Gauhati High Court
U Bernard Kurbah & Ors vs Ka Bernadette Mary Kurbah & Ors on 17 November, 2011
Author: Anima Hazarika
Bench: Anima Hazarika
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM: NAGALAND: MEGHALAYA:
MANIPUR: TRIPURA: MIZORAM AND ARUNACHAL
PRADESH)
CR(P) No.(SH) 32/2005
1. U BERNARD KURBAH
MARBISU VILLAGE,
MARBISU SIRDARSHIP
EAST KHASI HILLS DISTRICT
MEGHALAYA.
Substituted in place of the petitioner by his legal heir-:
1(a).SMTI. JOAN KRISSILDA RANI,
D/O U BERNARD KURBAH,
MARBISU VILLAGE,
MARBISU SIRDARSHIP,
EAST KHASI HILLS DISTRICT,
MEGHALAYA.
...PETITIONER
-Versus-
1. KA BERNADETTE MARY KURBAH
2. KA RESETTA MARY KURBAH
BOTH OF RILBONG
SHILLONG,
EAST KHASI HILLS DISTRICT
MEGHALAYA.
...RESPONDENTS
PRESENT THE HON'BLE MRS. JUSTICE ANIMA HAZARIKA Advocate for the Petitioner : Mr. S. Sen Mr. HL Shangreiso Ms. SK Nongrum Advocates for the Respondents: Mr. C.H Mawlong Date of Hearing : 09.09.2011.
Date of Judgment : 17.11.2011.
JUDGMENT & ORDER
The legality and validity of the judgment dated 18.07.05 passed by the learned Judge, District Council Court, Khasi Hills, Shillong in Title Civil Appeal No. 2 of 2004 (in short TCA No. 2/2004) affirming the judgment and decree dated 16.07.04 passed in Title Suit No. 2 of 1989 (in short T.S. No. 2 of 1989) by the Presiding Officer, Subordinate District Council Court, Shillong have been called in question invoking power under Order 6 of the Assam High Court (Jurisdiction over District Council Courts) Order 1954 before this Court under revisional jurisdiction.
2. Heard Mr. S Sen, learned counsel appearing for the petitioner. Also heard, Mr. C H Mawlang learned counsel for the respondents.
3. The pleaded facts of the contesting parties are summarized hereinbelow in a nutshell-
The respondents herein as plaintiffs brought a suit being T.S. No. 2 of 1989 against the petitioner herein who has been arrayed as defendant in the suit before the learned Judge, District Council Court, Khasi Hills District Council, Shillong seeking the following reliefs: -
"a) For declaration of the right, title, interest and possession of the plaintiff No. 1 over the suit property as the Khadduh of the family;
b) For eviction of the defendant or any person or persons claiming for or on his behalf or through him, from the suit property;
c) For permanent injunction against the defendant or any one claiming for or on his behalf or through him;
d) For full costs of the suit;
e) For any other relief/reliefs which the plaintiffs are entitle to according to law and equity."
4. The averments made in the plaint is that the plaintiff No. 1 is the only daughter of late Ka Sorsimai Kurbah who was the youngest daughter of late Ka Shilak Kurbah. Plaintiff No.1 is, therefore, according to custom, the Khadduh (youngest) of the womb of the said late Ka Shilak Kurbah and hence is the legal and successor of all properties left behind by late Ka Shilak Kurbah and Ka Sorsimai Kurbah. The plaintiff No. 2 is the eldest daughter of the plaintiff No. 1 and the defendant is the eldest brother of the plaintiff No. 1 and uncle of the plaintiff No.
2. It has further been averred that late Ka Shilak Kurbah, grandmother of the plaintiff No. 1 was the owner and in possession of a land and house situated at Marbisu village, Marbisu Sirdarship which land and house is bounded as follows: -
North: New PWD Road East: PWD (Shillong - Mawphlang) South: Mainly compound of Ka Niastimai Kurbah West: Land of U Bernard Kurbah (previously land of Ka Kein Kurbah) On the death of Ka Shilak Kurbah, the said property was inherited by her youngest daughter Ka Sorsimai Kurbah, mother of the plaintiff No. 1, who owned and possessed the same till her death and consequently thereupon the property devolves on plaintiff No. 1 It has also been averred that the mother of the plaintiff No. 1 was doing business and used to stay at Shillong as well as in her said house at Marbisu, however, the defendant No. 1 after his marriage with late Ka Bity Rani, left his mother's house as per custom and stayed with his wife at Mawphland. Since he had no house of his own, the mother of the plaintiff No. 1 allowed him to bring his wife to her house and lived there with his children. This was done out of pity as well as to look after the suit property in absence of mother and the defendant lived there happily and the relation was cordial. But in the year 1973 the plaintiff No. 1 constructed a shop house in the suit land and rented out the same but in the year 1988 the plaintiff No. 2 opened a wine shop in a portion of the said house under the name and style " ROVIJAKYSU" and another portion is let out for a restaurant. The plaintiffs after construction of the shop house wanted to have separate electrical connection to their shop houses but on 06.11.88 when the electricians of Me.SEB came to make separate connection, the defendant threatened them and openly claimed that the plaintiffs have no right on the suit property which clouded the right, title and interest of the plaintiffs over the suit land, more so, when the defendant had constructed a wall on the backside of the main house even threatened to close down the wine shop and did not allow the tenants of the restaurant to use the latrine and draw water from the pond, the suit was filed praying for aforesaid relief.
