Ramdeni Uraon And Ors. Vs Shanichar Uraon And Ors.

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IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.59 of 2017

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1(a) Jagarnath Oraon, aged about 63 years

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1(b) Parasu Uranv, aged about 45 years

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Both sons of Late Ramdeni Uraon, Resident of Village –Bahiyar Khurd, P.O. –Tandwa, P.S. –Ramna, District –Garhwa.

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1(c) Sukunti Devi, D/o Late Ramdeni uraon, aged about 48 years, W/o Shivnath Urawn, R/o Village –Farthiya, P.O. –Hur, P.S. – Garhwa, District –Garhwa.

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1(d) ChandariDevi, D/o Late Ramdeni Uraon, W/o Nanku Urao, aged about 58 years, R/o –Village –Khajuri, P.O. –Lagma, P.S. – Garhwa, District –Garhwa.

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1(e) Sugia Kunwar, W/o Late Chanardev Uraon, aged about 44 years

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1(f) Pappu Uraon, S/o Late Chanardev Uraon, aged about 26 years,1(e) & 1(f) both R/o Village –Bahiyar Khurd, P.O. –Tandwa, P.S. –Ramna, District –Garhwa.

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Bifani Devi, Wife of Jataru Uraon, Resident of village –Binatikar, P.O. & P.S. –Ramuna, District –Garhwa.

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3(a) Ramesh Uraon, S/o Mahipat Uraon & Fulmatiya Devi

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3(b) Umesh Uraon, S/o Mahipat Uraon & Fulmatiya Devi

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3(c) Uday Uraon, S/o Mahipat Uraon & Fulmatiya Devi

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3(d) Sheelwanti Devi

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3(a) to 3(d) All resident of Village –Bahiyar, P.O. & P.S. –Ramuna, District –Garhwa, Jharkhand

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Sukani Devi, Wife of Laljee Uraon, Resident of Village – Nagdarwa, P.O. –Farathiya, P.S. & District –Garhwa.

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Nathuni Uraon

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6(a) Laxminiya Devi, W/o Late Jaishri Uraon

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6(b) Lalmohan Oraon, S/o Late Jaishri Uraon

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6(c) Surendra Oraon, S/o Late Jaishri Uraon

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6(d) Dina Oraon, S/o Late Jaishri Uraon

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6(e) Babalu Oraon, S/o Late Jaishri Uraon

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6(f) Basiya Devi, D/o Late Jaishri Uraon

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6(g) Ranpatiya Devi, D/o Late Jaishri Uraon

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6(h) Rita Devi, D/o Late Jaishri Uraon

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All resident of village –Bahiyar, P.O. –Tandawa, P.S. –Ramuna, District –Garhwa, Jharkhand.

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Sitaram Uraon

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No. 5 & 7 are sons of Tikuli Uraon

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Laldeo Oraon

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Chhotu Oraon

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Lalmuni Oraon @ Xalmuni Oraon

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All sons of late Thurai Oraon,

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Chanarbashi Devi, wife of Rameshwar Oraon and daughter of late Thurai Oraon

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Sundari Devi, wife of Chandaru Oraon and daughter of late

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Thurai Oraon

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Sudeshwar Uraon 14. Umeshwar Uraon 15. Mukesh Uraon 16. Moti Uraon 17. Rajkeshwar Uraon 18 (a) Sanjay Uraon, S/o late Mohar Uraon 18(b) Vijay Uraon, S/o late Mohar Uraon 18(a) & 18(b) both residents of village –Bahiyar Khurd, P.O. – Tandwa, P.S. –Ramuna, District –Garhwa.

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Rajkumar Uraon Nos. 13 to 17 and 19 all sons of Rampeyari Uraon

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Tejwa Kuer, wife of late Ramdeo Uraon

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Naresh Uraon

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Suresh Uraon

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Bihari Uraon

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Nos. 21 to 23 sons of late Ramdeo Uraon,

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Nos. 5 to 23 are residents of village –Bahiyar Khurd, P.O. –Tandwa, P.S. –Ramuna, District –Garhwa.

