Dismissed

Somari Devi And Ors. v. Mahadeo Oraon And Ors.

Jharkhand HC3 Jul 2023SA/9/2018

Case brief

AI extract

What is this about?

The High Court of Jharkhand, in a second appeal regarding a partition suit, upheld the lower courts' dismissal. Relying on the 1932 Record of Rights which listed the property in one branch's name and the other as 'Katbhaiya' (half-brother), the court found no unity of title or possession to disturb the concurrent findings of fact without interference.

What did the court decide?

The appeal is dismissed as there is no substantial question of law and no justifiable reason to interfere with the concurrent findings of fact.

Somari Devi And Ors. Vs Mahadeo Oraon And Ors. — Partition | Jharkhand HC (2023)

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S.A.No.09 of 2018

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IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.09 of 2018

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(Against the judgment dated 21.09.2017 passed by learned District Judge-III, Gumla in Title Appeal No.05 of 2015)

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Somari Devi W/o Late Jharia Oraon

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Deonath Oraon

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Dersay Oraon

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Ashok Oraon (12 Years)

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Devnandan Oraon (7 Years)

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Ankit Oraon (4 Years)

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Appellants no.2 to 6 sons of Jharia Oraon and appellant No.4 to 6 are minor represented through their mother Somrai Devi (Appellant no.1)

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Jai Mangal Oraon S/o Late Budhram Oraon

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Gopal Oraon S/o Late Budhram Oraon

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Budhu Oraon S/o Late Somra Oraon

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Pravin Oraon S/o Late Sonaram Oraon

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All are resident of village Bendora Kirto Toli, P.O. and P.S. Chainpur, District- Gumla.

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.... .... …. Plaintiffs/Appellants/Appellants Versus

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(a) Vinay Bhagat

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(b) Shiv Prasad Oraon

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(d) Mukesh Oraon

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(e) Umesh Oraon

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All S/o Late Mahadeo Oraon, All R/o Vill- Bendora, Kirtotoli,

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P.O. & P.S.- Chainpur, Dist.- Gumla

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Rabindra Oraon S/o Mahavir Oraon

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Ropa Oraon S/o Mahavir Oraon

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Respondent No.2 to 3 resident of village Bendora Kirto Toli,

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S.A.No.09 of 2018

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P.O. and P.S. Chainpur, District- Gumla

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Mahendra Oraon S/o Late Fakir Oraon, resident of C/o Rajesh Ram Son of Mathura Ram, Village Painko, P.O. Painko, P.S. & District- Jashpur (Chattisgarh)

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Surendra Oraon S/o Late Fakir Oraon

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Rajendra Oraon S/o Late Fakir Oraon Respondent no.5 & 6 residents of Shastrinagar, P.O. and P.S.

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Gumla, District- Gumla.

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Balka Oraon S/o Late Birsu Oraon

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Jayanti Devi W/o Late Annu Oraon

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Alpna Kumari (7 years) D/o Late Annu Oraon

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Aruna Kumari (5 years) D/o Late Annu Oraon

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Anchal Kumari (3 years) Late Annu Oraon

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Infant Baby of 3 months S/o Late Annu Oraon

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Respondent no.9 to 12 are minor and represented through their

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mother Jayanti Devi. Respondent no.7 to 12 resident of village Bendora Kirto Toli, P.O. and P.S. Chainpur, District- Gumla

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Arjun Oraon S/o Late Chaitu Oraon

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Lalsu Oraon S/o Late Ropna Oraon

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Satish Oraon S/o Late Shobha Oraon

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Santosh Oraon S/o Late Shobha Oraon

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(a) Asari Devi W/o Late Birsu Oraon

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(b) Bimal Oraon S/o Late Birsu Oraon

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(d) Chargi Devi D/o Late Birsu Oraon

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All R/o Vill- Bendora Kirto Toli, P.O. & P.S.- Chainpur, Dist-

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Gumla

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Soma Oraon S/o Late Sukha Oraon

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( Dead )

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(a) Sangita Devi W/o Late Sanjay Oraon

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(b) Ritesh Oraon

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S.A.No.09 of 2018

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[20 (b) and 20 (c)] both S/o Late Sanjay Oraon

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(d) Nikita Oraon D/o Late Sanjay Oraon

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All R/o- Vill- Bendora Kirto Toli, P.O. & P.S.- Chainpur, Dist.-

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Gumla

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Baldeo Oraon S/o Late Jata Oraon

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Respondent No.13 to 16, 18 and 21 resident of village Bendora

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Kirto Toli, P.O and P.S. Chainpur, District- Gumla

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Deputy Commissioner, Gumla, P.O. & P.S. & Dist.- Gumla

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Charan Oraon S/o Late Tipu Oraon

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Vishnu Oraon S/o Late Tipu Oraon

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Birendra Oraon S/o Late Tipu Oraon

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Rajesh Oraon S/o Late Tipu Oraon

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Manoj Oraon S/o Late Tipu Oraon

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All 23 to 27 R/o Village- Bendora Kirto Toli P.O. & P.S.-

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Chainpur, Dist.- Gumla.