5. On receipt of summons the defendant had entered appearance and contested the suit by filing written statement contending inter alia taking the usual pleas as provided under Order 8 of the Code of Civil Procedure relating to maintainability of the suit, misconceived, no cause of action for the suit, barred by limitation, estoppel, waiver and acquiescence, etc. The Pleadings set forth in the written statement is that the plaintiff No. 1 is the only daughter of late Sorsimai Kurbah who was the youngest daughter of late Ka Shilak Kurbah but the plaintiff No. 1 is not the legal heir of all the properties left behind by late Ka Shilak Kurbah and Ka Sorsimai Kurbah but admitted that the house in which the defendant resides was the landed property of late Ka Shilak Kurbah and late Sorsimai Kurbah, the boundaries of which has been given as follows:
North: PWD Road East: PWD Road,Shillong-Mawphlang South: Land of U. Bernard Kurbah West: Land of Ka Theresia Rani and the boundaries therefore claimed by the plaintiff in her plaint are not correct.
6. It has further been averred that after the death of Ka Shilak Kurbah and Ka Sorsimai Kurbah, the property is owned, possessed and managed by the defendant and not by the plaintiff No. 1 as averred. On the other hand, the defendant is living in the house of his mother since his birth and as per her wish and at no point of time he had left his mother's house and even all his children were born in his mother's house. The defendant further averred that the plaintiff No. 1 was married to one Shri Ferdinand according to Catholic Christian rites/ceremony on 12.02.66 in the St. Paul Chapel at Marbisu and has two issues out of the said wedlock and the plaintiff No. 2 is the daughter of Shri Ferdinand, but the plaintiff No. 1 had committed adultery with one Shri H. Iontis Kharpuli and out of the said adultery, children were born and the plaintiff No. 1 is still living with Shri H. Iontis Kharpuli and because of the said adultery the mother of the plaintiff No. 1 deprived her of all ancestral properties including the house in which the defendant is living and accordingly the defendant is living and managing the properties at Marbisu as per wish of his mother but since the plaintiff No. 1 was driven out by the said H. Iontis Kharpuli and she had no place to stay, the defendant No. 1 in the year 1973 constructed a shop for the plaintiff No. 1 so as to enable her to earn livelihood and out of pity and being his own sister the defendant allowed her to run a shop and the plaintiff No. 2 being his own niece allowed to open a wine shop and a restaurant in the said shop and therefore prayed for dismissal of the said suit since the plaintiff No. 1 was deprived of all right, title and interest by her mother due to adultery committed by the plaintiff No. 1.
7. On the pleadings of the parties the learned trial court framed as many as sixteen (16) issues which are quoted hereunder-
"1. Whether there is any cause of action for filing this suit?
2. Whether the suit is maintainable in its present form?
3. Whether this court has the jurisdiction to try the instant suit?
4. Whether the plaintiff No. 1 is the only daughter and heir of late Ka Sorsimai Kurbah and of late Ka Shilak Kurbah?
5. Whether the defendant resides in the suit property since the date of his birth on the permission of his mother and now the plaintiff?
6. Whether the property in suit is the ancestral property since the time of late Ka Shilak Kurbah?
7. Whether the plaintiff No. 1 Ka Bernadette Kurbah is the legal wife of Shri Ferdinand?
8. Whether the boundaries of the suit property is according to the plaint or according to the written statement?
9. Whether the plaintiff, Ka Bernadette Kurbah is living in adultery with Shri H. Iontis Kurbah and whether the children born out of the cohabitation with Shri H. Iontis Kurbah are legitimate children?
10. Whether the defendant has any right to inherit the suit property?
11. Whether due to adultery, misconduct and disobedience of the plaintiff No. 1 (late) Ka Sorsimai Kurbah deprived her of all the ancestral properties including the suit property?
12. Who has got the right and title over the suit property?
13. Whether after the death of (late) Ka Sorsimai Kurbah the suit property was inherited by the plaintiff No. 1 Ka Bernadette Kurbah?
14. Whether the defendant is liable to be evicted from the suit property?
15. Who constructed the shop house in the suit property?
16. To what relief/reliefs the parties are entitled to?"
8. During the trial both the contesting parties have examined 6 witnesses in support of their case respectively wherein 8(eight) documents were exhibited by the plaintiff's side vide Exts- Ext - A to Ext - H, whereas the defendant exhibited 6 (six) documents vide Exts - Ext - A to Ext - F. The plaintiff No. 1 was examined as PW-6, Shri U. Dhori Kurbah as PW-1, U. Domebellson Kurbah as plaintiff No. 2, Smti Ka Beno Kurbah as PW-3, Smti Ka Monica Sun as PW-4, Shri Ka Thien Karjana as PW-5 whereas the defendant examined himself as DW-6, Shri U Joesph Obendro Kurbah as DW-1, Shri Ka Kumtimai Sun as DW-2,Shri U Beding Kurbah as DW-3, Shri Ka Dramon Kurbah as DW-4 and Shri L.T. Marbaniang as DW-5.
