Jharkhand High Court

Chumna Oraon vs Budhu Oraon on 25 November, 2024

Author: Anil Kumar Choudhary

Bench: Anil Kumar Choudhary

IN THE HIGH COURT OF JHARKHAND AT RANCHI
               S.A. No.247 of 2019
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1. Chumna Oraon, aged about 55 years

2. Risha Oraon, aged about 43 years both sons of late Nanda Oraon, resident of Village-Tonka, P.O. & P.S.- Jagarnathpur, Dist.-Ranchi

.... .... .... Appellants Versus

1. Budhu Oraon

2. Chamar Oraon, nos. 1 and 2 are sons of late Ram Oraon

3. Saku Oraon

4. Bhima Oraon, nos. 3 and 4 are sons of late Domai Oraon

5. Lachhu Oraon, son of late Chamar Oraon

6. Bulu Oraon, son of late Chamar Oraon

7. Balku Oraon, son of late Ghasi Oraon All resident of Village-Tonko, P.O. & P.S.-Jagarnathpur, Dist.-Ranchi

8. The Deputy Commissioner, Ranchi, P.O.-G.P.O., P.S.-Sadar, Dist.- Ranchi ... .... .... Respondents

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For the Appellants : Mr. Altaf Hussain, Advocate

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PRESENT HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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By the Court:- Heard the learned counsel for the appellants.

2. This second appeal has been preferred under Section 100 of

Code of Civil Procedure against the judgment and decree of

concurrence dated 30.04.2019 passed by the learned Additional

Judicial Commissioner-XI, Ranchi in Civil Appeal No. 40 of 2015

by which the learned first appellate court dismissed the appeal;

after finding no illegality in the judgment and decree impugned

before it passed by the learned Sub Judge-V, Ranchi in Title Suit

No. 136 of 2001 dated 12.08.2015.

3. The brief fact of the case is that the plaintiff-appellants filed

Title Suit No. 136 of 2001 with the prayer for declaration of title

over the suit land.

4. The case of the plaintiffs in brief is that the parties to the suit

are by caste Oraon and members of Scheduled Tribes, governed by

Oraon customary law, in the matter of inheritance and succession,

according to which the male having no issue can have a Ghardamad

and Ghardamad will have right to inherit the property of his father-

in-law. The suit land stood recorded in the name of Tuma Oraon @

Chhota Thuma Oraon having one share and Mahadeo Oraon as

well as Gore Oraon together one share; during the revisional

survey of Record of Rights. Sometime, after revisional survey

Record of Rights was published, Mahadeo Oraon and Gore Oraon

left village and went to Assam and never returned to the village.

Their whereabouts is also not known since 1948 hence, it

deemingly assumed that they are dead. Since 1948 Tuma Oraon @

Chhota Thuma Oraon became sole and exclusive owner of the suit

land. Tuma Oraon @ Chhota Thuma Oraon has no male issue.

Tuma Oraon @ Chhota Thuma Oraon inducted the plaintiff to his

house with intention to make him his Ghardamad later on by

getting him married with the daughter of Tuma Oraon @ Chhota

Thuma Oraon. The plaintiff used to help Tuma Oraon @ Chhota

Thuma Oraon in cultivation. After attaining majority, the plaintiff

married Madia Oraon- the daughter of Tuma Oraon @ Chhota

Thuma Oraon and lived in his father-in-law's house as Ghardamad.

After the death of Tuma Oraon @ Chhota Thuma Oraon, in the

year 1958 the plaintiff inherited the suit land and since then he has

been cultivating the suit land. The defendant nos.1 to 6 are in no

way related to Tuma Oraon @ Chhota Thuma Oraon. In the month

of April, 2001 the defendants jointly tried to forcibly dispossess the

plaintiff from suit land hence, the plaintiff filed the suit.

