Balia Majhi vs (A) Chando Majhi
2025 Latest Caselaw 1129 Jhar

Jharkhand High Court

Balia Majhi vs (A) Chando Majhi on 25 July, 2025

                                                              2024:JHHC:449762024:JHHC:44976


   IN   THE    HIGH COURT         OF     JHARKHAND          AT RANCHI
                   Second Appeal No.181 of 2003

  [Against the judgment and decree dated 23.12.2002, decree signed on
  06.01.2003 passed by learned First Additional District Judge,
  Seraikella, Kharsawan in Title Appeal No.7 of 1996]
                               ------
  1. Balia Majhi
  2. Chandrai Majhi
       Both sons of late Kade Majhi
  3.(a) Smt. Parwati Murmu (widow)
  3.(b) Sunil Kumar Majhi(son)
  3(c) Deepak Kumar Majhi(son)
       3(a) is widow of late Anup Majhi and 3(b) and 3(c) are sons
  of late Anup Majhi
       All resident of village-Bagraisai, P.S. Rajnagar, P.O.-
  Govindpur, District-Singhbhum (west)
                              .... .... Appellants/Defendants
                              Versus
  1. (a) Chando Majhi
  2. Tuklu Majhi, son of lae Mundra Majhi, resident of village-
  Pandugite,     P.S.-Rajnagar,    P.O.-Govindpur,    District-West
  Singhbhum
  3. Dy. Commissioner, West Singhbhum
                              ....   .... Respondents/Plaintiffs
                                     ------
                                 PRESENT
        HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
                                JUDGMENT

For the Appellants : Mr. Ashutosh Mishra, Advocate For Resp. Nos.1 & 2 : Mr. Saibal Mitra, Advocate For Resp. No.3 : Mr. Varun Prabhakar, A.C. to G.P.-III

------

CAV On 07/07/2025 Pronounced On 25/07/2025

1. Heard the arguments of learned counsel for the appellants and

learned counsel for the respondents.

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2. The instant second civil appeal is preferred being aggrieved and

dissatisfied with the judgment and decree dated 23.12.2002

(decree signed on 06.01.2003) passed by learned First Additional

District Judge, Seraikella, Kharsawan in Title Appeal No.7 of 1996,

whereby and whereunder the judgment and decree passed by

Sub-ordinate Judge-II, Saraikella in Title Suit No.04 of 1991 has

been upheld and confirmed and the appeal preferred by the

appellants/defendants is dismissed on contest with cost.

3. The plaintiffs/respondents have instituted the Title Suit No.04 of

1991 for a decree of declaration of their right, title and interest and

confirmation of possession over the suit Schedule 'A' land.

Further, declaration that the order passed by Anchal Adhikari of

Rajnagar Anchal in Mutation Case No.228 of 1988-89 dated

19/20th March, 1989 and the order passed by learned Additional

Deputy Commissioner, Singhbhum under Mutation Revision

Case No.37/89-90 is bad in law which do not confer any title and

possession to the defendants over the suit land. In alternative, the

plaintiffs have also prayed for recovery of possession, if found

dispossessed, from Scheduled 'A' land.

The case of plaintiffs is that the suit lands recorded

under Khata Nos.31 and 32 in the record of rights of Mauza,

Bagaraisai, P.S. Rajnagar, District-Singhbhum was recorded in the

name of common ancestor of the parties namely Mutu Majhi. The

relationship of the parties is based on following genealogy:-

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Mutu Majhi

1st wife (Most. Singa Majhiain) 2nd wife (Most. Sonia Majhiain)

Mundra Arjun Lakhan Tiburam Narayan Bhadao Tura Dandu (died before (died issueless (died issueless) (died Issueless (died Issueless Partition) before partition) before partition) before partition) before partition)

Tuklu Chandra Bale(daughter) Mutu Barsa Anup(died) Kade (died before Chaitan(Gharjamai) (died unmarried) partition)

Balia Anup(died) Chandrai Mudra(died) Arjun (Original Plaintiff No.1) (Defendant (original (Defendant No.1) defendant No.3) No.2)

Tuklu Chando Sunil Kr.