9. Both the contesting parties have also filed their written argument before the learned trial court. The learned trial court after considering the pleadings set forth by the parties, as well as the oral and documentary evidence including the written arguments took up the issue No. 4 at the first instance which goes to the root of the suit i.e., as to whether the plaintiff No. 1 is the only daughter and heir of late Ka Sorsimai Kurbah and of late Ka Shilak Kurbah. The learned trial Court after referring to the depositions of PWs 1, 3, 4, 5 and 6 as well as considering paragraph 7 of the written statement wherein defendant admits that the plaintiff is the only daughter of late Sorsimai Kurbah who was the youngest daughter of late Ka Shilak Kurbah held that plaintiff No.1 is the only daughter of late Ka Sorsimai Kurbah, who was the daughter of late Ka Shilak Kurbah and hence as per the Khasi system, plaintiff No.1 being the only daughter of late Ka Sorsimai Kurbah, is the legal heir of Ka Sorsimai Kurbah and late Ka Shilak Kurbah, moreso, as per Section 58 of the Evidence Act, facts admitted need not be proved and answered the issue in positive.
10. Thereafter the learned trial court took up the issue No. 5 and after considering the evidence of PW 1, PW 2 and PW 3 and the evidence of DW 1, DW 2 and, DW 6 wherein the DW 1 and DW 2 have clearly stated that the defendant was allowed to live and stay in the suit property by his late mother which belongs to his mother and therefore taking into consideration the evidences adduced by the parties answered the issue No. 5 in positive by holding that the defendant resides in the suit property on the permission given to him by his late mother.
11. The learned trial court while deciding the issue No. 6 considered the evidence of PW 6, corroborated by PW 1, PW 2, PW 4 and PW 5 coupled with the evidence of DW 6 has held that the suit property is the ancestral property of late Ka Shilak Kurbah and late Ka Sorsimai Kurbah and answered the issue accordingly, moreso, the same do not require to be proved further as per Section 58 of the Evidence Act since the defendant has admitted that the house where the defendant resides belong to late Ka Shilak Kurbah and late Ka Sorsimai Kurbah.
12. In regard to issue No. 7, the learned trial court after considering the evidence of the PW 6 and DW 6 both in the examination in chief and cross examination was constrained to hold by referring to Section 58 of the Evidence Act that the plaintiff No. 1 is the legally married wife of Shri Ferdinand.
13. While dealing with issue No. 8 relating to the boundaries of the suit property, the learned trial Court took up the boundaries shown in the plaint and the written statement and the evidence on record and has held that since the defendant disputes the correctness of the boundaries, the burden of proof lies on the defendant to which the defendant failed to explain or prove in which way the boundaries given/claimed by the plaintiffs in the plaint is not correct while he was examined as DW 6 and hence the issue was answered in affirmative.
14. While dealing with the issue No. 9 the learned trial court took up the question of adultery as first part wherein on careful consideration of the evidence of the plaintiff No. 1 and the defendant, the learned Court has held that the defendant has miserably failed to prove the alleged adultery committed by the plaintiff No. 1, rather the defendant led the adulterous life and answered the question in the negative. On the second part of issue No. 9, the learned trial court has held that in the Khasi society which follow matrilineal system of inheritance, the question of illegitimacy does not arise and hence answered in the affirmative.
15. The issue No. 10 is the vital issue of the suit whereby the learned trial court decided the issue in negative holding that under Khasi customs no male member in the family has right to inherit the ancestral property.
It is the youngest (Khadduh) daughter in the family, who is entitled to inherit the ancestral property under Khasi custom. Moreover, the learned trial court took into consideration the pleadings made in paragraph 11 of the plaint and paragraph 19 of the written statement along with the evidence on record wherein the defendant admitted that he never claimed title over the suit property but only as a Manager of the family of his mother vide Exts. E and F and the plaintiff No. 1 cannot inherit the suit property as she was deprived by her mother during her life time because of leading an adulterous life. The learned trial court while deciding the issue No. 6 had already held that the suit property is an ancestral property and the plaintiff No. 1 being the youngest daughter of late Ka Sorsimai Kurbah and granddaughter of late Ka Shilak Kurbah is entitled to inherit the suit property and decided the issue in the negative.
16. The adulterous life led by the plaintiff No. 1 thereby deprived of her from the ancestral property relates to issue No. 11 whereby and whereunder the learned trial Court has held that since the allegations were brought by the defendant, the burden of proof lies heavily on the defendant to which the defendant has miserably failed to proof. The learned trial Court further held that though the defendant relied on Exts. E and F to proof his allegation but the same are not in any manner related to his claim that the plaintiff No. 1 has been deprived by her late mother of all the ancestral properties. The learned trial Court after considering the evidence on record as well as Exts. E and F answered the issue in negative.
