Jharkhand High Court
Balia Majhi vs (A) Chando Majhi on 25 July, 2025
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Second Appeal No.181 of 2003
[Against the judgment and decree dated 23.12.2002, decree signed on
06.01.2003 passed by learned First Additional District Judge,
Seraikella, Kharsawan in Title Appeal No.7 of 1996]
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1. Balia Majhi
2. Chandrai Majhi
Both sons of late Kade Majhi
3.(a) Smt. Parwati Murmu (widow)
3.(b) Sunil Kumar Majhi(son)
3(c) Deepak Kumar Majhi(son)
3(a) is widow of late Anup Majhi and 3(b) and 3(c) are sons
of late Anup Majhi
All resident of village-Bagraisai, P.S. Rajnagar, P.O.-
Govindpur, District-Singhbhum (west)
.... .... Appellants/Defendants
Versus
1. (a) Chando Majhi
2. Tuklu Majhi, son of lae Mundra Majhi, resident of village-
Pandugite, P.S.-Rajnagar, P.O.-Govindpur, District-West
Singhbhum
3. Dy. Commissioner, West Singhbhum
.... .... Respondents/Plaintiffs
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PRESENT
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
JUDGMENT
For the Appellants : Mr. Ashutosh Mishra, Advocate For Resp. Nos.1 & 2 : Mr. Saibal Mitra, Advocate For Resp. No.3 : Mr. Varun Prabhakar, A.C. to G.P.-III
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CAV On 07/07/2025 Pronounced On 25/07/2025
1. Heard the arguments of learned counsel for the appellants and learned counsel for the respondents.
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2. The instant second civil appeal is preferred being aggrieved and dissatisfied with the judgment and decree dated 23.12.2002 (decree signed on 06.01.2003) passed by learned First Additional District Judge, Seraikella, Kharsawan in Title Appeal No.7 of 1996, whereby and whereunder the judgment and decree passed by Sub-ordinate Judge-II, Saraikella in Title Suit No.04 of 1991 has been upheld and confirmed and the appeal preferred by the appellants/defendants is dismissed on contest with cost.
3. The plaintiffs/respondents have instituted the Title Suit No.04 of 1991 for a decree of declaration of their right, title and interest and confirmation of possession over the suit Schedule 'A' land. Further, declaration that the order passed by Anchal Adhikari of Rajnagar Anchal in Mutation Case No.228 of 1988-89 dated 19/20th March, 1989 and the order passed by learned Additional Deputy Commissioner, Singhbhum under Mutation Revision Case No.37/89-90 is bad in law which do not confer any title and possession to the defendants over the suit land. In alternative, the plaintiffs have also prayed for recovery of possession, if found dispossessed, from Scheduled 'A' land.
The case of plaintiffs is that the suit lands recorded under Khata Nos.31 and 32 in the record of rights of Mauza, Bagaraisai, P.S. Rajnagar, District-Singhbhum was recorded in the name of common ancestor of the parties namely Mutu Majhi. The relationship of the parties is based on following genealogy:- S.A. No.181 of 2003 2
2024:JHHC:449762024:JHHC:44976 Mutu Majhi 1st wife (Most. Singa Majhiain) 2nd wife (Most. Sonia Majhiain) 1 2 3 4 5 6 7 8 Mundra Arjun Lakhan Tiburam Narayan Bhadao Tura Dandu (died before (died issueless (died issueless) (died Issueless (died Issueless Partition) before partition) before partition) before partition) before partition) Tuklu Chandra Bale(daughter) Mutu Barsa Anup(died) Kade (died before Chaitan(Gharjamai) (died unmarried) partition) Balia Anup(died) Chandrai Mudra(died) Arjun (Original Plaintiff No.1) (Defendant (original (Defendant No.1) defendant No.3) No.2) Tuklu Chando Sunil Kr.
( Original (plaintiff)
Plaintiff No.2) Deepak Kr.
