Jharkhand High Court
Mangal Das Oraon & Anr vs Ladha Oraon & Ors on 22 April, 2016
Equivalent citations: 2016 (3) AJR 798, (2016) 3 JLJR 691, (2016) 168 ALLINDCAS 450 (JHA), (2016) 3 JCR 637 (JHA)
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Second Appeal No. 8 of 1995
1. Mangal Das Oraon, son of Maudwa Oraon
2(a) Shanti Devi
2(b) Kamla Devi
2(c) Mahamani Devi
2(d) Basanti Devi
2(e) Surji Devi
2(f) Dando Devi
All by caste Oraon, residents of village Bhaismunda, P.O. &
P.S. Bhandra, District Lohardaga ... ... Appellants
Versus
1. Ladhu Oraon
2. Birsa Oraon
Both sons of Basu Oraon, by caste Oraon, residents of village
Bhaismunda, P.O. & P.S. Bhandra, District Lohardaga
3. Deputy Commissioner, Lohardaga, P.O., P.S. & District
Lohardaga ... ... ... Respondents
CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
For the Appellants : Mr. L.K. Lall, Advocate
Mr. Jitesh Kumar, Advocate
For the Respondents : None
Order No. 12 Dated: 22.04.2016
Counsel for the respondents is absent.
2. By the orders of the Hon'ble the Chief Justice, the
matters in which proceedings in the lower courts were stayed by
the orders of this Court, have been notified in the cause list for
22/23.04.2016. The instant Second Appeal was filed on 28.03.1995 and thereafter, it was listed on as many as 11 occasions. When it was pointed out to the Bench that the counsel representing the respondents is no more, the Registry was directed to send notices to the respondents. The office report indicates that notice has been served upon the respondent nos. 1 and 2. The instant appeal was admitted on 16.08.1995 and an order staying further proceedings in Execution Case No. 5 of 1995 was granted vide order dated 22.07.1996. Considering the 2 aforesaid facts, I am not inclined to adjourn the matter any further.
3. Briefly stated, Title Suit No. 33 of 1985 was instituted by Lodhu Oraon and Belsu Oraon for declaration of their right, title and interest in the suit schedule properties and for a declaration that deed of adoption dated 25.07.1966 executed in favour of Mangal Das Oraon, defendant no. 1 is not legal and valid and the defendant no. 1 has not acquired any valid right, title and interest over the suit land by virtue of the said adoptiondeed. On the basis of the pleadings of the parties, the following issues were formulated:
1. Is the suit of the plaintiffs maintainable?
2. Have the plaintiffs valid cause of action for their suit?
3. Is the suit barred by limitation, estoppel and also barred under Specific Relief Act?
4. Whether plaintiffs' father Basu Oraon was adopted as son by Maru Oraon recorded tenant on 10.02.1942?
5. Is Mangal Das Oraon defendant no. 5 adopted son of Maru Oraon?
6. Are the plaintiffs entitled for declaration of title and recovery of possession?
7. To what relief or reliefs are the plaintiffs entitled to?
4. The trial court held that the suit was barred by limitation and the deed of adoption dated 25.07.1966 was executed by Maru Oraon in favour of Mangal Das Oraon. It was further held that the plaintiffs' father namely, Basu Oraon was not adopted by Maru Oraon as claimed on 10.02.1942. However, the First Appellate Court reversed the findings of the trial court on the issues of limitation and adoption of Mangal Das Oraon by Maru Oraon and allowed Title Appeal No. 87/24/199091 by reversing the lower court's order. Aggrieved, the defendants have filed the instant Second Appeal.
35. While admitting the Second Appeal the following substantial questions of law were formulated :
(A) whether there is a violation of mandate of law in relying on a sada document on adoption in favour of the plaintiffsrespondents and whether the limitation point decided in favour of the plaintiffs is against all norms?
(B) whether the decision arrived at under Section 71A of the Chotanagpur Tenancy Act decided in the year 1978 was binding to the parties?
6. Heard the learned counsel for the appellants and perused the documents on record.
7. Mr. L.K. Lall, the learned counsel for the appellants submits that in the proceeding of SAR Case No. 102 of 1977, the father of the defendant no. 1 produced the deed of adoption dated 25.07.1966 and the said case was dismissed on 23.03.1978 however, the suit seeking a declaration that the adoptiondeed dated 25.07.1966 is not legal and valid was filed in the year, 1985 and thus, the suit was barred by limitation.