17. Another issue on the pleadings of the parties framed i.e., issue No. 12 is a vital issue of the suit which speaks of "who has got the right and title over the suit property". The learned trial Court while deciding the issue had exhaustively dealt with the evidence on record wherein PW 6 in examination in chief has stated that after the death of late Ka Shilak Kurbah the suit property devolves on her mother and on her death it devolves on her being the only daughter of late Ka Sorsimai Kurbah and therefore the defendant has no right whatsoever, over the suit land and house being the ancestral property founded by her late grandmother Ka Shilak Kurbah. The above statements have been corroborated by other witnesses. PW 1 U. Dhori Kurbah who is the uncle of the plaintiff No. 1 and the defendant and the grand uncle of plaintiff No. 2, has in his examination-in-chief has stated that "there is no taboo committed by the plaintiff No. 1 and she is not out-casted (tait kur) from our family...........The defendant has no right at all to get the suit property so long there is a female member of the family", whereas, in cross examination he denied the suggestion that the plaintiff No. 1 has no right over the suit property as she did not stay with her mother. PW 2 U Dombellson Kurbah in his examination-in- chief has deposed that the plaintiff No. 1 have landed properties at Marbisu. The land at Marbisu is inherited by the plaintiff No. 1 from her mother late Ka Sorsimai Kurbah and the defendant being a male member cannot inherit or get the suit property. In cross examination he denied the suggestion that Ka Sorsimai Kurbah deprived the plaintiff of all her ancestral properties. PW 3 Ka Beno Kurbah in her examination-in-chief has deposed that to her knowledge, the land belongs to the plaintiff No. 1. She has further stated that she knew the mother of the plaintiff late Sorsimai Kurbah and the plaintiff No. 1 is the only daughter of late Ka Sorsimai Kurbah, PW 4 Ka Monica Sun in her deposition in examination in chief has stated that she knows the suit land belongs to late Ka Sorsimai Kurbah and late Ka Sorsimai Kurbah is the mother of the plaintiff No. 1 who got the land from her late mother Ka Shilak Kurbah and on the death of late Ka Sorsimai Kurbah, the suit properties devolves on the plaintiff as she is the only daughter of late Ka Sorsimai Kurbah. She has further deposed that she used to see the suit land which is near to her house and the plaintiff has the right to inherit the suit properties as per custom and the defendant has no right to the suit properties. PW 5 Ka Thiem Kharzana in her examination-in- chief has deposed that the suit land is inherited by late Sorsimai Kurbah from late Ka Shilak Kurbah and thereafter inherited by the plaintiff. The statement of all PWs remained un-rebutted in their cross examination and nothing came out otherwise to dislodge the statements made by all the PWs.
Whereas the evidence of DWs were also considered by the learned trial court while adjudicating the rival claims. The defendant No. 6 is the defendant himself. In his examination-in- chief he has deposed that his mother had authorised him vide Exts. E and F dated 15.04.72 as the plaintiff No.1 had displeased her mother by living in adultery with Shri Iontis and in later part of his examination-in-chief he deposed that the plaintiff No. 1 has no right over the suit property as his mother has "disinherited her as she displeased her", whereas, in cross examination the defendant as DW 6 has admitted that the plaintiff No. 1 is the only daughter and also the youngest daughter in the family but has further deposed that the suit house within the suit land is the property of his grand mother and his late mother and it is also admitted that the house and the suit land are the ancestral properties of his late grandmother late Shilak Kurbah and his late mother late Sorsimai Kurbah. U. Joesph Obendro Kurbah, who is examined as DW 1, in his cross examination admitted that plaintiff's mother did not give the house to him but simply allowed him to stay in the suit house and according to custom, the suit house devolves on the plaintiff and in later part of cross examination the defendant No. 1 has admitted that he cannot say whether there is anything to show that the plaintiff was deprived of the right of inheritance by her mother or by the Kur as a whole. DW 1 has further admitted that mother of the plaintiff did not deprive the plaintiff from the right of inheritance. DW 2 Ka Kumtimai Sun, in her cross examination had admitted that the defendant though was allowed to look after the house but the right of ownership of the property at Marbisu was not given to him by his late mother. DW 2 has also stated that the defendant and his children have no right over the suit properties. DW 2 has further stated that late Ka Sorsimai died in presence of the plaintiff who borne all the expenses and funeral rites and according to Khasi custom it is the female members who can inherit and not the male. Shri U. Beding Kurbah who was examined as DW 3 in the suit, has, in cross examination deposed that late Ka Sorsimai did not keep any document showing that she has transferred the land to the defendant at the time when the witness met late Ka Sorsimai Kurbah and has further admitted in cross-examination that the land mentioned in Ext- D are outside the suit land. Therefore the learned trial court after careful consideration of the pleadings of the parties including the evidence on record alongwith the documents exhibited and after hearing the parties and upon perusal of the written arguments filed by the parties came to a clear finding wherein the defendant had admitted that the plaintiff No. 1 is the only daughter of late Ka Sorsimai Kurbah and under Khasi customary law only the youngest daughter is entitled to properties left by her late mother and there is no scope of any male member under Khasi custom to inherit the ancestral properties of his mother thereby has held that the defendant has miserably failed to prove that the plaintiff No. 1 has been disqualified from inheriting the ancestral properties (suit properties) as there is nothing on record to show that the plaintiff No. 1 has either been outcasted or ostracised from the clan or family thereby disentitling her to inherit the ancestral properties and accordingly answered the issue No. 12 by holding that under Khasi custom only the female members of the family can inherit the ancestral properties and in view of decision in issue Nos. 4, 6, 10 and 11, the plaintiff has got the right and title over the suit properties.