   ( Original             (plaintiff)
   Plaintiff No.2)                                                                        Deepak Kr.
                                                                                      [Defendant No.3(c)]

4. It is submitted that out of five sons from first wife, Arjun Majhi and

Tiburam Majhi died issueless before 1925 and Mundra Majhi died

leaving behind two sons Tuklu Majhi and Chandra Majhi. Taklu

Majhi died leaving behind no male issue except daughter

namely Nagi Majhian, who was already married. Chandra Majhi

died leaving behind Mudra Majhi and Arjun Majhi, the plaintiff

No.1. Arjun Majhi is the son of Chandra Majhi and plaintiff No.2

is the son of Mundra Majhi, the full brother of Arjun Majhi, who

is residing with the plaintiff, Arjun Majhi after the death of his

father.

Further, Lakhan Majhi is third son of the Mutu Majhi

born through his first wife and died leaving behind a daughter

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namely Bale Majhian, who has been given in marriage. Narayan

Majhi, the fifth son of Mutu Majhi who born through first wife

died leaving behind him a son Barsa Majhi, who inherited the

property of his father and in current settlement these properties

have exclusively been settled in his name pertaining to Khata

Nos. 31 and 32 (suit property). Further, the case of the plaintiffs is

that Mutu Majhi has also 3 sons from his second wife namely,

Bhadao Majhi, Tura Majhi and Dandu. Out of them, Bhadao Majhi

and Dandu Majhi died issuless. Tura Majhi died leaving behind

two sons, namely Anup Majhi and Kade Majhi, who inherited the

properties of their father. Anup Majhi has no male issue and died

leaving behind him a daughter Ganga Manjhain, who was

married. Kade Majhi died leaving behind his 3 sons i.e. defendant

Balia Majhi (Defendant No.1) Chandrai Majhi (Defendant No.2)

and Anup Majhi (Defendant No.3), who inherited the properties

of their deceased father.

5. It is further stated that both the parties are ab-original and not

governed by Hindu Succession Act, 1956 they are governed rather

by their own customary law in the matter of succession and

inheritance where married daughters and widows are entitled

only for maintenance till their marriage or died as a case may be.

It is further pleaded that the plaintiffs being nearest agnates of the

recorded owner Barsa Majhi, who was son from the first wife of

Mutu Majhi and real brother of the plaintiffs' branch and died

leaving no male child and married daughters are not entitled for

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inheritance, hence, the plaintiffs performed the last ceremony of

Barsa Majhi and legally entitled for inherited properties.

The defendants being remove kindered are not entitled

to inherit the property left by Barsa Majhi but the defendants

started raising trouble in the peaceful possession of the plaintiffs

over the properties left by Barsa Majhi Suit Schedule A property

and proceeding under sections 144 and 145 of Cr.P.C was

undergone between the parties and the possession of plaintiffs

were declared over the disputed property and they are still in

possession. The order passed under section 145 of Cr.P.C. was not

challenged by the defendants. It is further stated that the

defendants in collusion with Revenue Officers, after lapse of 13

years from the order passed in Misc. Case No.287 of 1973, filed a

petition before Anchal Adhikari claiming mutation of their name

in respect of scheduled 'A' land stating therein that they are

nearest agnates of recorded Barsa Majhi. Accordingly, the

Mutation Case No.228/1988-89 registered. In spite of objection

raised by the plaintiffs, the order was passed in favour of the

defendants and the Mutation Appeal No.3 of 1989 filed by the

plaintiffs before L.R.D.C., Seraikella and the order of Anchal

Adhikari, Rajnagar was set aside and the case was remanded back

to Anchal Adhikari for passing fresh order in accordance with law

vide order dated 12.12.1989. Thereafter, the defendants filed a

revision before the Additional Deputy Commissioner, Singhbhum

bearing No.37 of 1989-90 challenging the order of L.R.D.C.,

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wherein the order passed in appeal was set aside and the order of

Anchal Adhikari, Rajnagar was restored and confirmed vide

order dated 07.09.1990. It is further submitted that the aforesaid

order passed by Revenue Authority is absolutely illegal and does

not confer any right, title and interest to the defendants who are

not entitled to inherit the property of Barsa Majhi and never came

in possession thereof. Hence, the suit was filed.

