Jharkhand High Court
Ishwar Tuddu And Anr. vs Mattu Murmu And Ors. on 19 June, 2003
Equivalent citations: [2003(4)JCR145(JHR)], 2004 AIR - JHAR. H. C. R. 3088, (2003) 3 JLJR 429 (2003) 4 JCR 145 (JHA), (2003) 4 JCR 145 (JHA)
Author: Vishnudeo Narayan
Bench: Vishnudeo Narayan
JUDGMENT Vishnudeo Narayan, J.
1. This Revision has been preferred by second party petitioners Ishwar Tuddu and others against the impugned order dated 1.11.1989 passed in Criminal Miscellaneous Case No. 291 of 1986 tied up with Criminal Miscellaneous Case No. 255 of 1986 whereby and whereunder possession of first party O.P. Shankar Murmu and others was declared in respect of the land in dispute appertaining to Zamabandi No. 9 situate in village Karanpura P.S. Hiranpur in the District of Sahebganj now Pakur and second party petitioner were also directed not to disturb the peaceful possession of the first party O.P. till otherwise ordered by some competent Court of law.
2. The facts giving rise to this Revision are as follows :--
The first party O.P. send a petition through registered post to the Sub-Divisional Officer, Pakur on 6,5.1986 stating therein that the land of Zamabandi No. 9 situate at village Karanpura P.S. Hiranpur stands jointly recorded in the name of Thakur Murmu and Kanhu Murmu sons of Chhoto Jaddu Murmu and Mattu Murmu and Shankar Murmu (First Party before the Court below) sons of Samal Murmu. It has been alleged therein that Kanhu Murmu died issueless and Thakur Murmu also died leaving behind a son Jaddu Murmu who also died leaving behind two daughters, namely, Champa Murmu and Manjhang Murmu and the marriage of the aforesaid two daughters of Jaddu Murmu was performed in the ordinary form. It is also alleged that Champa Murmu was married with second party petitioner Ishwar Tuddu and Manjhang Murmu was married with second party petitioner Madan Hasda and Champa Murmu has died about ten years ago in the house of her husband Ishwar Tuddu aforesaid and Manjhang Murmu is residing with her husband Madan Hasda in his village Manglapara P.S. Pakur. It is also alleged that Thakur Murmu and Kanhu Murmu had no heirs and as per the customary law of the Santhals, the entire land of Thakur Murmu and Kanhu came in possession of first party O.P. who are in the actual physical cultivating possession over the said land and the second party petitioners want to create disturbance in the peaceful cultivating possession of the first party O.P. with the help of the musclemen of the locality and the prayer was made for taking steps for safety of the life and property of the first party.
3. The Sub-Divisional Magistrate, Pakur forwarded the petition of the first party O.P. to the O.C. Hiranpur P.S. for enquiry and report. Thereafter, the O.C. Hiranpur submitted his report as per Non FIR No. 5 of 1985. The Sub-Divisional Magistrate, Pakur perused the report and ordered for initiation of a proceeding under Section 144 of the Cr PC against both parties vide order dated 19.7.1986 directing both the parties to show cause fixing 5.8.1986 and restrained both the parties from going to the land of Zamabandi No. 9 aforesaid.
4. It further appears that Ishwar Tuddu aforesaid had earlier filed a petition on 20.6.1986 before the Court of Sub-Divisional Magistrate, Pakur against first party O.P. aforesaid for initiating a proceeding under Section 145 of the Code of Criminal Procedure in respect of the land of Zama-bandi No. 9 which gave rise to Criminal Miscellaneous Case No. 255 of 1986 which was amalgamated with Criminal Miscellaneous Case No. 291 of 1986 vide order dated 19.8.1986.
5. It appears that after hearing both the parties the proceeding under Section 144 of the Code of Criminal Procedure was converted into the proceeding under Section 145 of the Code of Criminal Procedure vide order dated 17.9.1986 and notice was, accordingly, issued against both the parties to file their written statements on 3.10.1986. Both the parties in pursuance thereto filed their written statements. Thereafter, witnesses were examined on behalf of both the parties and rent receipts and one affidavit of Sitaram Pandey, the Pradhan of the village was brought on the record and admitted into evidence on behalf of first party O.P. The second party petitioner has brought on the reeord registered gharjamai deed purported to be executed by Jaddu Murmu in favour of his daughter Champa Murmu which is Ext. "A" in this case.