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.... .... …. Defendants/Respondents/ Respondents

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For the Appellants : Mr. Arun Kumar, Advocate For the Respondents : None

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P R E S E N T

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HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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

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This Second Appeal, under Section 100 of the Code of Civil Procedure, has been preferred against the judgment of concurrence dated 21.09.2017 passed by learned District Judge-III, Gumla in Title Appeal No.05 of 2015 by which the learned First Appellate Court has affirmed the judgment and decree passed by the trial court being the court of Civil Judge (Senior Division-I), Gumla in Partition Suit No.39 of 2006 dated 21.03.2015 by which the learned trial court dismissed the suit of the

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S.A.No.09 of 2018

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plaintiffs for partition on the ground that there is no unity of title and possession between the plaintiffs and the defendant in respect of the suit land and the learned First Appellate Court also dismissed the appeal by the impugned judgment and decree.

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The case of the plaintiffs in brief is that the plaintiffs and the defendants are the own descendants of Charo Oraon. Charo Oraon had two sons namely Bucha Bhandai and Budhu. This suit property relates to the property in the share of Bucha Bhandari. Bucha Bhandari had two sons namely Manjhi who is the recorded tenant and Somra who is stated to be a Katbhaiya brother of Manjhi as mentioned in the remarks column of Record of Rights which has been marked Ext. 10. It is crystal clear that Somra is not the recorded tenant of the suit land as mentioned in the Khatiyan of the year 1932 marked Ext. 10 and only his name appears in remarks column. It is stated that ‘ Katbhaiya’ brother means sons of common mother but from a different father. So, the implication from Ext. 10 is that Somra is not the son of Bucha Bhandari whereas Manjhi is the son of Bucha Bhandari. The plaintiffs are the descendant of Somra whereas the defendants are the descendants of Manjhi. The plaintiffs further pleaded that there has been no partition of the suit land amongst the recorded tenant and Manjhi Uraon has managed to enter the name of Somra Uraon as ‘ Katbhaiya’ though Somra Uraon was the own brother Manjhi Uraon. The plaintiffs further pleaded that in respect of some other land, the plaintiffs have got mutated the land after purchase as their selfacquired property and therein they have mentioned their name to be son of Bucha Bhandari and the said Record of Rights has been marked Ext. 4. Hence, the plaintiffs prayed for one-fourth share of the suit land.

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The defendants in their joint written statement, challenged the maintainability of the suit on various technical grounds and pleaded that the genealogical table given by the plaintiffs is not correct and Somra was the son of Bucha Bhandari and the plaintiffs are strangers to the family of the defendants and the Record of Rights which was prepared seventy years back in the name of Manjhi Oraon has remained unchallenged and the same cannot be challenged at such a belated stage.

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In view of the rival pleadings of the parties, the learned trial court

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S.A.No.09 of 2018

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framed the following eight issues:-

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(1) Is the suit as framed maintainable?

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(2) Is a valid cause of action arose for the present suit?

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

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(4) Is the suit grossly under valued and court fees paid is insufficient?

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(5) Are the both parties belong to one common ancestor and the suit lands are joint properties of the parties?

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(6) Are the plaintiffs entitled to get a decree of 1/4^th share in the suit property?

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(7) Are the plaintiffs entitle for cost of the suit?

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(8) Are the plaintiffs entitled for any other relief or reliefs?

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In support of their case, the plaintiffs examined seven witnesses besides proving the documents which have been marked Ext. 1 to Ext. 10 and the defendants examined eight witnesses and also proved the documents which have been marked Ext. A series, B series and C.

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The learned trial court first took up issue No.(5) and considered the testimony of P.W.3- Budhram Oraon who is one of the plaintiffs, who has stated that he is having property in Khata No.267 in the separate name of Somra Oraon, so, since Somra Oran was having separate land in separate Khata, the same is against the plea of the plaintiffs that the properties of Somra and Manjhi Oraon are joint. From Ext. 2 wherein Bucha Bhandari has stated that Manjhi is the son of his first wife and Somra is the son of his second wife and therein it has also been mentioned that Bucha Bhandari has already partitioned his land between his two sons and both of them shall live in their respective lands; the same goes to show that there was partition between Manjhi and Somra and considering the contents of Ext. 10 which is the copy of the certified copy of Khatiyan of suit property of Khata No.177, the learned trial court concluded that the entry in the said Ext. 10 having not been challenged; the same goes to show that the parties to the suit do not belong to the common ancestor nor the suit land was joint property of the parties.

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The learned trial court next took up issue No. (4) and held that the suit is properly valued and proper court fee has been paid by the plaintiffs.

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Thereafter, the learned trial court took up issue No. (3) and held that the suit is not bad for non-joinder of necessary party.

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S.A.No.09 of 2018

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Then, the learned trial court took up issue Nos.(1), (2), (6), (7) and (8) and in the light of its findings in respect of issue No. (5), it came to the conclusion that the suit is not maintainable, plaintiffs have no valid cause of action, the plaintiffs are not entitled to get the decree of one-fourth share in the suit property and they are not entitled to the reliefs claimed or any relief and dismissed the suit.