18. The learned trial Court took up the issue No. 13 relating to the question as to whether after the death of Ka Sorsimai Kurbah the suit property was inherited by the plaintiff No.1 Ka Bernadette Kurbah and the learned trial Court in view of the observation and findings in issues Nos. 4, 6, 10, 11 and 12 answered the issue in the affirmative.
19. Relating to issue No. 14, i.e., whether the defendant is liable to be evicted from the suit property, the learned trial Court considering the issue Nos.4, 6, 10, 11, 12 and 13 has decided the issue in the affirmative, holding that the defendant is liable to be evicted from the suit property.
20. The issue No. 15 relates to the question for determination as to who constructed the shop house in the suit property. The learned trial court after going through the averments made in paragraphs 8 of the plaint wherein the plaintiff has averred that in the year 1973 she constructed a shop house in the suit land by the side of the main house and road and rented out the same, but in October 1988, the plaintiff No. 2 opened her wine shop under the name and style "ROVIJAKYSU " in a portion of the suit house and another portion is let out for a restaurant whereas in paragraph 16 of the written statement the defendant denied the same contending inter alia that in the year 1973 the defendant constructed a shop for the plaintiff No. 1 so as to enable her to bear a livelihood as she was driven out by Shri H. Iontis Kharphuli and she has no place to stay as the mother Ka Sorsimai Kurbah did not allow her to stay in any of the ancestral property of the family. But the evidence on record would reveal that DW 6 in his deposition has deposed that the land in which he constructed a shop for the plaintiff No. 1 is not within the land of his mother and there is a stone wall and nulla separating them whereas in cross examination the defendant as DW 6 has stated that there is a shop house near the suit land by the side of the main house which the plaintiff run and managed till date, which was given and constructed by him out of pity to his sister and on careful consideration of the evidence on record, the learned trial court has found that there are no documents whereby it can be proved that the defendant had purchased any landed property on or before the year 1973 thereby held that the shop house was very much within the ancestral landed properties and according to Khasi custom the defendant cannot construct a house within the ancestral properties without the knowledge and consent of his mother or the plaintiff who is the legal heir of the properties wherefor it can be concluded that the plaintiff No. 1 constructed the shop house within the suit property through the defendant and accordingly answered the issue in the affirmative and in favour of the plaintiff.
21. With regard to the issues relating to cause of action for filing of the suit, maintainability and the question of jurisdiction to try the suit and the relief/reliefs the parties are entitled, the learned trial court has held that since the right, title and interest of the plaintiff No. 1 over the suit properties are denied by the defendant in the pleadings, there is a cause of action for the suit and the other two issues having been raised by the defendant who has failed to lead any evidence in regard to the issues thereby answered in the affirmative and relating to the reliefs as sought for in the plaint, the learned trial court in view of the findings of the issues as indicated above decreed the suit in favour of the plaintiffs holding the right, title, interest and possession of the plaintiff No. 1 as the Khadduh of the family over the suit property thereby decreed the eviction of the defendant, any person or persons claiming for or on his behalf from the suit property with further direction that the defendant should hand over Khas possession of the suit property to the plaintiffs within a period of 2(two) months from the date of the judgment thereby granted permanent injunction restraining the defendant or any person claming for or on his behalf from interfering with the ownership rights of the plaintiffs over the suit property and the rests of the claim of the plaintiffs are denied.
22. Being aggrieved with the judgment and decree dated 16.07.04, passed by the learned Presiding Officer, Subordinate District Council Court, Shillong, the appellant/defendant took up the matter in appeal before the learned Judge, District Council Court, East Khasi Hills, Shillong being Title Civil Appeal No. 2 of 2004. In appeal both the contesting parties filed their written arguments in support of their respective case. In the written argument, the appellant at the first instance raised the issue No. 5 contending that he resides in the suit property since the date of his birth on the permission of his mother and all the PW's and DW's confirmed that the defendant resides in the suit property and the same was under his management and control and the finding of the issue No. 5 by the learned trial court also confirmed that the defendant resides in the suit property from the date of his birth till date but decreed the suit for eviction without appreciating the evidence adduced by the parties, the impugned judgment and decree thus require interference in the facts and circumstances of the case.
