 8 at present resident at Jaspur Nagar, Dist- Raigarh, Madhya Pradesh.
9.   Deputy Commissioner, Ranchi.
                                               .... ....              Respondents
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CORAM :HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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For the Appellants : Mr. Neil Abhijit Toppo, Advocate For the Respondents : Mr. Jayant Franklin Toppo, Advocate

CAV ON 09.02.2022 PRONOUNCED ON 23 .02. 2022

1. Appellants are the legal representatives of the defendants who have preferred the instant appeal against the judgment and decree passed by 5th Additional Judicial Commissioner, Ranchi in Title Appeal No. 104/89 affirming the judgment and decree dated 08.09.1989 in Title Suit No. 94/281 of 1983-87.

2. Parties shall be referred to their original placement in the suit and will included their LRs.

3. The plaintiff Mukut Ajay Dan Minj and others filed the suit for declaration of title over the suit land fully described in Schedule C of the plaint, confirmation of possession or if in the alternative not found in possession then for recovery of possession. Further, in the alternative in the absence of partition, for decree of partition, for the plaintiff's half share of the property shown in Schedule E of the plaint.

4. The case of the plaintiffs is that both the sides are members of Schedule Tribes and are governed by their customary law of succession which does not recognize right of inheritance of daughter or the widows.

5. The plaintiffs have given genealogical table which is as follows:-

Lakho Daud (dead) ↓ _________________________________________________________ ↓ ↓ ↓ Zakaria Chamra Chatua alias Kristogrih (dead) Paulus (dead) (dead) ↓ ↓ ↓ Matlu Minz (dead) Puran (dead) Santosh (dead) ↓ ↓ ↓ Zakaria Minz Kristo Biraj Minz (defendant) (dead) (dead) ↓ ______________________________________ ↓ ↓ ↓ ↓ ↓

Theophil Kunwar Mical Israil ↓

________________________________________ ↓ ↓ ↓ Mukut Ajay Dan Minz Anil Minz Amar Prabal (Plaintiff No.1 (Plaintiff No. 2) Minz (Plaintiff no. 3)

According to the genealogical table, deceased Lakho Oraon (Lakho Daud) was the common ancestor of the plaintiffs and defendant no. 1 who died much before the cadastral survey operation leaving behind three sons namely (i) Zakariya Chamra (ii) Chatua @ Paulus and (iii) Kristogrih. After his death Chatua @ Paulus separated himself from the Joint family before the cadastral survey, the Cadastral Survey record of rights were prepared accordingly. The branch of Zakaria and Kristogrih were joint before the Cadastral Survey and hence the land of Khata no.17 of Rani Khatanga and

lands of Bhuihari Khata no.124 under Khewat no.9/1 was recorded jointly in the name of Zakaria Chamra and Biraj Minj. Kristogrih also died prior to the cadastral survey leaving behind only son Santosh. Santosh also died leaving behind only son Biraj Minz. Biraj Minz also died in the year of 1971 leaving behind three sons namely Mukut Ajay Oraon Minz, Anil Minz and Amar Prabal Minz who are plaintiff nos. 1, 2 & 3 respectively. Zakaria Chamra also died after cadastral survey leaving behind his only son Matlu. Matlu also died prior to the revisional survey leaving behind one son Zakaria Minz who is defendant no. 1. Chatua @ Polous also died after cadastral survey leaving behind only son Puran and Puran also died leaving behind his only son Kristo and Kristo also died leaving behind four sons namely Theophil, Kunwar, Mycal and Israil. Theophil also died.

6. Further case of the plaintiff is that as the branches of Zakaria Chamra and Kristogrih were joint before cadastral survey hence the land of khata no. 17 of village Rani Khatanga and the lands of Bhuinhari Khata no. 124 under khewat no. 9/1 was recorded in the joint name of Zakaria Chamra and Biraj Minz, respectively. Further the case of plaintiff is that after the death of Zakaria chamra, suit land devolved upon Maltu son of Zakaria Chamra, jointly with Biraj Minz. After the death of Maltu, Zakaria Minz defendant inherited the interest of his deceased father Zakaria Chamra and he also came in joint possession with Biraj Minz. During the revisional survey, the lands of C.S. khata no. 17 which corresponds to R.S. khata no. 23 was recorded in the joint name of Zakaria Minz and Biraj Minz. Similarly, the lands of cadastral khata no. 124 of khewat no. 9/1 corresponding to R.S. khata No. 148 of R.S. Khewat No. 11/1 was recorded in the joint name of Zakaria Minz and Biraj Minz during the revisional survey and as such Zakaria Minz and Biraj Minz was in joint possession over the lands of cadastral survey khata no. 17 corresponding to revisional survey khata no. 23 and cadastral survey khata no. 124 under khewat no. 9/1 corresponding to revisional khata no. 149 under khewat no. 11/1 being bhunhari land was in joint possession of them. After the death of Biraj Minz, the plaintiffs inherited their interest and came in joint possession with the defendant no. 1.