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Being aggrieved by the judgment and decree passed by the trial court, the plaintiffs preferred Title Appeal No.05 of 2015 in the court of Principal District Judge, Gumla which was ultimately heard and disposed of by the learned First Appellate Court by the impugned judgment and decree.

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The learned First Appellate Court, considering the materials available in the record formulated the following sole point for determination:-

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“ Whether there is unity of title and possession of the plaintiffs and defendants over the lands pertaining to Khata No.177 of Village Bendora kirtotoli?”

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The learned First Appellate Court considered the Ext. 10 which is the R.S. Record of Rights prepared in the year 1932 wherein in the remarks column, the name of Somra Oraon has been shows as ‘Katbhai’ of Manjhi Oraon whereas the Record of Rights stands in the name of Manjhi Oraon and also considered that the same has not been challenged by the plaintiffs or Somra Oraon. The learned First Appellate Court also relied upon the Section 132 of the Chota Nagpur Tenancy Act wherein it has been mentioned that when Record of Rights is finally published under Section 128 or 131, the entry made therein, shall be conclusive evidence of the rights and obligations of the tenants in every suit, application of the same to which the landlord or tenant or any person claiming to be the landlord or a tenant is a party and to which such entries relate. The learned First Appellate court also took note of the fact that the plaintiffs have not sought any relief of seeking declaration of the entry made in the Record of Rights (Ext. 10) to be wrong or erroneous nor sought any declaration of their right, title and interest in land of Khata No.177. The learned First Appellate court then considered that this is not the case of

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S.A.No.09 of 2018

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the plaintiffs that they were not aware or not having any knowledge about the publication of Record of Rights in the name of predecessor in the interest of the defendants though seventy five years have elapsed and on the basis of settled principle of law that the son of a deceased wife of a former husband do not get any share in the property left by the deceased; went on to hold that the learned court below has rightly decided the issue No. (5) that there is no unity of title and affirmed the judgment and decree passed by the learned trial court and dismissed the appeal.

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Mr. Arun Kumar- learned counsel for the appellants submits that the learned courts below failed to take note of the fact that in the Record of Rights in respect of Khata No.267, the name of Somra has been mentioned as son of Buchu Bhandari. It is next submitted that both the courts below have failed to take into consideration, the deposition of the D.W.3 that there is one and only person namely Somra Oraon, son of Buchu Bhandari in their village. Mr. Arun Kumar next submits that both the courts below also failed to consider that the D.W.5 in para-8 of his deposition contradicted the pleadings of the defendants made in their written statement by saying that no person namely Buchu Bhandari was residing in their Bendora village which is contrary to the pleadings in para-12 of the written statement; wherein the defendants pleaded that there were more than one Buchu Bhandari and the Record of Rights in respect of Khata No.267 has been containing the entry of Somra Oraon son of some other Buchu Bhandari who is not the son of Charo Oraon. Hence, it is submitted that the judgment and decree passed by both the courts below be set aside and the suit of the plaintiffs be decreed after formulating appropriate substantial question of law.

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Having heard the submission of the learned counsel for the plaintiffs and after going through the materials available in the record, the undisputed fact remains as has come through the evidence of the plaintiffs that in Ext. 10, which is the Record of Rights in respect of the suit land; it has been categorically mentioned that the same stands recorded in the name of Manjhi Oraon. In the remarks column, the name of Somra has been mentioned as ‘Katbhai’. It has come through the evidence of P.W.4- Budhu Oraon who is also a plaintiff that ‘Katbhaiya’

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S.A.No.09 of 2018

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means the son of a lady who married a second husband while having the son from the first husband. It is undisputed fact that such ‘Katbhaiyas’ are not entitled to right of inheritance of the property of the deceased father. Though the plaintiffs were very much aware about such entry yet they have not challenged the veracity of the same. The entry in the Khatiyan has remained intact for seventy five years. Reliance upon the same by both the courts in arriving at the finding of facts that there is no unity of title and possession in respect of suit land between the parties, in the considered opinion of this Court is not a perverse finding.

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This Court finds that the concurrent finding of facts arrived at by both the courts below was not made by ignoring or excluding relevant materials or by taking into consideration irrelevant materials nor the findings of the courts below so outrageously defies the logic as to suffer from the vice of irrationality incurring the blame of being perverse.

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In the absence of any perversity in the finding of facts arrived at by both the courts below, this Court do not find any justifiable reason to interfere with the concurrent finding of facts arrived at by both the courts.

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After carefully going through the evidence in the record, this Court do not find any substantial question of law involved in this appeal. Accordingly, this appeal, being without any merit, is dismissed but under the circumstances without any costs.

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Let a copy of this judgment be sent to the courts concerned forthwith.

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(Anil Kumar Choudhary, J . )

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High Court of Jharkhand, Ranchi Dated the 03^rd of July, 2023 AFR/ Animesh

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Somari Devi And Ors. v. Mahadeo Oraon And Ors.

Case brief

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Somari Devi And Ors. v. Mahadeo Oraon And Ors.

Case brief

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