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Panpuri Devi, wife of Harihar Uraon and daughter of late Ramdeo Uraon, Resident of village –Kathar Kalla, P.O. –Sagma, P.S. –Dhurki, District –Garhwa.

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Maheshri Kuer, wife of late Jhorwa Uraon and Daughter of late Ramdeo Uraon, Resident of Village –Chiraiyatand, P.O. – Bhawnathpur, P.S. –Bhawnathpur, District –Garhwa.

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Suneshri Devi, wife of Charitar Uraon and daughter of late Ramdeo Uraon, resident of village –Dharti Dolwa, P.O. & P.S. – Bindhamganj, District –Sonbhadra (Uttar Pradesh).

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Fuleshri Devi, daughter of late Ramdeo Uraon, resident of village –Patagarh, P.O. & P.S. –Nagar Untari, District –Garhwa. 28. Etwariya Kuer, wife of late Ramdhari Oraon,

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Rajmohan Oraon

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Rajeshwar Oraon

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Sheokumar Oraon, all 29 to 31 sons of late Ramdhari Oraon All 28 to 31 are residents of village –Bahiyar Khurd, P.O. –Tandwa, P.S. –Ramuna, District –Garhwa.

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Surji Devi, wife of Naresh Oraon, Resident of Village –Farathiya, P.O. –Udsuggi, P.S. & District –Garhwa.

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Bhagwanti Devi, wife of Puran Oraon, resident of village – Garbandh, Tola –Ratgarh, P.O. & P.S. –Nagar Untari, District – Garhwa.

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Rajwanti Devi, wife of Suresh Oraon, Resident of Village – Bidanda, P.O. & P.S. –Majhiaon, District –Garhwa.

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Harihar Uraon, 36. Rameshwar Uraon, both 35 & 36 sons of late Kail Uraon Both 35 and 36 are residents of village –Bahiyar Khurd, P.O. – Tandwa, P.S. –Ramuna, District –Garhwa.

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.... .... …. Defendants/Appellants/Appellants Versus

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(Deleted)

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Raimat Uraon @ Raiyat Uraon

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Pragash Uraon

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Premnath Uraon All 2 to 4 are sons of late Shanichar Uraon, and residents of Village – Bahiyar Khurd, P.O. –Tandwa, P.S. –Ramuna, District –Garhwa.

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.... .... …. Palintiffs/Principal Respondents/Principal Respondents 5. The Deputy Commissioner, Garhwa, at P.O., P.S. & District –Garhwa. 6. Najaban Bibi, wife of late Sahabuddin Mian

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Nurruddin Ansari,

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Kamruddin Ansari

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Jamir Ansari All 7 to 9 sons of late Sahabuddin Mian 10. Mebina Bibi 11. Julekha Bibi 12. Sakina Bibi All 10 to 12 daughter of Sahabuddin Mian 13. Wazralli Mian, son of late Mowal Mian 14. Umesh Kahar, son of Tulsi Kahar 15. Hari Mistri, son of Dashrath Mistri 16. Chatargun Mahto, son of late Dhannu Mahto 17. Taufique Mian, son of Mahmmuddin Mian 18. (Deleted) 19. Nanhu Ansari 20. Jubair Ansari Both 19 and 20 sons of late Alamgir 21. Tetri Kuer, wife of late Bandhu Sao 22. Ramjee Sao 23. Bindo Sao 24. Sheo Sao 25. Bhaguni Sao 26. Shankar Sao 27. Fuldash Sao, All 22 to 27 S/o late Bandhu Sao 28. Reyajuddin Mian, son of late Nanhu Mian 29. Jageshwar Uraon, son of late Shanichar Uraon 30. Rasool Mian, son of Sukrati Mian 31. Reyajuddin Mian, son of Mohamddin 32. Rasool Mian, S/o Sukrati Mian 33. Asrar Mian, son of Dost Mohammad 34(a) Sudeshwar Uraon, S/o late Rupdeo Uraon 34(b) Rajnath Uraon, S/o late Rupdeo Uraon 34(c) Birendra Uraon, S/o late Rupdeo Uraon 34(d) Prabhu Uraon, S/o late Rupdeo Uraon All residents of village –Bahiyar, P.O. & P.S. –Ramuna, District –Garhwa. 35. Rajaram Uraon, son of Jatan Uraon 36. Rahmat Uraon 37. Suresh Uraon 37. Jaimat Uraon