6. On the other hand, the defendants filed their written statement and

contested the suit denying the contents of plaint. It is admitted

that the suit property pertaining to Khata Nos.31-32 recorded in

the name of Barsa Majhi, son of Narayan Majhi. The genealogical

table given by the plaintiffs is also not complete. It is further

alleged that the Narayan Majhi died before 1965 leaving behind

his two sons Mutu and Barsa and Mutu died in the year, 1935-

1936 and Barsa died in the year 1965 and his wife Baso died in the

month of Magh, 1973, who was being maintained from the lands

left by Barsa Majhi. It is further alleged that there are five sons

from one mother and three sons from another of common

ancestor Mutu Majhi simply being barred from different mother

does not affect the right of succession. Therefore, in Santhal, all

sons of a father who desire to separate receive equal share either

born from same mother or from different mother. Therefore, the

contesting defendants are equally related to Barsa Majhi along

with the plaintiffs and they are also agnates of the same degree of

Barsa Majhi as the plaintiffs. It is also stated that after death of

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Barsa Majhi, Kade Majhi has performed his funeral ceremony in

the year, 1965 in accordance with Santhal Custom and also after

death of his wife in 1973, the funeral ceremony was performed by

defendants also.

It is also admitted by the contesting defendants that

the property left by Mutu Majhi were partitioned among his sons

or grandsons, who were then alive just before Abdul Survey in

village Bagraisai in the year 1925-27. In the said partition, 22.8

acres of land were allotted to the share of Mundra, which was

recorded under Khata No.41 in his exclusive name. Similarly,

Lakhan was allotted 9.24 acres of land, which was recorded in his

name under Khata No.35 of Revisional Survey settlement, which

was inherited by son-in-law as ghar-damad. It is also admitted

fact that though they inherited the property left by Lakhan, they

have no right to inherit any property left by their descendent of

Mutu Majhi because they are not agnates of descendents of Mutu

Majhi. Therefore, they had not inherited the property left by

Barsa. The land allotted to Mutu and Barsa was 11.20 acres

recorded in Khata Nos.31-32. The contesting defendants further

pleaded that the land pertaining to Khata No.31, Plot No.645 and

673 has been sold by Barsa Majhi to the father of the defendants

which they are possessing of their own land. It is further stated

that after the death of Baso Majhain, the wife of Barsa Majhi, the

partition took place in 1973 in which total area of 6.41 acres of

land as Jyesth Ansh were allotted to the share of plaintiffs and

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area 4.90 acres was allotted to the share of Kade Majhi, father of

the defendants. The last partition was under Khta Nos. 31 and 32

in village Bagraisai except the property sold by Barsa Majhi

during lifetime. It is further alleged that the lands allotted to the

plaintiffs in the aforesaid partition, after death of the wife of Barsa

Majhi, shown in Schedule 'A' of the written statement, while the

land allotted to share of Kade Majhi has been shown in schedule

'B' property. The defendants have their house on plot No.446 and

also excavated a pond on the Plot Nos.450 and 454 of Khata No.31

of village Bagraisai. These plots along with other plots were

allotted to Kade Majhi on partition. The other property mentioned

in schedule 'B' to the written statement is in possession in the

defendants. The plaintiffs have no right, title and interest or

possession over the property schedule 'B' to the plaint, which are

allotted to the share of the defendants and the suit has been filed

with false and frivolous claim. The mutation has also been

effected in the name of defendants and they are in possession

after paying revenue to the government. The orders passed by

S.D.O. in criminal proceedings under sections 144 and 145 of

Cr.P.C have no effect at all over the title and possession of the

defendants.

7. On the basis of pleadings of the parties following issues were

settled for adjudication by learned trial court.

