Remanded

Bal Mohan Orain And Ors. v. Bal Mohan Oraon And Ors.

Jharkhand HC19 Jul 2022SA/36/1998

Case brief

AI extract

What is this about?

In a second appeal concerning tribal land title and possession, the High Court set aside the first appellate court's judgment for perversity. The lower court failed to specify whether it granted confirmation of possession or recovery of possession amidst alternative prayers, creating an ambiguous decree. The matter was remanded for a fresh decision. Other substantial questions of law were not expr

What did the court decide?

Impugned judgment and decree set aside and matter remanded to the first appellate court for a fresh decision. Parties directed to appear for further proceedings.

Bal Mohan Orain And Ors. Vs Bal Mohan Oraon And Ors. — Property and Title | Jharkhand HC (2022)

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Second Appeal No. 36 of 1998 ®

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IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.36 of 1998 (R)

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(Against the Judgment dated 18.02.1998 passed by the learned 2^nd Additional Judicial Commissioner, Ranchi in Title Appeal No.92 of 1977)

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A 1 (a). Bal Mohan Uraon son of late Ranki Oraon

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A 1 (b) Birsi Urain daughter of late Ranki Oraon

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A1 (c). Balko Urain daughter of late Ranki Oraon

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A1 (d) Birsi Muni daughter of late Ranki Oraon

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Ketna Oraon daughter of late Gabbara Oraon

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Balmohan

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Luttu Oraon

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Both sons of late Gabbara Oraon

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Resident of village Lundri, P.S. Chanho, District- Ranchi

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.... .... …. Appellants

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Versus

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Saru Oraon minor son of late Etwa Oraon

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Turi Orain wife of late Etwa Oraon

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Charwa Oraon

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Budhuwa Oraon

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3 And 4 are sons Somra Oraon resident of Village-Lundri P.S. Mandar, Dist. Ranchi

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All residents of village Lundri, P.S. Mandar, Dist. Ranchi, all by caste Oraon by occupation cultivation resident of village Lundri, P.S. Mandar, Dist. Ranchi

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Bingla Oraon minor son of Majhi Oraon through his mother and natural guardian Most. Budhni Orain as next friend.

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Budhuwa Oraon son of late Sukro Oraon

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Mahabir Oraon minor son of late Bigla Oraon through his mother and natural guardian Mostt. Gangi Orain as next friend.

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Second Appeal No. 36 of 1998 ®

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Nagwa Oraon son of Sukra Oraon deceased,

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Sugia Orain daughter of late Somra Oraon

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Budhu Oraon

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Gundu Oraon son of late Gabra Oraon son of Somra Oraon

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Sohrai Oraon son of late Somra Oraon

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All resident of village- Lundri, P.S. Chanho, Dist. Ranchi

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Bhagwani Orain wife of Birsa Oraon resident of Raghunathpur, P.S. Chanho Dist. Ranchi

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Goindi Orain wife of Aghnu Oraon, resident of Ludri, P.S. Chanho, Dist. Ranchi

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Birang Oraon husbands name not known to the appellant, resident of Romiya, P.S. Kuru, Dist. Lohardaga

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Kanchu Oraon son of Sohrai Oraon

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All by caste Oraon by occupation cultivation, resident of village Lundri P.S. Mandar, Dist. Ranchi

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The Deputy Commissioner, Ranchi

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... .... …. Respondents

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For the Appellants : Mr. K.K. Ambastha, Advocate For the Respondents : Mr. V.K. Prasad, Advocate

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PRESENT

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HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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By the Court:- Heard the parties.

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Second Appeal No. 36 of 1998 ®

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This second appeal has been preferred against the judgment dated 18.02.1998 passed by the learned 2^nd Additional Judicial Commissioner, Ranchi in Title Appeal No.92 of 1977.

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This is the second journey of the parties to this Court. This case has a chequered history.

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The plaintiffs-appellants filed the suit with the following

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prayers

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(a) the plaintiffs’ title over the suit lands be declared and the possession be confirmed, or alternative to (a),

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Recovery of possession if the Court finds the plaintiffs to have been dispossessed.