6. The case of first party O.P. in his written statement is that the land of Zamabandi No. 9 situate in village Karanpura P.S. Hiranpur stands recorded in the name of Thakur Murmu, Kanhu Murmu, Mattu Murmu and Shankar Murmu and Kanhu Murmu died issueless and Thakur Murmu died leaving behind a son Jaddu Murmu who also died leaving behind his two daughters Champa Murmu and Majhang Murmu and there was no partition of the land of Zamabandt No. 9 between the recorded tenants during their life time. The further case of the first party O.P. is that Jaddu Murmu died during the minority of his daughters and the first party O.P. brought up them and got their marriage solemnized in the ordinary form of marriage and they are residing with their respective husbands in their houses after the marriage and both the daughters of Jaddu Murmu had died about ten years ago in the house of their respective husbands. It is also alleged that the lands of Thakur Murmu and Kanhu Murmu were in peaceful exclusive cultivating possession of the first party O.P. along with other members of the first party O.P. as agnate of the recorded tenant and they are paying the rents in respect thereof.
7. The case of second party petitioner, inter alia, is that the land of Zamabandi No. 9 was partitioned between Thakur Murmu and Kanhu Murmu on the one hand and first parry O.P. Mattu Murmu and Shankar Murmu on the other hand in which Thakur Murmu and Kanhu Murmu got half share of land from northern side in each plot of Zamabandi No. 9 and Thakur Murmu and Kanhu Murmu were in joint cultivating possession of the land allotted to their share and after the death of Thakur Murmu, his son Jaddu Murmu inherited the land aforesaid which is the subject matter of this proceeding. The further case of the second party petitioner is that Jaddu Murmu had no son and as such he got the marriage of his daughter Champa Murmu solemnized with Ishwar Tudu, second party petitioner in gharjamai form as per prevalent custom and after the death of Jaddu Murmu, Champa Murmu along with second party petitioner Ishwar Tudu came in possession of the land in dispute and he is paying rent in respect thereof.His case further is that Champa Murmu died about seven years ago and the entire land came in possession of the second party petitioner Ishwar Tudu and the first party O.P. having greedy eyes intends to take forcible possession of the land in question without any legal right and as such there is serious apprehension of breach of peace by the first party O.P.
8. Assailing the impugned order it has been submitted by the learned counsel for the second party petitioner that the learned Court below has erred gravely in coining to the finding of the possession of the first party O.P. over the land in question in spite of the report of the police regarding the actual physical possession of the second party petitioner over the disputed land. It has also been submitted that the learned Court below also did not consider the oral and documentary evidence on the record and has committed a manifest error in disbelieving the registered gharjamai deed executed on 18.4.1968 by Jaddu Murmu in favour of his daughter Champa Murmu which is on the record as Ext. "A" and thus the impugned order is unsustainable.
9. Refuting the contention advanced on behalf of the second party petitioner it has been submitted by the learned counsel for the first party O.P. that the entire land of Zamabandi No. 9 stands jointly recorded in the records of rights in the name of Thakur Murmu. Kanhu Murmu, Mattu Murmu and Shankar Murmu and they were in joint possession over the same and there is no chit of paper on the record evidencing the fact of partition of the land of Zamabandi No, 9 and in this view of the matter the case of second party petitioner regarding partition of the land of Zamabandi No. 9 is totally incorrect and has been falsely set up. It has also been submitted that there is also no iota of any documentary evidence on the record to show that the second party petitioner was in actual cultivating possession of any portion of the land of Zamabandi No. 9 and no rent receipt has been brought by them on the record. It has also been contented that marriage of Champa Murmu was performed in the ordinary form of marriage and the alleged gharjamai deed is a forged and fabricated document in view of the fact that there is no whisper in respect thereof made either in the show cause or in the written statement of second party petitioner. Lastly it has been submitted that the learned Court below has meticulously scrutinized and considered the evidence on the record and has rightly come to the finding of the actual physical possession of the first party O.P. over the land of Zamabandi No. 9 and viewed thus there is no infirmity, impropriety or illegality in the impugned order.