5. The defendant nos.1 and 2 in their written statement

challenged the maintainability of the suit on various technical

grounds and further pleaded that earlier Madia Orain and her

sister namely Maino Orain filed Title Suit No. 164 of 1978 in the

court of Munsif for the similar relief against these defendants with

respect the suit land and the same was withdrawn by them. Prior

to filing Title Suit No. 164 of 1978, the said Madia Orain and Maina

Orain also filed the case under Section 145 Cr.P.C. vide Misc. Case

No. 1369 of 1978 with respect to the suit property, in which the

Executive Magistrate found the defendants to be in possession of

the suit land. These defendants pleaded that the plaintiff was

never in possession of the suit land nor he is the Ghardamad of

Tuma Oraon @ Chhota Thuma Oraon. The defendants further

pleaded that there is no person namely Balku Oraon son of late

Ghasi Oraon in the family of the defendants or Tuma Oraon @

Chhota Thuma Oraon. These defendants then pleaded that Saklu

Oraon and Bhima Oraon have no relationship with the recorded

tenant Tuma Oraon @ Chhota Thuma Oraon hence, they are not

necessary parties to the suit.

6. The defendant nos. 5 (a) and 5 (b) filed a separate written

statement supporting the claim of the plaintiffs but they did not

adduce any evidence.

7. On the basis of rival pleadings of the parties, the learned

trial court settled the following eight issues:-

(i) Is the suit maintainable in its present form?

(ii) Is there any valid cause of action for the suit?

(iii) Is the plaintiff a Ghardamad of Thuma Oraon alias Chhotka Thuma Oraon and inherited the suit land after the death of Thuma Oraon in the year 1958?

(iv) Is the suit undervalued and market price of suit land is not less than rupees thirty lacs?

(v) Is the suit barred by limitation?

(vi) Is the suit barred by adverse possession?

(vii) As to whether plaintiff is entitled for declaring his title over the suit land?

(viii) As to what reliefs the plaintiff is entitled to?

8. In support of their case, the plaintiffs examined altogether

seven witnesses and proved documents which have been marked

Ext. 1 to Ext. 2/a. On the other hand, from the side of the

defendants nine witnesses were examined and the defendants also

proved the documents which have been marked Ext. A to Ext. H.

9. The learned trial court first took up issue nos. (iii) and (vii)

together and after considering the evidence in the record came to

the conclusion that the plaintiff was not adopted as Ghardamad and

has not acquired right, title and interest in the suit property and

decided the issue nos. (iii) and (vii) against the plaintiff. The

learned trial court next took up issue no. (vi) and considering the

evidence in the record came to the conclusion that the defendants

failed to establish that they are in possession of the suit property

for more than 30 years, at the time of filing of the suit therefore,

they have not perfected their right, title and interest over the suit

property and decided the said issue against the defendants. The

learned trial court next took up the issue nos. (i) and (ii) and

considering the materials in the record came to the conclusion that

since the defendants have raised an objection that the suit is simply

filed for seeking of declaration of suit property and no relief of

possession has been sought for though the defendants are in

possession of the suit property hence, held that simple suit for

declaration is not maintainable and the plaintiff has no valid cause

of action. Lastly, the learned trial court took up issue nos. (iv), (v)

and (viii) together and disposed of the said issues as not pressed

and dismissed the suit.

10. Being aggrieved by the judgment and decree passed by the

learned trial court, the plaintiffs filed Civil Appeal No.40 of 2015

in the court of Judicial Commissioner, Ranchi which was

ultimately heard and disposed of by the learned first appellate

court.

11. The learned first appellate court on the basis of the materials

in the record and the submissions made before it, formulated the

following three points for determination:-

(i) Whether plaintiff Nanda Oraon was adopted as Ghardamad by recorded tenant Thuma Oraon?

(ii) Whether the plaintiff inherited suit land after death of Thuma Oraon?

(iii) Whether the plaintiff inherited the right, title, interest and possession over the suit land as claimed by the plaintiff?

12. The learned first appellate court made independent

appreciation of the evidence in the record and concurred with the

findings of the learned trial court that the plaintiff has failed to

prove his case by the oral and documentary evidence, that he is

adopted as Ghardamad by the recorded tenant Tuma Oraon @

Chhota Thuma Oraon as such he cannot inherit the suit property

standing in the name of the recorded tenant - Tuma Oraon @

Chhota Thuma Oraon hence, he is not entitled for declaration of

his right over the suit land after not finding any illegality and

dismissed the appeal.

13. It is submitted by the learned counsel for the appellants that

both the courts below have adopted a double standard in

appreciation of the evidence and the evidence in the record has not

been properly appreciated by both the courts below. It is next

submitted by the learned counsel for the appellants that both the

courts below have failed to take into consideration the admission

made by the defendant no.5 (a) and 5 (b). It is further submitted by

the learned counsel for the appellants that both the courts below

have failed to take note of the fact that the learned trial court ought

to have framed issue as to whether the defendant nos. 1 and 2 are

agnates of the record tenant- Tuma Oraon @ Chhota Thuma Oraon

which it neither did nor decided the same. Hence, it is submitted

that the judgment and decree passed by both the courts below be

set aside and the suit of the plaintiff be decreed after formulating

appropriate substantial question of law.