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38(a) Rajkumar Uraon, S/o Late Ramjee Uraon 38(b) Bulu Uraon, S/o Late Ramjee Uraon 38(c) Upendra Uraon, S/o Late Ramjee Uraon 38(d) Joginder Uraon, S/o Late Ramjee Uraon 38(e) Nandlal Uraon, S/o Late Ramjee Uraon 38(f) Munna Uraon, S/o Late Ramjee Uraon 38(a) to 38(f) All residents of village –Bahiyar, P.O. & P.S. –Ramuna, District –Gahrwa 39. Harendra Uraon 40. Ashok Uraon

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.... .... …. Respondent Nos. 39 & 40 are defendants/Appellants/Respondents Both 39 & 40 are sons of late Jagmohan Uraon and all 6 to 40 are residents of village –Bahiyar Khurd, P.O. –Tandwa, P.S. –Ramuna, District – Garhwa

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.... .... …. Respondent Nos. 5 to 38 are defendants/Proforma Respondents/ Proforma Respondents

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------ For the Appellants : Mr. Pankaj Srivastava, 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 learned counsel for the appellants.

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This second appeal has been preferred under Section 100 of Code of Civil Procedure against the judgment and decree of affirmance dated 28.11.2016 passed by the learned District JudgeIII, Garhwa in Title Appeal No.26 of 2012 whereby and where under, the learned first appellate court dismissed the appeal on contest.

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The brief fact of the case is that the plaintiffs who are the respondents of this second appeal filed Title (Partition) Suit No. 56 of 1996 in the court of learned Civil Judge (Senior Division), Garhwa with a prayer for declaration of their half share in respect of Schedule ‘Ka’ and one-third share in the lands mentioned in Schedule ‘Kha’ of the plaint with further prayer to pass a

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preliminary decree in their favour and thereafter to carve out separate Takhta of the plaintiff by appointing Pleader Commissioner.

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The case of the plaintiff in brief is that the Schedule ‘Ka’ land of the plaint came in the joint possession of Chulhai Uraon and Prit Uraon after the person in whose name such land was recorded in the survey records absconded. Subsequently the names of Chulhai Uraon and Prit Uraon were recorded in the settlement papers and Rs.33/- was fixed as rent. The plaintiffs further pleaded that the land described in Schedule ‘Kha’ of the plaint was the raiyati land of the common ancestor of the parties to the suit namely Shankar Uraon. The plaintiffs claimed that both the plaintiffs who are the descendants of Prit Uraon and defendants who are the descendants of Chulhai Uraon have half share each in Schedule ‘Ka’ of Khata No. 28 and as Shankar Uraon had three sons namely Prit Uraon, Chulhai Uraon and Jhari Uraon, hence the plaintiffs being the descendants of Prit Uraon have one-third share in the Schedule ‘Kha’ land of the plaint of Khata No. 43 and Khata No.18. The defendant nos. 7 to 11 being the descendants of Jhari Uraon are entitled to one-third share of Schedule ‘Kha’ property of the plaint and the defendant nos. 1 to 6 being the descendants of Chulhai Uraon are entitled to half share of Schedule ‘Ka’ and one-

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third share of the Schedule ‘Kha’ land. The plaintiffs pleaded that there has not been any partition by metes and bounds between the plaintiffs and the defendants and the defendants who are larger in number deprived the plaintiffs from their valid right. The

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defendant nos. 1 to 12 have permitted the defendant nos. 13 to 29 for construction of their houses and they are getting the land cultivated by the defendant nos. 13 to 29 illegally in view of the bar to transfer tribal lands. The plaintiffs demanded partition but the defendants refused partition. The plaintiffs filed suit for partition but the same was dismissed for non-impleading of the Deputy Commissioner as a party, hence the Deputy Commissioner has been impleaded as a party by the plaintiffs.