(i) Whether the suit as famed is maintainable?

(ii)Whether the plaintiffs have cause of action for this suit.?

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(iii)Is the suit barred by limitation, estoppel, waiver, acquiescence or by way of the provisions of C.N.T. Act?

(iv)Whether the suit is barred under any provision of Specific Relief Act?

(v) Whether there was any partition in between the plaintiffs and Kade Majhi, the father of the defendants and whether the suit lands fell in exclusive share of the plaintiffs?

(vi) Whether the plaintiffs have exclusive right, title, interest and possession over the sit land shown in schedule 'A' of the plaint.

(vii)Whether the plaintiffs have been dispossessed from the suit property during the pendency of the suit?

(viii) To what relief or reliefs, in any, the plaintiffs are entitled?

8. Learned trial court has adjudicated issue Nos. I, III and IV

taking simultaneously on the ground that the parties have not

pressed the above issues. The vital issue Nos.V and VI were

taken together for adjudication and recorded findings that

amongst the alive sons of both wives of Mutu Majhi, the

ancestral property was divided equally and Abdul Survey of

1925-27 shows separate Khata of defendants, sons of Mutu

Majhi in the recorded of rights. Learned trial court has also

considered oral evidence adduced by the parties as well as

documentary evidence of defendants and arrived at conclusion

that there was never any partition of the properties of Barsa

Majhi in between the plaintiffs and Kade Majhi and the suit

land was never allotted to the share of Kade Majhi in the

alleged partition and he never came in possession of the suit

land nor the defendants are in possession of the same. The

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plaintiffs being nearest agnates of Barsa Majhi have exclusive

right, title and interest over the suit shown in schedule 'A' of

the plaint. Accordingly, the aforesaid issues were decided in

favour of the plaintiffs and against the defendants. In view of

main findings recorded in favor of the plaintiffs, the issue Nos.

II,VII and VIII were also decided in favour of the plaintiffs and

against the defendants and the suit of the plaintiffs was

decreed.

9. The defendants filed Title Appeal No.7 of 1996 before the

District Judge, Saraikella, Kharsawan wherein on the basis of

arguments of parties, the learned appellate court has

formulated following points for consideration:-

(1) Whether the plaintiffs have inherited the suit land as nearest agnates of Barsa Majhi and coming in possession over the same continuously and thus acquired title and possession over the suit land?

(2)Whether the partition took place in between the father of the defendants and plaintiff No.1 in respect of land of Barsa Majhi and the suit lands were allotted to the share of the father of defendants in partition?

(3)Whether the defendants are coming in possession over the suit land since the time of their father and acquired title over the same? (4)Whether the judgment and decree passed by learned lower court is fit to be set aside and the present appeal is fit to be allowed?

10. Learned appellate court re-appreciated the oral and

documentary evidence led by the parties before the trial court

and has decided all the points against the

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appellants/defendants and in favor of the plaintiffs and

dismissed the appeal, accordingly.

11. The defendants/appellants have preferred this second appeal

challenging the judgment and decree passed by learned trial

court as well as learned appellate court on following

substantial question of law formulated vide order dated

05.07.2006:-

"Whether the descendants of the same father but through different mothers will have distinction in the matter of inheritance and the sons born out of the same father but one mother shall be nearer than the sons born out of the same father but different mothers for the purpose of inheritance according to Santhal Customary law?"

12. Learned counsel for the appellants has submitted that the trial

court as well as learned first appellate court have completely

failed to consider and virtually ignored the settled Customary

Law prevailing in Santhal Tribal Community. It is settled

Customary Law that in case the male died issueless his property

devolved upon his nearest agnates to the extent of equal degree.

Therefore, after the death of Barsa Majhi, the property left by him

was equally partitioned between the plaintiffs and the father of

the defendants namely Kade Majhi, which was also recognized by

the Revenue Court and mutation has been affected in favor of the

appellants/defendants. Learned counsel for the appellants has

also pointed out some customs prevailing in Santhal Tribal

Community regarding inheritance and succession and submitted

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that in Santhal Community polygamy is prevalent since long.