23. The appellant has also raised the issue No. 8 and submitted that the same has been wrongly appreciated without weighing the documentary evidence which require interference by the appellate Court, more so, when the plaintiff failed to prove the southern part of the suit land wherein there is a nullah which separate partly the suit land and the defendant/appellant correctly described the southern part of the suit land as that of the land of U. Bernard Kurbah. The appellant raised all the issues before the appellate Court which according to the appellant has been wrongly appreciated by the trial Court hence required interference under the appellate jurisdiction, whereas the written argument advanced by the respondents support the judgment and decree passed by the learned trial Court and submits that the same do not require to be interfered with since the trial cot has rightly came to the conclusion on perusal of the materials on record.
24. The learned appellate Court took up all the issues along with the argument advanced including the pleadings of the parties and the evidence on record. After going through all the issues framed on the pleadings of the parties, the learned appellate Court further framed the following questions: -
"1. Whether the respondent No. 1 is the only daughter and heir of (late) Ka Sorsimai Kurbah and of (late) Ka Shilak Kurbah?
2. Whether the appellant has been residing in the suit land since his birth on the permission of his deceased mother?
3. Whether the suit land is the ancestral property from the ancestress (late) Ka Shilak Kurbah?
4. What are the correct boundaries of the suit land?
5. Whether the respondent No. 1 is living in adultery with Shri H. Iontis Kharpuli and whether the children born out of the cohabitation with him are legitimate children?
6. Whether due to the alleged adultery and misconduct of the respondent No. 1, (late) Ka Sorsimai Kurbah deprived her of all the ancestral properties including the suit land?
7. Whether after the death of (late) Ka Sorsimai Kurbah, the suit land was inherited by the respondent No. 1?
8. Who has got the rights and title over the suit land?
9. Whether the appellant is liable to be eviceted from the suit land?"
25. The learned appellate court took up the questions 1, 5 and 6 together and dealt with the matter extensively wherein the defendant admits that the respondent No. 1 is the only daughter of late Ka Sorsimai Kurbah but Ka Shilak Kurbah had three daughters and four sons. However the pleadings of the parties, they agree that the respondent No. 1 is the only daughter of late Ka Sorsimai Kurbah who was the youngest daughter of late Ka Shilak Kurbah. Being the youngest daughter, according to custom she is the Khadduh (youngest) of the womb of the said late Ka Shilak Kurbah and is the legal heir and successor to all the properties left by late Ka Shilak Kurbah and late Ka Sorsimai Kurbah, whereas, the appellant has contended that the respondent No. 1 is not the legal heir of all the properties left by late Ka Shilak Kurbah and late Ka Sorsimai Kurbah because the respondent No. 1 committed adultery with one Sri H. Iontis Kharpuli and for her misconduct, the mother of respondent No. 1 (late) Ka Sorsimai Kurbai deprived her of all the ancestral properties including the house in which the appellant is living. The respondent No. 1, in her testimony (as PW 6) testified that the appellant is her elder brother and she is the only daughter in the family. Her testimony is corroborated by other PWs and the same is not shaken on the cross examination. The only contention raised by the appellant as observed by the learned appellate court is that the respondent No. 1 led an adulterous life with Shri H. Iontis Kharpuli who is her second wife and her marriage with him is not registered according to Roman Catholic Church and therefore she cannot marry when her former husband is still alive, whereas the appellant in his cross examination (as DW 6) has deposed that because of adultery of the respondent No. 1, her mother deprived her from all her properties and the wish of the mother has been expressed in Ext. E and Ext. F wherefor the respondent No. 1 has no right over the land and house where she is residing now. Since the respondent No. 1 displeased her mother by leading an adulterous life, the mother expressed her desire by authorizing him vide Exts E and F dated 15.06.1972 which deprived the respondent No. 1 from all the ancestral properties and the suit land including the house, whereas the respondent No. 1 testifies during the trial that she had separated from her first husband, U. Ferdinand in the year 1967 and thereafter she lived and stayed alone for about 3 years before she got married to another person. It is noteworthy that the petitioner/appellant as DW 6 testifies that it is a fact that Ferdinand committed adultery with another woman after marriage with the plaintiff/respondent No. 1 and the appellant corroborates the respondent No. 1 while deposing that he himself married to another woman before he married late Bity Rani and his first wife is Ka Sikel Pde who is still surviving and got one issue from her. Therefore, it leads to the conclusion that U Ferdinand i.e. the first husband of the respondent No. 1 and the appellant are guilty of committing adultery. Since the question of adultery has been raised by the appellant, onus lies on him to prove the said adultery to which he has miserably failed. As regards Exts. E and F, the appellate Court's finding is that the above two exhibits are silent about the alleged deprivation of the ancestral properties whereof the said two documents vide Exts. E and F are conditional, wherein the appellant had been authorized by his deceased mother to look after and manage the properties on her behalf with a condition that he cannot sell, transfer and/or alienate the properties and accordingly the learned appellate court answered the questions No. 1, 5 and 6 in favour of the respondent, holding that the respondent No. 1 is the only daughter of late Ka Sorsimai Kurbah daughter of late Ka Shilak Kurbah and the respondent No. 1 is not living in adultery as alleged and all her children are legitimate and the question of deprivation of her from ancestral property does not arise.
26. As regards the question No. 3, the learned appellate court on admission of the contesting parties has held that the suit land is an ancestral property of late Ka Shilak Kurbah and answered accordingly.