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(b) Declaration that the sale deed dated 06.06.1946 executed by Etwa Oraon in favour of the defendant is null and void and not binding on the plaintiffs and other reliefs.

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The brief facts of the case is that the suit land was the joint property of the plaintiffs Etwa Oraon and Egnesh Oraon but the sale deed was in the name of the Etwa Oraon who was the managing member representing the family of the plaintiffs and Egnesh Oraon. It is further the case of the plaintiffs that the father of the original plaintiffs namely Etwa Oraon, Sohrai Oraon, Tipsa Oraon and Buchai Oraon were the sons of the common ancestor Mohna Oraon. Etwa Oraon died without having any son and the defendants are the son of the daughters of Etwa Oraon. It is also the case of the plaintiffs that

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Second Appeal No. 36 of 1998 ®

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the parties are indigenous Oraon and in matter of inheritance and succession are governed by tribal customary laws according to which, daughters, females and those claiming through them are excluded from inheritance. Hence, the defendants who are the daughter’s sons are not entitled to inherit the suit land. It is further the case of the plaintiffs that Etwa Oraon died in the state of jointness with the plaintiffs who have been in cultivating possession of the suit lands and the funeral rites of Etwa Oraon was performed by the plaintiffs. Egnesh Oraon one of the recorded raiyats was separate and his land had been recorded in his separate possession. After his death, the plaintiffs inherited Egnesh Oraon’s lands being his only heir and legal representative. His lands are not the subject matter of the suit. It is also the case of the plaintiffs that the defendants who are not in possession of the suit land in conspiracy and in consultation with the enemies of the plaintiffs caused a proceeding under Section 144 of Cr.P.C. over the suit land and the said proceeding was converted into a proceeding under Section 145 of Cr.P.C. and in course of criminal proceedings, the defendants claimed the suit land on the basis of sale deed executed by Etwa Oraon on 06.06.1946 for Rs.500/-. The aforesaid said sale deed is without consideration, null and void and not binding upon the plaintiffs. The said sale deed is a sham and colourable transaction.

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The original defendants in their written statement inter alia pleaded that the suit land was acquired by Bhuranga Oraon and

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Second Appeal No. 36 of 1998 ®

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Etwa Oraon from their own separate personal funds in the year 1916 by taking settlement from the then landlord Maharaja of Ratu by virtue of Kabuliat and Hukumnama. The said Bhuranga Oraon and Etwa Oraon were put in possession. The settlement was followed by grant of Hukumnama by Maharaja Ratu dated 21.02.1916 and the tenancy was accepted by granting rent receipts. Both the settlers subsequently, partitioned the lands settled and were in separate possession. During the revenue settlement, part of the suit land recorded in R.S. plot No.111, 112 and 449 were given by Etwa to the father of the original plaintiffs namely Sohrai and Buchai and the plaintiff Somra to cultivate temporarily on adhbatai but they managed to get their names entered fraudulently behind the back of Etwa who was very ill; by taking the advantage of illness of Etwa. Hence, the entries in revenue records are wrong to that extent but in-spite of those entries Sohrai and Buchai and Somra gave up possession in respect of the said part of the suit land and Etwa came in possession of the land of his share. It is the case of the defendants that Etwa was quite separate in all respect from his brothers and was neither the managing member nor the acquisition of the suit land by Etwa was made with any joint fund but said acquisition was made from the separate personal fund of Etwa. The defendants also pleaded that Etwa was a Hinduised Oraon and left his daughters Birsi and Pokwa who also inherited the properties of Etwa. They also denied the custom pleaded by the plaintiffs denying the daughters, the right of inheritance. The defendants further pleaded that during the old age

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Second Appeal No. 36 of 1998 ®

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of Etwa, the defendants looked after him and performed the last ceremony of Etwa. Etwa Oraon inter alia sold the suit land by duly executed and registered deed of sale dated 06.06.1946 and put the defendants in possession of the lands and the defendants are in peaceful cultivating possession over the suit land and the defendants claimed title over the suit land on the basis of sale deed executed by Etwa Oraon in their favour. The defendants also pleaded that the title if any of the plaintiffs though denied specifically are long been barred by adverse possession at least since sale, mutation and separation of rent. The defendants next pleaded that after vesting, the State of Bihar also accepted the defendants as settled raiyat and realized rent for the same and granted receipts to the knowledge and notice of the plaintiffs.