14. Having heard the submissions made at the Bar and after

carefully going through the materials in the record, so far as the

contention of the appellants that no issues were framed regarding

as to whether the defendant nos.1 and 2 are the agnates of the

recorded tenant- Tuma Oraon @ Chhota Thuma Oraon is

concerned, it is pertinent to mention here that the plaintiff filed the

suit for declaration of right, title and interest so it being a settled

principle of law that the plaintiff has to stand on his own legs and

he cannot take the support of the weakness of the case of the

defendant. It was incumbent upon the plaintiff to establish that

how he acquired right over the suit land. The claim of the plaintiff

over the suit land is on the basis of his case that he was the

Ghardamad of recorded tenant- Tuma Oraon @ Chhota Thuma

Oraon. Both the courts below have returned to the concurrent

finding of fact that the plaintiff has failed to establish that he is the

Ghardamad of the recorded tenant inter alia on the evidence in the

record that the name of the plaintiff appears in the voter list of

village Oberia and Tonko and the plaintiff cultivates the land of his

biological father at Oberia. The last rites of the wife of the plaintiff

was performed at Oberia and thus the plaintiff has not severed his

relationship with his natural father and on this basis, the courts

below have come to the conclusion that the plaintiff has failed to

establish that he is the Ghardamad of the recorded tenant- Tuma

Oraon @ Chhota Thuma Oraon. As the plaintiff has failed to

establish the very basis of the claim of his title that he is the

Ghardamad, so whether or not the defendants are related to Tuma

Oraon @ Chhota Thuma Oraon is irrelevant because in a suit, the

title of the plaintiff is to be decided and not that of the defendants

and as the plaintiff has failed to establish his title, the suit has to

fall and it has rightly fell. Hence, this Court does not find any merit

in this contention of the learned counsel for the appellants.

15. So far as the contention of the learned counsel for the

appellants regarding the admission made by the respondent nos. 5

(a) and 5 (b) are concerned, it is needless to mention here that the

defendant nos.1 to 4 were contesting defendants. Since they denied

the title of the plaintiff so obviously the plaintiff has to establish his

title by adducing cogent evidence. Having failed to do so, the

statement in support of that given by the respondent nos. 5 (a) and

5 (b) in their written statement through the averments made by the

plaintiff in their pleading will not be of any help to the plaintiff.

Hence, this limb of the argument by the learned counsel for the

appellants has also no merit.

16. So far as the contention of the learned counsel for the

appellants regarding evidence in the record, having not been

properly appreciated by both the courts below is concerned, it is

pertinent to mention here that it is a settled principle of law that in

exercise of the power under Section 100 of Code of Civil

Procedure, the High Court cannot interfere with the finding of fact

recorded by the first appellate court which is the final court of fact,

unless the same is found to be perverse as has been held by the

Hon'ble Supreme Court of India in the case of Gurvachan Kaur

and Others v. Salikram (Dead) through LRs. reported in (2010) 15

SCC 530, paragraph no.10 of which reads as under:-

"10. It is settled law that in exercise of power under Section 100 of the Code of Civil Procedure, the High Court cannot interfere with the finding of fact recorded by the first appellate court which is the final court of fact, unless the same is found to be perverse. This being the position, it must be held that the High Court was not justified in reversing the finding of fact recorded by the first appellate court on the issues of existence of landlord-tenant relationship between the plaintiff and the defendant and default committed by the latter in payment of rent." (Emphasis supplied)

17. Now coming to the facts of the case, the concurrent finding of

facts has been arrived at by both the courts below by not ignoring

any admissible evidence or relying upon any inadmissible

evidence nor the findings are based on no evidence. Further, the

findings cannot be termed as outrageously defying any logic so as

to incur the blame of being perverse.

18. Under such circumstances, this Court is of the considered

view that as there is no perversity in the concurrent finding of

facts, there is no scope for this Court to interfere in the impugned

judgment in exercise of the power under Section 100 of Code of

Civil Procedure.

19. In view of the discussions made above, this Court is of the