Jharkhand High Court
Nepal Gorai vs Uttar Gorain on 18 December, 2014
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Second Appeal No.454 of 1992
Nepal Gorai ...... Appellant
Versus
Uttar Gorain & Others ...... Respondents
CORAM: HON'BLE MR. JUSTICE D.N. UPADHYAY
For the Appellant : Mr. Manjul Prasad, Sr. Advocate
Mr. R.R. Tiwari, Advocate
Mr. Jitesh Kumar, Advocate
For the Respondents : Mr. J.P. Jha, Sr. Advocate
Mr. Rajiv Lochan, Advocate
Order No.10 Dated : 18
th
December, 2014
This appeal has been preferred by the defendant/appellant against the judgment dated 28.09.1992 and decree dated 12.11.1992 passed and signed by learned 1st Additional Sessions Judge, Dumka in connection with Title Appeal No.45 of 1987 whereby the judgment and decree passed by learned SubJudgeI, Jamtara in connection with Title Suit No.67 of 1970 have been affirmed and the appeal preferred by the defendant/appellant stood dismissed by the lower appellate Court.
2. This appeal was admitted on 17.02.1993 after formulating following substantial question of law: "Whether the finding that Nepal Gorai (appellant) was not entitled to inherit the properties of his father Bhim as recorded in para18 of the judgment of the lower appellate Court is correct and sustainable in law ?"
3. It appears that a suit was brought by the plaintiff/respondent before SubJudge1, Jamtara vide Title Suit No.67 of 1970 for declaration that adoption of defendant no.2 by defendant no.1 is invalid and no such adoption had ever taken place or given effect to and therefore cancellation of alleged deed of adoption. The plaintiff have also sought for declaration with regard to their right, title and interest over the suit land. Further prayer is made for confirmation of plaintiff's possession over scheduleA land and delivery of possession over scheduleB land through process of the court along with the cost of the suit and for further declaration that the plaintiffs are entitled for the amount lying in deposition in T.R. No.161 of 1972. It is further admitted that plaintiffs and defendants are Hindu governed by Dayabhag School of Hindu Law. According to genealogical table, the common ancestor Hriday Gorain had four sons namely Ananda, Basudev, 2. Binand and Aju. Ananda had four sons naely Nakul, Bhim, Arjun and Daru. Basudeo died issueless. Binanda had only son namely Kutur (one of the plaintiff). Aju Gorai died issueless leaving behind his two widows Giri Bala and Radha Bala. Originally the suit was filed by Nakul, Arjun and Daru, sons of Ananda and Kutur son of Binanda. Radha Bala, widow of Aju Gorai, Nepal Gorai son of Bhim Gorai (appellant) and Bhim Gorai were defendant no.1 to defendant no.3 in the original suit. Radha Bala and Bhim Gorai died during pendency of the suit.
4. The trial court as well as the lower appellate court have concurrently held that Nakul Gorai (appellant) was not the adopted son of Aju Gorai and no adoption had ever taken place or given effect to by the widow of Aju Gorai at any point of time. The adoption deed brought on record has also been concurrently declared as null and void and it is held that on the basis of said adoption appellant Nakul Gorai cannot make any claim over the suit property. The plaintiffs have never made prayer for declaration that Nakul Gorai (appellant) is not entitled to inherit the properties of his father Bhim Gorai. Therefore, substantial question of law referred to above has been framed to decide the appeal.
In course of extending argument learned counsel appearing for the respondents has been in agreement that courts below have inadvertently or due to oversight have held that Nepal Gorai was not entitled to inherit the properties of his father Bhim Gorai.
In view of the agreement expressed by learned counsel for the respondents, learned counsel appearing for the appellant has submitted that substantial question of law as framed by this court is then available and findings of the courts below to the extent that Nepal Gorai is not entitle to inherit the properties of his father Bhim Gorai is liable to be set aside and the appeal may be allowed.
5. I have gone through the records of the courts below and the impugned judgments. The observation made by the courts below that Nepal Gorai was not entitled to inherit the properties of his father Bhim Gorai appears to be beyond the pleadings and prayer. Learned counsel for the respondent has fairly conceded that Nepal Gorai (appellant) cannot be debarred from inheriting the properties of his biological father Bhim Gorai.
6. In view of the above, the findings of the court below and decree 3. prepared to the extent that Nepal Gorai (appellant) is not entitled to inherit the properties of his father Bhim Gorai stands set aside. It is made clear that as per the law and customs applicable to the family of the plaintiff and defendant, the appellant Nakul Gorai is entitled to inherit the properties of his father Bhim Gorai and he cannot be debarred from inheriting the properties of his father Bhim Gorai.
7. With these observations and modification, this appeal stands allowed.
(D. N. Upadhyay, J.) NKC