7. The case of the defendant no. 1 in brief is that the plaintiffs are not entitled to get any relief since they have been ousted from the suit land for more than 12 years. It is the case of the defendant no. 1 that Lakho @ Lakhwa

was a Bhuinhar of village Rani Khatanga along with many other agnate including one Santosh held Bhuinhari tenure in village Rani Khatanga and his interest was inherited by his three sons namely Zakaria Chamra, Chutwa @ Paulus and Kristogrih. Paulus himself separated from his brothers immediately after the death of his father, who had died before cadastral survey and he partitioned the properties. Kristogrih died before cadastral survey and as such his interest in the ancestral property being 2/3rd share therein devolved upon his full brother Zakaria Chamra exclusively. Zakaria Chamra had also acquired about 17 acres land. Polus had also acquired land about 10 acres. Santosh Oraon was also a Bhuinhar of the same Khunt through distant agnate. Santosh died before cadastral survey having an infant son Biraj. The wife of Santosh had died earlier. Hence Biraj was looked after the Missionaries at Deepatoli and he was brought there up to the age of 10 years and thereafter Zakaria Chamra requested to bring Biraj in his house and due to affection Zakaria Chamra also got the name of Biraj entered in the cadastral survey record of rights for the land measuring an area of one acre. Thereafter Biraj was admitted in G.E.L. Mission School, Ranchi along with the grandson of Zakaria Chamra. Zakaria Chamra died just after cadastral survey leaving behind his son Matlu who had no love and affection for Biraj, hence Biraj left his house and with the help of missionaries went to Jaspur in the year of 1915. Biraj never returned to his house situated in village Rani Khatanga from Jaspur. Since 1915 the disputed land was coming in possession of Zakaria Chamra and on his death, in possession of Matlu and on the death of Matlu defendant no. 1 is coming in exclusive possession over the suit land to the knowledge of all concerned. The defendant no. 1 was also recognized as tenant after vesting Zamindari in the State of Bihar. The averment of partition as pleaded by the plaintiffs has been denied by the defendant no. 1 and it is claimed that suit land as own land and in exclusive possession over the same and the plaintiffs are also stranger and thus plaintiffs are not entitled to get the suit land partitioned.

8. It is admitted position that Lakho was the common ancestor having three sons as mentioned above in the genealogical table and one of the three sons Paulus himself separated from his brothers immediately after the death of his father. The focal point of dispute is whether Santosh the predecessor-in-interest of the plaintiffs was the son of Kristogrih or that

Kristogirh died issueless and his 2/3rd share devolved on his full brother Zakaria Chamra the grandfather of Defendant no.1.

9. The learned trial court framed the following issues:-

i. Is the suit of plaintiffs as framed maintainable? ii. Have the plaintiffs' valid cause of action for the suit? iii. Whether the plaintiffs are the sons of Biraj, grandsons of Santosh and great grandsons of Kristogrih one of the three sons of Lakho? iv. Whether Santosh comes froma distant family or was the family of Lakho and Zakaria Chamra, the defendants' ancestor? v. Whether the plaintiffs' father Biraj and Zakaria were joint possession of the property in suit after the death of Biraj, the plaintiffs came in joint possession with the defendant no. 1? vi. Whether the plaintiffs have lost their title and defendant has perfected his title by way of adverse possession over the property in suit?

vii. Whether any partition was done in between the parties in which schedule-C of the property was allotted to the plaintiff and Schedule-D property to the defendant.

viii. Whether any unity of title and possession exists between the parties or not?

ix. To what relief or reliefs, if any, the plaintiffs are entitled?

10. The plaintiff's suit has been decreed by the trial court for half share in the properties detailed in schedule E of the plaint by recording the following findings of fact:

Firstly, Kristogrih was one of the three sons of Lakho Daud who died leaving behind the only son Santosh. Santosh died leaving behind Biraj, the plaintiff's father who was his only son. Plaintiffs are not strangers and they are from the same and one family to which the defendants belong.