There is no distinction in the matter of inheritance by the sons

born from different wives and all sons are equally entitled for

inheritance to the property of the male based on patriarchal

prioritized male heir. The wives and daughters are excluded from

succession rather have right of maintenance only. This stands

from the Santhali that the land remains within the male lineage to

preserve clown identity and economic stability. It is further

submitted that in the instant case, the defendants are also agnates

of equal degree with the plaintiffs' branch therefore, entitle to

succeed the property led by Barsa Majhi and no discrimination in

the matter of succession can be recognized as per customary law.

Therefore, the judgment and decree passed by both the courts

bellow is liable to be set aside.

13. On the other hand, learned counsel for the respondents/plaintiffs

refuting the aforesaid arguments advanced on behalf of the

appellants submitted that it is admitted fact that the live sons of

Mutu Majhi from both the wives had obtained their share as per

customary law through partition. After partition, each branch

from the first wife of the Mutu Majhi as well as second branch by

second wife were occupying their property and allotted shares

since 1925-27. The record of C.S. settlement record of rights also

shows that their separate names over the allotted landed

property. It is further submitted that Barsa Majhi and his wife

belongs to the branch of plaintiffs and ancestors and not the

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branch of defendants therefore, the property of Barsa Majhi as per

Santhal Traditional Practice goes to the nearest agnates and not to

the distant kindred i.e. defendants. Therefore, the inheritance and

partition of property of Barsa Majhi claimed by the defendants is

absolutely illegal and disbelieved by concurrent findings of the

trial court as well as appellate court. Learned counsel for the

appellants has not brought on record any recognized text of law

whereby the property of Barsa Majhi devolved to the distant

kindred i.e. defendants. Therefore, the substantial question of law

formulated in this case cannot be sustained and this appeal is

devoid of merits and is fit to be dismissed.

14. I have gone through the judgments passed by learned trial court

as well as in the light of contentions raised on behalf of both the

sides and also the text of customary law pointed out by learned

counsel for the appellants/defendants, there is no doubt that

polygamy is prevalent in the tribal community of Santhal

Paragana and there is practice of equal right of inheritance of the

property by sons irrespective of the wives from whom they have

been born. The sons from all wives having equal rights of

inheritance in the property of their father and the succession is

dominated by male heir(s) excluding female heir(s) who are

entitled to live-state or maintenance.

In the instant case, there were two wives of male

propitiators/proprietor Mutu Majhi, from first wife, he had five

sons, from second wife, he had three sons. Out of 8 sons, some

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died during life time of their father. It is also admitted that

property was equally divided and partitioned between all sons

born from both wives as per customs prevailing in the society

recognizing the excess share in favor of eldest son i.e.

primogeniture. It is also admitted facts that the property of one

Barsa Manji was disputed in the case in the matter of inheritance,

who belong to the branch of first wife of Mutu Majhi and the

defendants are descendants of the branch of second wife of Mutu

Manji. The custom recognizes nearest kindred on the basis of

consanguinity and affinity to have the right of succession. The

descendant kindred of different branch have no claim of the same

right of inheritance to the property belonging to another branch.

Learned counsel for the appellants has failed to bring on record

any custom or practice prudent to aforesaid principle and

recognizing the descendant kindred's right of succession. The

equally partition of property left by Barsa Majhi in between the

plaintiffs and the father of the defendants has also not been

proved and not accepted by both the courts below. Therefore, it

appears that no substantive principle of law recognizing the

substantial question of law formulated in this appeal.

15. In view of the aforesaid discussions and reasons, I do not find any

merits in this appeal, which stands dismissed on contest and both

the parties shall bear their own cost.

16. Pending I.A(s), if any, stands disposed of accordingly.

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17. Let the copy of this judgment along with Trial Court Records be

sent back to the court concerned for information and needful.

(Pradeep Kumar Srivastava, J.)

High Court of Jharkhand, Ranchi Date: 25/ 07/2025 Pappu/- N.A.F.R.