10. It is an admitted fact that the land of Zamabandi No. 9 of village Karanpura, P.S. Hiranpur, District Pakur stands jointly recorded in the records of rights in the name of Thakur Murmu and Kanhu Murmu sons of Chhoto Jaddu Murmu as well as Mattu Murmu and Shankar Murmu, sons of Somai Murmu. Mattu Murmu and Shankar Murmu are the first party O.P. in this Revision. There B no dispute in the fact that Kanhu Murmu died issueless and Thakur Murmu also died leaving behind his son Jaddu Murmu who also died leaving behind two daughters Champa Murmu and Majhang Murmu. The second party petitioner Ishwar Tudu is the husband of Champa Murmu aforesaid whereas second party petitioner Madan Hasda is the husband of Majhang Murmu aforesaid. There is also no dispute in respect of the fact that marriage of Majhang Murmu has been performed in the ordinary form of marriage. It is also an admitted fact that Champa Murmu has died prior to the initiation of this proceeding before the Court below and according to the case of first party O.P. she has died about ten years ago but according to the case of second party petitioner she has died about seven years ago. However, it becomes an admitted fact that Champa Murmu has definitely died much before the initiation of this proceeding. The second party petitioner Ishwar Tudu claims to be in possession of the disputed property by virtue of his marriage with Champa Murmu daughter of Jaddu Murmu performed in the gharjamai form coupled with the fact that there had been a partition of the land of Zamabandi No. 9 between the recorded tenants in which northern half in each plot of Zamabandi No. 9 was allotted to Thakur Murmu and Kanhu Murmu aforesaid. The basis for the claim of possession of the first party O.P. is that there was never a partition of land of Zamabandi No. 9 between the recorded tenants at any point of time and marriage of Champa Murmu with Ishwar Tudu aforesaid was performed in ordinary form of marriage and deed of gharjamai is a forged and fabricated document and the first party O.P, is in exclusive cultivating possession of the entire land of Zamabandi No. 9 after the death of Jaddu Murmu aforesaid. It is relevant to mention at the very outset that Santhal Law of Succession is patriarchal and it does not recognize the female to succeed over the family property as female has no claim in the property. The daughter cannot succeed over the property of her deceased father unless she is married in the gharjamai form as the gharjamai daughter to all intent and purposes gets the reflexion of the son. As per the customary law of the Santhals, if the gharjamai daughter died issueless the property of the deceased will not devolve on the gharjamai or son-in-law and in the gharjamai form of marriage the son-in-law is the joint owner with his wife and his son and in the absence of these two he has no legal claim in the property and in such a situation he can only claim khorposh and maintenance so long he is alive and lives as a widower. It is equally pertinent to mention here that second party petitioner in his written statement has stated that Champa Murmu has died seven years ago but is conspicuously silent regarding the fact as to whether Champa Murmu has left behind her any male descendant. In this View of the matter whether the marriage of Champa Murmu with second party petitioner Ishwar Tudu has been solemnized either in gharjamai form of marriage or in the ordinary form of marriage pales into insignificance- in this case. It is equally relevant to mention here that there Is no chit of paper on the record brought on behalf of the second party petitioner to evidence the fact of partition of the land of Zamabandi No. 9 between the recorded tenants. There is consistent evidence on the record as deposed by the witnesses examined on behalf of the first party O.P. that the entire land of Zamabandi No. 9 is in actual physical cultivating possession of first party O.P. OW 2, Chuke Murmu examined on behalf of the second party petitioner in the concluding portion of his testimony has admitted in the most clear and unequivocal terms that the first party O.P. is in actual physical cultivating possession of the entire land of Zamabandi No. 9 PW 1 Kartik Paharia in his cross-examination at page 2 of his deposition has admitted that second party petitioner Ishwar Tudu cultivates the land of his natural father. The J.F. Gantzer Report (Final Report on the Revisional Survey and Settlements Operations in the District of Santhal Par-ganas 1922-35 published by Superintendent, Government Printing, Bihar, Patna 1936) In para 46 at page 23 states.
"The adoption of a gharjamai is a formal proceeding leaving no room for doubt as to the father-in-law's intention and resulting in the gharjamai cutting off all connection with his own family as far as his rights to property are concerned, and becoming t9 all intents and purposes the son of his father-in- law."
This aspect of the matter casts a cloud of suspicion to the very credibility of the case of second party petitioner Ishwar Tudu allegedly possessing the land of Zamabandi No. 9 by virtue of being a gharjamai of Jaddu Murmu deceased having his marriage performed with Champa Murmu in the gharjamai form. It further appears that Ext. "A" prima facie has no bearing at all regarding the factum of possession of second party petitioner over the disputed land. The learned Court below has meticulously considered the evidence on the record and has rightly come to the finding of the actual physical cultivating possession of the first party O.P. over the land of Zamabandi No. 9 on the date when the proceeding before the Court below was initiated. Therefore, I see no illegality or any impropriety in the impugned order requiring an interference therein.
11. There is no merit in this Revision and it fails. The Revision is hereby dismissed.