8. From the pleadings of the parties, it emerges that Maru Oroan was the recorded raiyat in respect of land comprised under Khata No. 240 in VillageSasmunda, P.S.Bandra, DistrictRanchi. The father of the plaintiffs was one of the sons of sister of Maru Oraon's father. Since Maru Oraon had no son, he adopted the father of the plaintiffs on 10.02.1942 in presence of Panches and a memorandum was prepared on the same day by scribe J.M. Minz. Babu Bachan Singh, Jingra Oraon, Aliar Chokidar and others were the witnesses of the said memorandum dated 10.02.1942. The father of the plaintiffs namely, Basu Oraon started living with Maru Oraon after relinquishing his right in his father's property and he constructed two houses on Gharbari land, one at Plot No. 1302 and another over Plot No. 1303. After the death of the said Maru Oraon, the father of the plaintiffs inherited his 4 properties including the two houses and after the death of his father, the plaintiffs started cultivating the suit land and residing in the house constructed by their father. The plaintiffs further pleaded that the defendant no. 2 who is an influential person dispossessed them from the suit land and, when the matter could not be settled amicably they filed application under Section 71A of the Chhotanagpur Tenancy Act, 1908 which was registered as SAR Case No. 102 of 197778. In the said case the defendant no. 2 produced a copy of adoptiondeed dated 25.07.1966 and finally it was dismissed on 23.03.1978. The plaintiffs further asserted that Maru Oraon was an illiterate person from whom the defendant no. 2 deceitfully got the adoptiondeed dated 25.07.1966 executed.
9. The defendants contested the suit by pleading that Maru Oraon adopted Mangal Das Oraon in his old age according to the Oraon customs. The father of the plaintiffs was elder to Maru Oraon and therefore, he could not have been adopted by Maru Oraon. The defendants pleaded that the document on a sada paper showing adoption of Basu Oraon by Maru Oraon was fabricated and it was never acted upon. After the death of Maru Oraon his last rites were performed by the defendant no. 1 who became the lawful owner of his properties and his name was mutated in the Serista of the State of Bihar.
10. Referring to Article 57 of the Limitation Act, 1963 (wrongly mentioned as Article 59 in the judgment of First Appellate Court) which provides limitation period of 3 years for a declaration that an alleged adoption is invalid, or never took place, the trial court held the suit barred by limitation. The First Appellate Court however, held that Article 65 of the Limitation Act is applicable in the present case. It needs to be pointed out at this stage that the defendants never claimed right, title and interest over the suit land by adverse possession nor an issue on the 5 question of adverse possession was framed during the trial. The claim of the defendants is based on adoptiondeed dated 25.07.1966. It is not in dispute that vide order dated 23.03.1978, SAR Case No. 102 of 197778 was dismissed and thus, the plaintiffs had knowledge of the adoptiondeed dated 25.07.1966. The First Appellate Court has erroneously relied upon the Schedule Area Regulation of 1969 whereby, Article 65 of the Limitation Act was amended and the period of limitation was extended to 30 years. Application under Section 71A of the CNT Act is filed for restoration of possession of land to the person belonging to Schedule Tribe. The suit was filed by the plaintiffs primarily for their declaration of right, title and interest over the suit properties and for a declaration that adoptiondeed dated 25.07.1966 was not valid and legal. In fact, the suit was not maintainable in view of Section 258 of the CNT Act which bars institution of a suit in the Civil Court in certain cases. Section 258 reads as under:
258. "Bar to suits in certain cases.- Save as expressly provided in this Act, no suit shall be entertained in any Court to vary, modify or set aside, either directly or indirectly, and decision, order or decree of any Deputy Commissioner or Revenue Officer in any suit, application or proceeding under Section 20, Section 32, Section 35, Section 42, Section 46, subsection (4), Section 49, Section 50, Section 54, Section 61, Section 63, Section 65, Section 73, Section 74(A), Section 75, Section 85, Section 86, Section 87, Section 89, or Section 91 (Proviso), or under Chapter XIII, XIV, XV, XVI, or XVIII, except on the ground of fraud or want of jurisdiction and every such decision, order or decree shall have the force and effect of a decree of a Civil Court in a suit between the parties and, subject to the provisions of this Act relating to appeal, shall be final."