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On the basis of the rival pleadings, the trial court framed the

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following issues :-

Is the suit as framed maintainable?

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Is there is any cause of action for the suit?

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Is the suit barred by limitation and adverse possession?

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Is the suit barred by principle of estoppel, waiver and acquisance?

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Is the suit barred by Section 34 of the Specific Relief Act?

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Is the suit bad for non-joinder of necessary parties?

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Is the suit properly valued and sufficient court fee paid thereon?

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Second Appeal No. 36 of 1998 ®

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Whether Etwa was Hinduised Oraon and governed by Hindu Law?

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Whether Etwa was an indigenous Oraon governed by customary rule of inheritance and succession under which daughters and females and persons claiming through females are excluded from inheritance?

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Are the plaintiffs entitled to a declaration of his title over the suit land and confirmation of possession thereon or alternatively for recovery of their possession if found dispossessed?

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Are the plaintiffs entitled to a declaration that the sale deed dated 6.6.1946 executed by Etwa Oraon to the plaintiffs is null, void and not binding on them?

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

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The learned trial court took up issue nos.8 and 9 together and after considering the evidence in the record came to a finding that Etwa Oraon was governed by his customary law of inheritance where the daughters and persons claiming through females are excluded from inheritance. The trial court thereafter took up issue nos.3, 4, 10 and 11 and after considering the evidence in the record came to the conclusion that the plaintiffs could not be able to prove their title or possession over the suit land within the specific time. Hence, the plaintiffs are not entitled to the reliefs claimed. The trial court thereafter disposed of the issue nos.5, 6 and 7 as not pressed and in respect of issue nos.1 and 2 held that the suit is not maintainable and the plaintiffs have no cause of action and dismissed the suit on contest against the defendant nos.1, 2 and 4.

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Second Appeal No. 36 of 1998 ®

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Being aggrieved by the judgment and decree passed by the learned trial court in Title Suit No.7/30 of 70/76 dated 12.04.1977 passed by the 1^st Additional Munsif, Ranchi, the plaintiffs filed Title Appeal No.92/10 of 77/78 which was heard and disposed of by the VIIth Additional Sub Judge, Ranchi vide its judgment and decree dated 05.10.1978.

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The learned VIIth Additional Sub Judge, Ranchi framed the following three points for consideration :-

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Did defendants 1 and 2 acquire valid title to and possession over the suit land except R.S. Plot No.449 on the basis of deed of sale dated 06.06.1946?

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Is the deed of sale dated 06.06.1946 executed by Etwa in favour of defendants 1 and 2 legal, valid and bindings upon the plaintiffs?

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Have defendants 1 and 2 perfected their title over the suit land except R.S. plot no.449 by adverse possession?

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After making independent assessment of the evidence in the record the VIIth Additional Sub Judge, Ranchi, held that deed of sale dated 06.06.1946 executed by Etwa in favour of the defendant nos.1 and 2 is legal and valid and binding upon the plaintiffs. The defendants acquired valid title and possession over the suit land except plot no.449 on the basis of the said sale deed and they further perfected their title by prescription and the plaintiffs cannot get a decree in the suit and confirmed the judgment and decree passed by the trial court.

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Second Appeal No. 36 of 1998 ®

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Against the said concurrent finding of facts, the plaintiffs filed Appeal From Appellate Decree of 15 of 1979 (R) before the High Court of Judicature at Patna and the Hon’ble Patna High Court vide judgment dated 07.08.1985 framed the additional substantial question of law as under :-

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“In view of the fact that the courts below, particularly the lower appellate court, failed to take into consideration the relevant facts for holding that the entry in exhibit 3 was erroneous, whether that finding should be held to have been vitiated?”

