Prabhu Oraon Alias Prabhu Pahan And Anr. Vs Chandar Oraon And Ors.

This second appeal under Section 100 of Code of Civil Procedure has been preferred against the judgment and decree dated 04.07.2017 passed by the learned Principal District Judge, Gumla in Title Appeal No.16 of 2015 whereby and where under by a Judgment of concurrence the learned Principal District Judge has dismissed the appeal on contest.

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The brief facts of the case is that the plaintiffs who are the appellants herein filed Title Suit No. 27 of 2006 in the court of Civil Judge (Senior Division) –I, Gumla for declaration of their right, title and interest and for confirmation of their possession over the suit land.

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The case of the plaintiffs is that the parties to the suit are Oraon by caste and are governed by Oraon Customary Law, according to which the widows are not entitled to inherit the property left by their husbands but they are only entitled for maintenance during their life time or till their marriage. Similarly, the daughters are also not entitled to inherit the property left by their father but they are only entitled for maintenance till their marriage. The plaintiffs and the proforma defendant nos. 11 to 20 are the members of Pahnai Khunt. The Khewat No. 29/03 was recorded in the name of the ancestors of the plaintiffs and proforma defendants whereas Khewat No. 29/04 was recorded in the name of the ancestor of the defendants. Khewat No. 29/06 was recorded in the name of the

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ancestors of the defendant nos. 5 to 9, Khewat No. 29/11 was recorded in the name of ancestor of defendant nos. 6 & 8, Khewat No. 29/09 was recorded in the name of ancestor of ancestor of defendant no.2 and 3 and Khewat No. 29/20 was recorded in the name of ancestor of defendant no.7. Hence, the plaintiffs claim right, title, interest and confirmation of possession in respect of Khewat No. 29/03.

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In their written statement, besides challenging the maintainability of the suit on various technical grounds, the defendants pleaded that the suit land was neither the recorded land of the plaintiffs nor their personal land. The defendants specifically pleaded that as per Oraon Customary Law, Pahnai land is the land of entire village and the Pahan is to perform puja according to the custom and as per the customary law and the duty of Pahan is changed after every three years and accordingly the Khewat is also prepared as per customary law. The defendants further pleaded that Khewat No. 29/03 is a Bhuinhari Pahnai Khewat and the Pahan is changed after every three years and a new Pahan is selected by Pai Gudi Rengai and the selection procedure of the Pahan is that a minor child who is blindfolded is given a Sup , the boy goes and enters the house of the new Pahan and in which house the boy enters, is accepted as a Pahan for next three years and thereafter, the land comes in possession of the Pahan for a period of next three years and further Record of Right with respect to Pahnai Land is prepared in the name of Pahan who was found to be on duty of Pahan. The defendants pleaded that in this case, the Khewat No. 29/03 was recorded during the preparation of the Record of

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Rights in the year 1934 and since Koyla Pahan and Bhikhari Pahan were performing the duty of Pahan at that time, as such they are recorded as Pahan in the Record of Right. The defendants next pleaded that since the post of Pahan is temporary post for the period of three years and the land is attached with the service, therefore, after the completion of the tenure, the land will go to the new Pahan. The defendants also pleaded that the genealogical table furnished in the plaint is not correct as the plaintiffs have failed to include the names of the ancestors of the defendants who are also of Bhuinhari Pahan Khunt . The defendants next pleaded that at the time of filing of the written statement, Chandar Pahan has been selected as the Pahan of the village, Soma Pahan has been selected as Panbhara and Gandua Oraon has been selected as Murgi Jhora. Therefore, the present office bearers have got entire right over the lands in question.

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On the basis of the rival pleadings of the parties, the learned trial

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court altogether settled the following seven issues:-

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“(1) Whether the suit as framed is not maintainable?

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(2) Whether the plaintiffs have got valid cause of action for the present suit?

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(3) Whether the suit is barred by Law of Limitation, estoppel, acquiescence and adverse possession?

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(4) Whether the suit is bad for non-joinder of necessary parties?

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(5) Whether the plaintiffs and proforma defendants have got right, title and interests over the suit lands?

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(6) Whether the plaintiffs and proforma defendants are entitled for a decree of confirmation of possession over the suit land?

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(7) To what relief or reliefs the plaintiffs are entitled to?”

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In support of their case, the plaintiffs’ altogether examined four

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witnesses and proved the documents which has been marked Ext. 1 to 3

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whereas from the side of the defendants, altogether six witnesses were examined and the defendants proved the documents which have been marked Ext. A and B.