11. Though, the plea of Section 258 was not raised before the courts below, on the question of limitation the First Appellate Court has definitely gone wrong. No doubt, a prayer seeking 6 recovery of possession to the plaintiffs after evicting the defendants from the suit land was also made, the said prayer could have been granted only after adjudicating the validity of the adoptiondeed dated 25.07.1966 and, as noticed above, the period of limitation for filing a suit under Section 57 of the Limitation Act is 3 years only. The trial court thus, has rightly held the suit barred by limitation.
12. The learned counsel for the appellants next contended that while reversing the findings of the trial court on the issue of adoption of Mangal Das Oraon by Maru Oraon, the First Appellate Court erroneously ignored the registered adoptiondeed dated 25.07.1966 by merely observing that there is no evidence on record that Maru Oraon had executed the adoptiondeed voluntarily with full knowledge of the contents thereof.
13. The judgment of the First Appellate Court proceeded on a premise that the memorandum of adoption dated 10.02.1942 being more than 30 years old must be held genuine. The First Appellate Court further observed that Basu Oraon was illiterate and a simple tribal who might not have known the necessity of mutation whereas, the defendant no. 2 was an intelligent cunning person who had greedy eyes on the land of Maru Oraon. Maru Oraon died at the age of 80 years and thus, he could have been misled by defendant no. 2.
14. A reading of the First Appellate Court judgment unerringly discloses that the First Appellate Court went tangent and presumed certain facts which were not proved by the plaintiffs. A registered deed of adoption carries sanctity. Under Section 16 of the Hindu Adoption and Maintenance Act, 1956, there is a presumption that a registered adoptiondeed is valid. In "Laxmibai Vs. Bhagwantbuva" (2013) 4 SCC 97, the Hon'ble Supreme Court has observed as under;7
49. ".............The correctness or authenticity of the adoption deed is not disputed. What is disputed is that the natural parents of the adoptive child who were definitely executing parties of the deed have signed as witnesses along with 7 other witnesses. In such a fact situation, by gathering the intention of the parties and by reading the document as a whole and considering its purport, it can be concluded that the adoption stood the test of law..............."
15. The registered adoptiondeed dated 25.07.1966 has however, been brushed aside by the First Appellate Court by observing that no evidence has been produced to prove that Maru Oraon executed the adoptiondeed. In fact, the defendants have examined Sahadeo Oraon (D.W. 3), the brother of Mardwa Oraon (defendant no.2) who proved his signature on the registered deed of adoption. He deposed that Maru Oraon took Mangal Das Oraon in adoption and executed a registered deed. He also deposed that the deed was written by scribe Abul Khair. Another witness Sohel Akhtar (D.W.5 ), who is the son of the scribe Abul Khair, identified that the deed was written in the hand of his father.
Besides them, Mardwa Oraon (D.W. 1), the natural father of Mangal Das Oraon has deposed that he gave his son Mangal Das Oraon in adoption to Maru Oraon in presence of Pahan and Pujari, according to Oraon custom. The trial court took notice of the fact that the defendants have claimed mutation in respect of the suit land and they produced rent receipts. The First Appellate Court has erroneously discarded the aforesaid evidence of possession of the defendants. In my opinion, the plaintiffs failed to disprove the registered deed of adoption and the First Appellate Court has erroneously relied on the memorandum of adoption allegedly prepared on 10.02.1942. The said memorandum of adoption is not a public document rather, it is a private document, which does not carry any presumption of its validity.
16. In view of the aforesaid discussions, the substantial questions of law formulated on the issue of adoption and 8 limitation are answered in favour of the appellants.
17. I find that no issue on Section 71A of the CNT Act, 1908 was formulated in the courts below. It is well settled that a substantial question of law on an issue which was not contested by the parties in the courts below cannot be formulated unless, it goes to the root of the dispute and there was sufficient pleadings available on record. Moreover, in view of the findings recorded by me on the issue of limitation and adoption, the substantial question of law formulated on the issue of Section 71A of the CNT Act has become redundant.
18. In the result, the Second Appeal is allowed.
(Shree Chandrashekhar, J.) Manish/A.F.R.