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The defendant nos. 1 to 11 appeared and contested the suit by filing joint written statement. They challenged the maintainability of the suit on various technical grounds. The defendants further challenged the genealogical table given in para3 of the plaint being false and concocted. The defendants pleaded that the plaintiffs are the strangers to the family of Shankar Uraon. The defendants further pleaded that the plaintiffs are neither linked nor connected with them nor they are the sons of Prit Uraon. Hence the plaintiffs are not entitled to any share in the suit land. The defendant nos.6 to 6(c), 7 to 7(d) and 8 to 8(g) also appeared and contested the suit by filing joint written statement. They have taken the same plea as that of the defendant nos. 1 to 11. The defendants further pleaded that the suit is bad for non-joinder of necessary parties of Ram Bhajan and others. The defendant denied any existence of unity of title and possession with the plaintiffs in respect of the suit land. The defendant nos. 13 & 14 contested the suit by filing joint written statement. They also pleaded the similar ground as pleaded by the defendant nos. 1 to

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The defendant no.12 –Deputy Commissioner was a proforma

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defendant. He did not appear nor filed any written statement.

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

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trial court settled the following nine issues:-

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1. Is the suit maintainable as framed?

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2. Whether the plaintiffs have valid cause of action for the suit?

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3. Has the suit been properly valued and whether Court fee has sufficiently been paid by the plaintiffs?

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4. Whether the suit is barred by law of limitation, adverse possession, estoppel, waiver and acquiescence?

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5. Whether the suit is barred under Section 34 of the Specific Relief Act or under any law for the time being in force?

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6. Whether the plaintiffs have valid right, title and interest in the suit property?

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7. Whether there is unity of tile and community of possession between the parties with regard to the suit properties?

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8. Whether plaintiffs are entitled to get half share in the properties described in Schedule ‘Ka’ and 1/3 share described in Schedule ‘Kha’?

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9. To what more relief or reliefs the plaintiffs are entitled?

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In support of his case, the plaintiffs’ altogether examined seventeen witnesses and proved the documents which have been marked Ext. 1 to Ext.9. On the other hand from the side of the defendant nos.1 to 11 altogether twenty five witnesses were examined as D.W.1 to D.W.25. These defendants also proved the documents which have been marked Ext. A to G/2. The defendant nos. 13 & 14 examined nine witnesses being D.W.26 to D.W.34 and they also proved the documents which has been marked Ext. A to Ext. A/10.

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The learned trial court first took up issue no. 6 and after considering the evidence in the record came to the conclusion that the plaintiffs have valid right, title and interest over the suit land

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and decided the issue in their favour and against the defendants

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except the defendant no.12. The learned trial court next took up issue no.7 and after considering the evidence in the record came to the conclusion that the legal heirs of both Chulhai Uraon and Prit Uraon have unity of title and community of possession over the lands of Khata No.28 under Schedule ‘Ka’. The learned trial court next took up issue no.8 and after considering the materials in the record came to the conclusion that the plaintiffs are entitled to half share of Schedule ‘Ka’ land of the plaint and one-third share in Schedule ‘Kha’ properties of the plaint. The learned trial court next took up issue nos. 1, 2, 3, 4 & 5 together and held that the suit is maintainable. The plaintiffs have valid cause of action for filing the suit. The suit is not barred by limitation, adverse possession, estoppel, acquiescence or under Section 34 of the Specific Relief Act or under any law for the time being in force. The court fees and the valuation of the suit is proper. Lastly, the learned trial court took up issue no.9 and held that the plaintiffs are not entitled to any other relief than the one prayed for and decreed the suit vide its judgment dated 31.08.2012.

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Being aggrieved by the judgment and decree passed by the learned Civil Judge (Senior Division), Garhwa in Title (Partition) Suit No. 56 of 1996 dated 31.08.2012, the defendants filed Title Appeal No. 26 of 2016 in the court of learned Principal District Judge, Garhwa 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 on the basis of the materials

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in the record and submissions made before it, formulated the

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following two points for determination :-

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“(1) Is the original plaintiff no.1 Sanichar Oraon S/o Govind Oraon who was the son of Prit Oraon, the son of recorded Raiyat Shankar Oraon or not?