[Defendant No.3(c)]
4. It is submitted that out of five sons from first wife, Arjun Majhi and Tiburam Majhi died issueless before 1925 and Mundra Majhi died leaving behind two sons Tuklu Majhi and Chandra Majhi. Taklu Majhi died leaving behind no male issue except daughter namely Nagi Majhian, who was already married. Chandra Majhi died leaving behind Mudra Majhi and Arjun Majhi, the plaintiff No.1. Arjun Majhi is the son of Chandra Majhi and plaintiff No.2 is the son of Mundra Majhi, the full brother of Arjun Majhi, who is residing with the plaintiff, Arjun Majhi after the death of his father.
Further, Lakhan Majhi is third son of the Mutu Majhi born through his first wife and died leaving behind a daughter S.A. No.181 of 2003 3 2024:JHHC:449762024:JHHC:44976 namely Bale Majhian, who has been given in marriage. Narayan Majhi, the fifth son of Mutu Majhi who born through first wife died leaving behind him a son Barsa Majhi, who inherited the property of his father and in current settlement these properties have exclusively been settled in his name pertaining to Khata Nos. 31 and 32 (suit property). Further, the case of the plaintiffs is that Mutu Majhi has also 3 sons from his second wife namely, Bhadao Majhi, Tura Majhi and Dandu. Out of them, Bhadao Majhi and Dandu Majhi died issuless. Tura Majhi died leaving behind two sons, namely Anup Majhi and Kade Majhi, who inherited the properties of their father. Anup Majhi has no male issue and died leaving behind him a daughter Ganga Manjhain, who was married. Kade Majhi died leaving behind his 3 sons i.e. defendant Balia Majhi (Defendant No.1) Chandrai Majhi (Defendant No.2) and Anup Majhi (Defendant No.3), who inherited the properties of their deceased father.
5. It is further stated that both the parties are ab-original and not governed by Hindu Succession Act, 1956 they are governed rather by their own customary law in the matter of succession and inheritance where married daughters and widows are entitled only for maintenance till their marriage or died as a case may be. It is further pleaded that the plaintiffs being nearest agnates of the recorded owner Barsa Majhi, who was son from the first wife of Mutu Majhi and real brother of the plaintiffs' branch and died leaving no male child and married daughters are not entitled for S.A. No.181 of 2003 4 2024:JHHC:449762024:JHHC:44976 inheritance, hence, the plaintiffs performed the last ceremony of Barsa Majhi and legally entitled for inherited properties.
The defendants being remove kindered are not entitled to inherit the property left by Barsa Majhi but the defendants started raising trouble in the peaceful possession of the plaintiffs over the properties left by Barsa Majhi Suit Schedule A property and proceeding under sections 144 and 145 of Cr.P.C was undergone between the parties and the possession of plaintiffs were declared over the disputed property and they are still in possession. The order passed under section 145 of Cr.P.C. was not challenged by the defendants. It is further stated that the defendants in collusion with Revenue Officers, after lapse of 13 years from the order passed in Misc. Case No.287 of 1973, filed a petition before Anchal Adhikari claiming mutation of their name in respect of scheduled 'A' land stating therein that they are nearest agnates of recorded Barsa Majhi. Accordingly, the Mutation Case No.228/1988-89 registered. In spite of objection raised by the plaintiffs, the order was passed in favour of the defendants and the Mutation Appeal No.3 of 1989 filed by the plaintiffs before L.R.D.C., Seraikella and the order of Anchal Adhikari, Rajnagar was set aside and the case was remanded back to Anchal Adhikari for passing fresh order in accordance with law vide order dated 12.12.1989. Thereafter, the defendants filed a revision before the Additional Deputy Commissioner, Singhbhum bearing No.37 of 1989-90 challenging the order of L.R.D.C., S.A. No.181 of 2003 5 2024:JHHC:449762024:JHHC:44976 wherein the order passed in appeal was set aside and the order of Anchal Adhikari, Rajnagar was restored and confirmed vide order dated 07.09.1990. It is further submitted that the aforesaid order passed by Revenue Authority is absolutely illegal and does not confer any right, title and interest to the defendants who are not entitled to inherit the property of Barsa Majhi and never came in possession thereof. Hence, the suit was filed.