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The learned trial court first took up issue no.5 and after considering the evidence in the record and also taking note of the fact that the land in question is not the personal property of any person, came to the conclusion that the plaintiffs have failed to establish their right, title and interest over the suit land and the ownership of the land is transferable every three years to the new Pahan appointed, hence the plaintiffs have no right, title and interest over the suit land. The learned trial court next took up issue no.6 and answered the same against the plaintiffs in the negative. Similarly, in respect of issue nos. 3 & 4 next taken up by the learned trial court, the issues were answered in the negative and lastly the learned trial court took up issue nos. 1, 2 & 7 together and arrived at the conclusion that there is no cause of action for the suit and the plaintiffs are not entitled to the reliefs prayed for and answered the same in the negative and dismissed the suit.

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Being aggrieved by the Judgment and Decree dated 30.06.2015, passed in Title Suit No. 27 of 2006 by the learned Civil Judge (Sr. Division) –I, Gumla, the appellants preferred Title Appeal No. 16 of 2015 in the court of Principal District Judge, Gumla which was ultimately heard and disposed of by the learned Principal District Judge by the said Judgment dated 04.07.2017.

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The learned Principal District Judge, Gumla, made independent

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appreciation of the evidence in the record and relevant law and took up issue nos. 5, 6 & 8 together. The learned Principal District Judge also considering the materials in the record held that the nature of the land shown in the Khatiyan is purely for religious purposes and it is attached with the office of Pahan and the person who help the Pahan in performing his religious duty, so long, he is in the office and works as a Pahan and the person, who assist the Pahan and the moment, such person ceased to work as Pahan or to assist the Pahan after the expiry of three years, as per the customary law, a new Pahan and the person who assists the Pahan in performing the religious duty is selected and the suit land having been attached to the office of Pahan will go to the new Pahan and by thus considering, came to the conclusion that the plaintiffs have failed to establish the individual right, title and interest and decided the three issues against the plaintiffs. The learned first appellate court next took up issue nos. 3 & 4 and held that the suit is not barred by limitation, estoppel, acquiescence, adverse possession and it is also not bad for nonjoinder of necessary parties. Lastly, the learned first appellate court took up issue nos. 1, 2 & 7 and held that the plaintiffs have got no valid cause of action for the suit and the suit as framed is not maintainable in the present form and the plaintiffs are not entitled to get any relief and dismissed the appeal.

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It is submitted by the learned counsel for the appellants that both the courts below have committed gross error in appreciation of the evidence in the record and finding of facts arrived at by both the courts

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below are perverse. It is next submitted by the learned counsel for the appellants that both the courts below have misconstrued the Ext. 1 to 3 adduced on behalf of the plaintiffs which conclusively proved that the suit property was recorded in the Khatiyan in the name of ancestors of the appellants. Hence, it is submitted that both the Judgment and decree passed by the learned trial court as well as the appellate court being not sustainable in law, the same be set aside after formulating substantial question of law and the suit of the plaintiffs be decreed.

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Having heard the submissions made at the Bar and after going through the materials in the record, this Court finds that it is the case of the plaintiffs itself that the land in question is Pahnai Land. The undisputed fact remains that the ancestors of the plaintiffs at the relevant time were the Pahans but subsequently there has been change in Pahans in every three years, this Court do not find any fault in arriving at the concurrent finding of fact by both the courts below that the land in question is not the personal land of the plaintiffs or their ancestors but in the Khatiyan itself, it has been mentioned that the land is purely for religious purpose and attached with the office of Pahan . Under such circumstances, this Court do not find any improper appreciation of any evidence in the record or ignoring or excluding the relevant materials or by taking into consideration the irrelevant material nor the finding, so outrageously defies the logic so as to suffer from the vice of irrationality incurring the blame of being perverse.

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It is a settled principle of law as has been held by the Hon’ble

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Supreme Court of India in the case of Municipal Committee, Hoshiarpur vs. Punjab State Electricity Board & Ors. reported in 2010

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(13) SCC 216 , para 28 of which reads as under :-

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“28. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eye of the law. If the findings of the Court are based on no evidence or evidence which is thoroughly unreliable or evidence that suffers from the vice of procedural irregularity or the findings are such that no reasonable person would have arrived at those findings, then the findings may be said to be perverse. Further if the findings are either ipse dixit of the Court or based on conjecture and surmises, the judgment suffers from the additional infirmity of non-application of mind and thus, stands vitiated. (Vide Bharatha Matha v. R. Vijaya Renganathan [(2010) 11 SCC 483 : AIR 2010 SC 2685].“

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That perversity, so far as it relates to interfering with the findings of fact by exercise of the jurisdiction under Section 100 and 104 of the Code of Civil Procedure, is that if a finding of fact is arrived at by ignoring or excluding the relevant materials or by taking into consideration the irrelevant material or if the finding, so outrageously defies the logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding of fact is rendered infirm in the eyes of law or if the finding of the court is based on no evidence or evidence, which is thoroughly unreliable or the evidence that suffers from the vice of procedural irregularity or the findings are such that no reasonable person, would have arrived at those findings then such findings may be said to be perverse.

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