27. The question No. 4 relates to the boundaries of the suit land as described in the plaint which however is disputed by the appellant in paragraph 8 of the written statement though he had made a categorical statement that statement made in paragraph 2 of the plaint is partially correct to the extent that the house in which the appellant resides was the landed property of late Ka Shilak Kurbah and late Ka Sorsimai Kurbah, the boundaries of which he described as follows:-
North- New PWD Road East- PWD Road (Shillong- Mawphlang) South- Land of U Bernard Kurbah West- Land of Ka Theresia Rani And therefore boundaries as given/claimed by the plaintiffs are not correct. Whereas in the plaint, the plaintiffs described the suit land and house as follows -
North- New PWD Road East- PWD Road (Shillong- Mawphlang) South- Mainly compound of Ka Niastimai Kurbah West- Land of U Bernard Kurbah (Previously land of Ka Kein Kurbah) The learned appellate court while answering the question has held that since the appellant disputed the boundaries of the plaint as described, onus lies on him to prove which side of the boundaries described by the respondents are incorrect, to which the appellant has miserably failed and accordingly the learned appellate Court decided the question No. 4 in favour of the respondents holding that the boundaries described in the plaint are correct.
28. Thereafter the learned appellate Court took up the question No. 2 though the said question was not argued by the learned counsel representing the appellant. However the learned appellate court after going though the pleadings made in paragraph 5 of the plaint and paragraph 11 of the written statement and upon perusal of the evidence on record had observed that the appellant was allowed to stay in the suit property by his mother, out of pity, since the appellant had no house of his own and it is a fact that the appellant was allowed to stay and look after the suit house by his late mother during her lifetime which facts have been corroborated by PW 2 and PW 3, whereas the appellant has testified that he resides in the house of his mother at Marbisu since birth and the said testimony is corroborated by DW 1 and DW 2 and from the preponderance of the evidence, the learned appellate court answered the question No. 2 in the affirmative.
29. In view of the decision and discussion in questions Nos. 1, 3, 5 and 6, the learned appellate Court answered the questions Nos. 7, 8, and 9 in the affirmative thereby upholding the judgment and decree passed by the learned trial court and hence this revision petition under Order 6 of the Assam High Court (Jurisdiction Over District Council Courts) Order, 1954.
30. It is to be noted herein that during the pendency of the instant revision petition, the sole petitioner died and accordingly on the prayer made for substitution, petitioners daughter Smt. Joan Krissilda Rani has been substituted in his place vide order dated 18.11.2009 passed by this Court in Misc. Case No.462(SH) 2009.
31. The instant revision petition has been filed mainly on the following grounds, viz.: -
a) The judgments and decrees passed by both the Courts below require interference because the Courts below have passed the decree over personal property of the petitioner which he had purchased from Ka Kwissiben Kurbah in the year 1979 and the boundary of the land is divided by a Nallah where the courts below exercised a jurisdiction not vested in it by law.
b) Both the Courts below have failed to exercise a jurisdiction so vested in decreeing the suit without adjudicating the issues framed during the trial thereby the courts below decreed the extra land beyond the relief sought for as the suit was for mother's property as Khadduh which require interference under revisional jurisdiction.
c) The courts below have acted in the exercise of its jurisdiction illegally whereby failed to appreciate customary right of the petitioner being a male member who cannot be directed to leave and vacate the house of his own mother and can live in the ancestral house of his mother till his death which have not been appreciated by both the courts below resulting in prejudice to the petitioner which require interference under revisional jurisdiction of the court.
32. Mr. Sen, learned counsel appearing for the petitioner has vehemently argued that the issues framed during the trial were not taken into consideration while decreeing the suit, inasmuch as, the evidence on record would speak otherwise, because the personal property which was purchased in the year 1979 wherein the boundary of the land is divided by a nullah and the customary law prevailed amongst the Khasis that the son can live in the ancestral properties of his mother till his death cannot be decreed directing to leave the house and the suit land, thereby evicting therefrom requires interference under Order 6 of the Assam High Court (Jurisdiction Over District Council Courts) Order, 1954.
33. On the other hand, countering the attack of the counsel for the petitioner, Mr. Mawlong, learned counsel appearing for the respondents would contend that all the issues framed during the trial and the questions framed by the appellate court are based on evidence on record, more so, when under Khasi customary law, a son cannot remain in the house of his mother after his marriage and cannot have any right over the ancestral properties of his mother which belongs to the youngest daughter of the family. According to Khasi customary law, ancestral property goes to or is inherited by the daughters, generation after generation. The youngest daughter of the family, or womb or clan occupies the ancestral house called iing seng or iungblai or iing khadduh and hence the judgments and decrees rendered by the courts below do not require to be interfered with under revisional jurisdiction in the facts and circumstances of the case.