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And the Hon’ble Patna High Court observed that the lower appellate court did not consider the effect of Ext. B/1 and also observed that the court below did not take into consideration all the evidence brought on record by the parties in arriving at the conclusion whether the entry in exhibit 3 was proved to be wrong and answered the substantial question of law in favour of the appellants.

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In respect of the first substantial question of law law framed at the time of admission of the said Appeal Against the Appellate Decree which is as under :-

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“Whether the courts below erred in holding that defendants-respondents acquired title by adverse possession even though the suit was filed within thirty years?”

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Second Appeal No. 36 of 1998 ®

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It was observed by the Hon’ble Patna High Court that both the courts below have held that the defendant had perfected their title of adverse possession by remaining in possession of the property for more than twelve years but since Bihar Scheduled Area Regulation, 1969 as amended under Article 65 of the Limitation Act, 1963 providing the period of limitation instead of 12 years in respect of immovable property belonging to the members of the scheduled tribes to 30 years. As admittedly, the property belong to the member of the scheduled tribes, the effect of amendment of article 65 was not considered by the courts below but without expressing any opinion on the question of adverse possession set aside the judgment and decree of the lower appellate court and sent back the matter for fresh decision on the basis of the evidence already in the record after hearing the parties.

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14 After the said remand, the learned 2^nd Additional Judicial Commissioner, Ranchi framed the following two points for determination :-

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“Whether the courts below erred in holding that the defendants-respondents acquired title by adverse possession even though the suit was filed within thirty years?

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Second Appeal No. 36 of 1998 ®

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In view of the fact that the courts below, particularly the lower appellate court, failed to take into consideration the relevant facts for holding that the entry in exhibit 3 was erroneous, whether that finding should be held to have been vitiated?”

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The first appellate court after remand under the impugned judgment considered the evidence in the record and held that in this case firstly, as the period of limitation of 30 years has not expired by the year 1970 when the suit was filed as the transfer had taken place in the year 1946, thus, the question of acquiring title by the defendants does not arise. It was further observed by the lower appellate court in the impugned judgment that as Ext. 3 stand in the name of the ancestors of the plaintiffs, they have a prima facie title and possession in their favour and the suit instituted within the period of limitation, hence, they are entitled to claim the reliefs in the suit. It was further observed that the sale deed which was marked Ext. B/1, which was executed by Etwa Oraon, Buchai Oraon and Somra Oraon in favour of Matus Oraon for plot no.446 shows that all the brothers have equal right over the lands of khata in respect of which Ext. B/2 was executed by Etwa Oraon alone in favour of Matua Oraon, prior to execution of Ext. B/1 jointly by Etwa Oraon, Buchai Oraon and Somra Oraon and had Etwa Oraon having exclusive title over the plot no.449, there was no need for taking another deed vide Ext. B/1 from Etwa Oraon along with his brothers and ultimately, came to the conclusion that R.S.

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Second Appeal No. 36 of 1998 ®

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khatian was prepared correctly and the lands in suit are the joint land of the plaintiffs and accordingly, Etwa Oraon was not entitled to sell the property in the suit vide the said deed dated 06.06.1946 which was marked Ext. B and accordingly, the defendants- respondents did not acquire any title over the land in suit under Ext. B as Etwa Oraon was not competent to transfer the land in suit and the entire sale deed is null and void and not binding upon the plaintiffs but the plaintiff’s title cannot be affected through Ext. B and accordingly, allowed the appeal and observed that the plaintiffs are entitled to claim the reliefs as mentioned in the plaint.

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At the time of Admission of this appeal the following substantial question of law were framed :-

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“(I) Whether the plaintiffs-respondents could have challenged the registered sale deed dated 06.06.1946 executed by Etwa Oraon in favour of the defendants-appellants by filing a suit in the year 1970 in view of the decision of this Court reported in 1996 (1) BLJR 94?

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(II) Whether the judgment of the court of appeal below be sustained in law in view of the fact that it has failed to take into consideration the effect of Exts. F and J before coming to a conclusion that entries in the record of rights were not challenged the same cannot be challenged by the defendantsappellants at this stage?