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(2) Has the learned lower court decided the issues lawfully in light of the evidences brought on record of the case or not?”

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The learned first appellate court first took up the point for determination no. (1) and after considering the fact that the P.W.2, P.W.6, P.W.7, P.W.8, P.W.10 and P.W.17- the one of the plaintiff himself, having supported the case of the plaintiffs which is also supported by the Voters List which has been marked Ext.3, in which the father’s name of the plaintiffs Sanichar Uraon- one of the plaintiffs has been mentioned as Govind Uraon and also Ext.3/A which is another Voters List as well as the Ext.5 series which are the parchas issued during the Revisional Survey Operation and Ext.8 & 8/A which are the certified copy of the Raiyati Khatiyan prepared during the Revisional Survey Settlement Operation which stood recorded in the name of Sanichar Uraon, the learned first appellate court came to the conclusion that the oral as well as the documentary evidence available in the record is sufficient to establish that the plaintiff Sanichar Uraon is the son of Govind Uraon who was the son of Prit Uraon and the undisputed fact that Prit Uraon was the son of Shankar Uraon- the common ancestor of the plaintiffs and the defendants and also observed that the plea of the defendant that Govind Uraon was also known as Dwarika Uraon and Birjan and Durjan were the heirs of Dwarika Uraon held to be falsified by the learned first appellate court after making

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independent appreciation of the evidence in the record. The learned first appellate court next took up point for determination no.(2) and after making independent appreciation of the evidence available in the record came to the conclusion that the learned trial court has rightly decided the issues on the basis of the weight of the evidence available in the record and arrived at the proper finding and dismissed the appeal.

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It is submitted by the learned counsel for the appellants that both the courts below could not appreciate the evidence in the record in their right perspective. It is then submitted by the learned counsel for the appellants that both the courts below have failed to take note of the fact that the suit in fact was a suit for declaration and not a suit for partition as was made out. It is next submitted that the learned first appellate court could not decide the appeal in accordance with law. 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 dismissed after formulating appropriate substantial question of law.

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Having heard the submissions made at the Bar and after carefully going through the materials in the record, it is pertinent to mention here that it is a settled principle of law that in exercise of power under Section 100 of the Code of Civil Procedure, 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 reiterated by the Hon’ble Supreme Court of India, in the case of the case of Gurvachan Kaur

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and Others vs. Salikram (dead) through LRS. , reported in (2010)

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15 SCC 530, paragraph -10 of as under:-

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"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 landlordtenant relationship between the plaintiff and the defendant and default committed by the latter in payment of rent." (Emphasis Supplied).

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A concurrent finding of fact is said to be perverse when the

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same is passed by ignoring any admissible evidence and considering any admissible evidence and when the findings of facts is based on no evidence or when the findings of facts outrageously defies the logic so as to incur the blame being perverse.

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Now coming to the facts of the case, both the courts below have considered the evidence in the record including the oral testimony of the material witnesses being the P.W.7, P.W.8, P.W.10, P.W.17 as well as the documentary evidence marked Ext. 3, 3/A which are the Voters List and Ext. 5 series which are the Parchas , Ext. 8 and 8/A which are the certified copy of the Raiyati Khatiyan which stands recorded in the name of the plaintiff – Sanichar Uraon in arriving at the conclusion that the plaintiff has succeeded in establishing that he is the son of Govind Uraon who was undisputedly the son of Prit Uraon and Prit Uraon, undisputedly even by the defendants was the son of Shankar Uraon. As the undisputed fact remains that the Schedule ‘Ka’ land

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of the plaint stood recorded in the name of Chulhai Uraon and Prit Uraon and as the courts below have arrived at the conclusion that the plaintiffs are the descendants of Prit Oraon, as Sanichar Uraon being the son of Govind Uraon who was in term the son of Prit Uraon and the defendants are the descendants of Chulhai Uraon, hence the finding of fact arrived at by both the courts below that plaintiffs are entitled to half share Schedule ‘Ka’ land and onethird share of Schedule ‘Kha’ land, in the considered opinion of this Court, cannot be termed as perverse.

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