34. Considered the submissions of the learned counsel appearing for the contesting parties. Perused the pleadings of the parties alongwith the evidence on record. Before dealing with the arguments advanced by the contesting parties, it is noteworthy to mention that the scope of an application under Order 6 of the Assam High Court (Jurisdiction Over District Council Courts) Order, 1954 is a limited one. Order 6 provides that:
"The High Court may, on application or otherwise, call for the proceedings of any civil or criminal case decided by or pending in any court in the autonomous district constituted under the provisions of sub-paragraphs (1) and (2) of paragraph 4 of the Sixth Schedule to the Constitution (hereinafter called the court of the District Council) and pass such orders as it may deem fit."
In the case of Ka Phier Mai Lyngdoh Vs. Ka Thermai Lyngdoh reported in 1960 ILR 477 (Assam), a Division Bench of this Court has held as thus:
"In our judgment, this provision must always be called in aid of justice. If upon going into the records of the case, this Court is of the view that justice has not been done, this Court will be entitled to go into the matter and decide the case in a manner so that justice might be done. That, however, does not mean that this Court acting under r.6 of the Order can sit as a Court of first appeal or even a Court of second appeal."
"..........the provisions of Rule 6, however, do not give any rights to the litigant. It is a privilege of this Court when on perusing the records comes to the conclusion that justice has not been done to do justice between the parties."
Therefore this Court seems it fit to consider the points raised by the counsel for the petitioner as to whether both the Courts below have committed illegality or material irregularity in decreeing the suit on the basis of the material available on records.
35. It is an admitted fact that the plaintiff No. 1 is the only daughter of late Ka Sorsimai Kurbah who was the youngest daughter of late Ka Shilak Kurbah and therefore according to custom, the Khadduh (youngest) of the womb of the said late Ka Shilak Kurbah is the legal heir and successor of all the properties left by late Ka Shilak Kurbah and late Ka Sorsimai Kurbah. Under the Khasi customary law, a male member cannot inherit the properties of his grandmother and mother. A male member had to leave his ancestral house after his marriage. In the instant case, the petitioner was brought by his mother to her house to look after her property at Marbisu and after the death of her mother, the respondent No.1 allowed the petitioner to continue his stay in the suit house/land being her own brother and, more so, since his wife had died and he has to look after his children.
36. Now the question requires determination is as to whether the petitioner being a male member, has any right, title and interest over the ancestral properties left by his mother. The answer under Khasi customary law is that no male member can inherit the ancestral properties left behind by his mother when there is a youngest daughter surviving in the family, who would automatically be the heir and successor of ancestral properties left behind by her mother. Therefore, in the perspective of Khasi customary law, the law as is required to be adjudicated upon as to whether both the Courts below have committed illegality in decreeing the suit.
37. The learned trial court framed as many as 16 issues. The leaned trial court considered the evidence on record and on admission of the petitioner the issue Nos. 4, 5, 6, and 7 were answered in the positive. The vital issue No. 8 relating to the boundaries of the suit land as raised in the revision petition, the trial court after examining the evidence on record found that the appellant when examined as DW 6 has failed to explain or prove in which way the boundaries claimed by the plaintiffs in their plaint is not correct and since he himself failed to prove the factum of boundaries answered the issue No. 8 holding that the boundaries of the suit property is according to the plaint and answered accordingly.
38. The issue No. 10 relates to right to inherit the suit property. The learned trial court while deciding the issue has dealt with the evidences on record, more particularly, Ext E and F whereby the appellant was authorised to look after and manage the suit property debarring him to sell and/or alienate the suit property wherein the appellant himself admitted that he never claimed the suit property and, therefore, the issue was answered in the negative.
39. With regard to issue Nos. 9 and 11, the learned trial Court divided the issue No. 9 into two parts. The first part answered in the negative and the second part in the affirmative including the issue No. 11 answered in the negative. The other issue Nos. 12 to 16, after threadbare discussion answered the issues in affirmative and the issues relating to 1 to 3, the learned trial court has held that the suit is maintainable, there is a cause of action and has the jurisdiction to try the suit and accordingly decreed the suit.
40. On appeal, the learned appellate court apart from the issues framed during the trial, has framed nine (9) questions and answered the questions No. 1, 5 and 6 in favour of the respondents. The question No. 3 is answered in the affirmative. The question No. 4 which is related to boundaries of the suit land, the appellate court answered in favour of the respondents. The question Nos. 2, 7, 8 and 9 answered in affirmative thereby affirmed the judgment and decree of the learned trial court.
41. This Court in Ka Phier Mai Lyngdoh (supra), as quoted hereinabove, has held that the provisions of Order 6 of the Assam High Court (Jurisdiction Over District Council Courts) Order, 1954 do not give any rights to the litigant, it is a privilege of this Court only when upon perusing the records, comes to the conclusion that justice has not been done, to do justice between the parties. As the questions raised in the revision petition have been elaborately dealt with by both the Courts below and upon perusal of the records, this Court is of the opinion that there is no illegality or material irregularity and the orders passed by the Courts below do not suffer from any infirmity, this Court is not inclined to interfere with the judgments and decrees passed by both the Courts below.
42. In the result, the revision petition being found to be devoid of any merit, same is accordingly dismissed. Stay order passed earlier stands vacated.
43. Send down the lower Court records.
JUDGE Shivani