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Second Appeal No. 36 of 1998 ®

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(III) Whether the findings of the court of appeal below that nobody has challenged the entries of the Khatiyan, is an error of records, when admittedly the defendants-appellants have stated in their written statement that the said entries were wrong and collusive?

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(IV) Whether the question of adverse possession under amended Article 65 of the Limitation Act would be applicable when both the parties are admittedly the members of Scheduled Tribe?

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It is submitted by Mr. K.K. Ambastha, learned counsel for the appellants that an additional substantial question of law arises in this appeal is as the prayer of the plaintiffs made in the plaint is for confirmation of possession or in alternative recovery of possession, the lower appellate court committed perversity by not deciding as to which of the parties is in possession of the suit land and not specifying in the impugned judgment as to whether the plaintiffs relief for recovery of possession was allowed or confirmation of possession was allowed.

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In view of the submission made at the Bar, the following additional substantial question of law is framed which is as under :-

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“Whether the impugned judgment and decree passed by the learned first appellate court after remand is perverse as without specifying as to which party is in possession and without

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Second Appeal No. 36 of 1998 ®

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specifying whether which out of the two reliefs i.e. relief of confirmation of possession or in alternative relief of recovery of possession is given to the plaintiff, is perverse?”

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Both the learned counsel for the appellants and the learned counsel for the respondents submits that they are ready to advance arguments on this additional substantial question of law and for that the hearing of this appeal ought not be deferred considering that this is an years old appeal of the year 1998, with the consent of the parties taking note of their submission that they do not want any further attempt in this appeal the hearing of the appeal is continued.

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Now coming to the additional substantial question of law as framed, it is a settled principle of law that when a suit is decreed the judgment of the court must mention the reliefs granted in the suit, in no uncertain manner in case more so where one out of the two alternative reliefs is sought for in the suit; like the present one in which the plaintiffs prayed for confirmation of possession or in alternative relief of possession. Thus it was incumbent upon the trial court to come to a finding as to which party is in possession of the suit land and ought to have specified which out of the 2 alternative prayer is that is the prayer for confirmation of possession is granted to the plaintiffs or the recovery of possession is granted to the plaintiffs and in absence of that, the decree becomes ambiguous by merely mentioning that the plaintiffs are entitled to claim the reliefs as mentioned in the plaint, and such a relief granted in

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Second Appeal No. 36 of 1998 ®

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the impugned judgment is a vague and certainly the grave error on the part of the learned first appellate court. Hence, this Court has no hesitation in holding that the impugned judgment and decree is a perverse one. Accordingly, the same is liable to be set aside and the matter be remanded back to the learned first appellate court.

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As this Court is remanding the appeal to the first appellate court, hence it is not expressing any opinion regarding the other substantial questions of law already framed in this appeal at the time of Admission.

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In view of the discussions made above, the impugned judgment dated 18.02.1998 passed by the learned 2^nd Additional Judicial Commissioner, Ranchi in Title Appeal No.92 of 1977 being not sustainable in law, is set aside and the matter is remanded back to the court concerned or its successor court for fresh decision in the light of the observations made in this Judgment after hearing the parties.

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Both the parties are directed to appear before the learned first appellate court or its successor court on 25.08.2022 for receiving the directions of that court as to the further proceeding in the appeal.

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Considering the fact that the appeal is an old one, the learned first appellate court is directed to render its judgment expeditiously preferably within a period of six months from the date of receipt of the copy of the Judgment in the court concerned.

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Second Appeal No. 36 of 1998 ®

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Let a copy of this Judgment along with the Lower Court

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Records be sent back to learned court concerned forthwith.

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(Anil Kumar Choudhary, J . )

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High Court of Jharkhand, Ranchi Dated the 19^th July, 2022 AFR/ Sonu-Gunjan/-

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Bal Mohan Orain And Ors. v. Bal Mohan Oraon And Ors.

Case brief

What is this about?

What did the court decide?

Bal Mohan Orain And Ors. v. Bal Mohan Oraon And Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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