(D) Joseph Kujur vs Lohra Oraon
2023 Latest Caselaw 656 Jhar

                                        1

          IN THE HIGH COURT OF JHARKHAND AT RANCHI
                      S.A. No. 47 of 1998(R)

     1.(a) Santosh Kujur
     1.(b) Benedick Kujur
     1.(c) Pascal Kujur
      1.(d) Joseph Kujur
       3(a) Durga Oraon
        (b) Bikharam Oraon

                                                                   ......   Appellants
                           Versus
      1. Lohra Oraon
      2.Sukhram Oraon
      3. Charo Oraon
      4. Ghasia Oraon
      5. Budhram Oraon
      6. Jhora Oraon
      7. Gandur Oraon
      8. Lagnu Oraon
      9. Handia Oraon
      10. Sukra Oraon
      11. Domra Oraon
      12. Budhu Oraon
      13. Deputy Commissioner, Gumla                      ...... Respondents
                   ---------

CORAM:      HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
                          ---------
For the Appellants         : Mr. Abhilash Kumar, Advocate
For the Respondents        : Mr. P.R. Rochan, Advocate

11/Dated: 08/02/2023

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. 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 judgement 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. 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. 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. 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 bonafide 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/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. Pairo Orain marked ExhibitA 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 judgement 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 inlaws 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 V. 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 judgement 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 judement 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.

( Sanjay Kumar Dwivedi, J.) Satyarthi/