Secondly, the plea of adverse possession was rejected and it was held that plaintiffs are also the co-sharers with the defendant to the extent of half share and as such are entitled for declaration of the right over the properties in suit shown in Schedule E of the plaint.

Thirdly, the case of the plaintiff of partition and separation in 1978 was not accepted but it was held that they were entitled for recovery of their share to the extent of half share of the properties.

11. The court of appeal while affirming the judgment and decree of the trial court concurred with the findings of fact recorded by the trial court inter alia on the following grounds :

Firstly, the plaintiffs have failed to prove their case on adverse possession more so when they are the co-owners they cannot claim title by adverse possession.

Secondly, in para 7 of the written statement presented on 24.3.84 it had been admitted that Kristogrih was the brother of Zakaria Chamra. Later on certain amendments were made that Kristogrih did not belong to the family of Lakho Oraon.

Thirdly, there is a presumption of correctness of entries in the record of rights. Name of Biraz Minz was entered in the cadastral survey record of rights marked as Ext. Nos. 13/A, 14/A and 14/C. Contrary to deposition of Defendant no.1 (DW-10) and his son DW-9 name of Santosh is entered in the Bhuinhari survey record of right marked as Ext.-15.

Fourthly, while denying that Santosh was the son of Kristogrih D.Ws. 9 and 10 have not disclosed who was his father.

Fifthly, it has been admitted by that after vesting Zamindari in the state of Bihar, the name of Biraj was duly mutated.

Sixthly, Ext.-8 series are letters with defendant no.1 showing his relation with the plaintiff. These letters have not been disproved by the defendant.

Seventhly, the oral evidence on behalf of the plaintiff has been disbelieved as they appeared to be tutored.

Eighthly, in view of the ratio laid down in AIR 1971 Patna 249, there is a presumption of continuity of possession of persons recorded in the record of rights and as such it must be presumed that Biraj was coming in possession and after him the plaintiffs came in possession.

Ninthly, even in case of non-participation of rent and cultivation, no ouster can be presumed in the light of ratio laid in Karbalai Begum Vs Md Sayeed and in 1981 BLT Supreme Court page 139.

12. The appeal has been preferred on the ground that no issue was framed by the Court below regarding previous partition. Whether the plaintiffs are not strangers in view of the record of rights showing Santosh as a separate Bhuinhar.

13. The questions raised in appeal lie in the realm of question of fact and not on questions of law, far less question of substantial question of law. Basic plea of defence that Santosh was not the son of common ancestor has thoroughly been demolished not only by the record of right entries Ext.-15 wherein the entries have been shown to be made in favour of Jakaria Chamra defendant's ancestor and Santosh. DW-9 has admitted that Bhuinhari record of right is also made in favour of Santosh. Trial Court has noted that Bhuinhari lands of Khata no.124 have been recorded in the cadastral survey vide Ext.-14 and in Revisional survey under Khewat no. 11/1 (Ext13/a) in favour of Both Jakaria and Biraj in equal share. In the cadastral survey record of right of both the lands of which Ext 14/b shows that raiyati lands of kahat no.17 have been shown to be in item no.1 of the Schedule A of the plaint. The cadastral survey operation was completed and finally published in 1911. Thus, extract of cadastral survey record of rights and Ext.14-B and Bhuinhari Survey of 1869 (Ext.-15) shows that Santosh was the son of Kristogirhi. Ext 13 and 14 which are the extract of the cadastral survey Khewat no.9/1 and the Bhuinhar lands under Khata no.124 also show Biraj son of Santosh to be a tenant jointly recorded with said Jakaria Chamra.

14. The question whether plaintiffs were the heirs and descendants of Kristogrih and whether the suit land was jointly recorded in the name of predecessor-in-interest of plaintiffs and defendants are essentially a question of fact regarding which there is a concurrent finding of fact of both the lower courts. Civil Procedure Code does not envisage a third Court of fact and this Court cannot enter into reappreciation of evidence for determining the question of fact.

I find that there is no substantial question of law to admit this appeal and accordingly it is dismissed at the admission stage itself with cost.

(Gautam Kumar Choudhary, J.)

Jharkhand High Court, Ranchi Dated the 23rd February, 2022 NAFR / AKT