6. On the other hand, the defendants filed their written statement and contested the suit denying the contents of plaint. It is admitted that the suit property pertaining to Khata Nos.31-32 recorded in the name of Barsa Majhi, son of Narayan Majhi. The genealogical table given by the plaintiffs is also not complete. It is further alleged that the Narayan Majhi died before 1965 leaving behind his two sons Mutu and Barsa and Mutu died in the year, 1935- 1936 and Barsa died in the year 1965 and his wife Baso died in the month of Magh, 1973, who was being maintained from the lands left by Barsa Majhi. It is further alleged that there are five sons from one mother and three sons from another of common ancestor Mutu Majhi simply being barred from different mother does not affect the right of succession. Therefore, in Santhal, all sons of a father who desire to separate receive equal share either born from same mother or from different mother. Therefore, the contesting defendants are equally related to Barsa Majhi along with the plaintiffs and they are also agnates of the same degree of Barsa Majhi as the plaintiffs. It is also stated that after death of S.A. No.181 of 2003 6 2024:JHHC:449762024:JHHC:44976 Barsa Majhi, Kade Majhi has performed his funeral ceremony in the year, 1965 in accordance with Santhal Custom and also after death of his wife in 1973, the funeral ceremony was performed by defendants also.
It is also admitted by the contesting defendants that the property left by Mutu Majhi were partitioned among his sons or grandsons, who were then alive just before Abdul Survey in village Bagraisai in the year 1925-27. In the said partition, 22.8 acres of land were allotted to the share of Mundra, which was recorded under Khata No.41 in his exclusive name. Similarly, Lakhan was allotted 9.24 acres of land, which was recorded in his name under Khata No.35 of Revisional Survey settlement, which was inherited by son-in-law as ghar-damad. It is also admitted fact that though they inherited the property left by Lakhan, they have no right to inherit any property left by their descendent of Mutu Majhi because they are not agnates of descendents of Mutu Majhi. Therefore, they had not inherited the property left by Barsa. The land allotted to Mutu and Barsa was 11.20 acres recorded in Khata Nos.31-32. The contesting defendants further pleaded that the land pertaining to Khata No.31, Plot No.645 and 673 has been sold by Barsa Majhi to the father of the defendants which they are possessing of their own land. It is further stated that after the death of Baso Majhain, the wife of Barsa Majhi, the partition took place in 1973 in which total area of 6.41 acres of land as Jyesth Ansh were allotted to the share of plaintiffs and S.A. No.181 of 2003 7 2024:JHHC:449762024:JHHC:44976 area 4.90 acres was allotted to the share of Kade Majhi, father of the defendants. The last partition was under Khta Nos. 31 and 32 in village Bagraisai except the property sold by Barsa Majhi during lifetime. It is further alleged that the lands allotted to the plaintiffs in the aforesaid partition, after death of the wife of Barsa Majhi, shown in Schedule 'A' of the written statement, while the land allotted to share of Kade Majhi has been shown in schedule 'B' property. The defendants have their house on plot No.446 and also excavated a pond on the Plot Nos.450 and 454 of Khata No.31 of village Bagraisai. These plots along with other plots were allotted to Kade Majhi on partition. The other property mentioned in schedule 'B' to the written statement is in possession in the defendants. The plaintiffs have no right, title and interest or possession over the property schedule 'B' to the plaint, which are allotted to the share of the defendants and the suit has been filed with false and frivolous claim. The mutation has also been effected in the name of defendants and they are in possession after paying revenue to the government. The orders passed by S.D.O. in criminal proceedings under sections 144 and 145 of Cr.P.C have no effect at all over the title and possession of the defendants.
7. On the basis of pleadings of the parties following issues were settled for adjudication by learned trial court.
(i) Whether the suit as famed is maintainable?
(ii)Whether the plaintiffs have cause of action for this suit.?S.A. No.181 of 2003 8
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(iii)Is the suit barred by limitation, estoppel, waiver, acquiescence or by way of the provisions of C.N.T. Act?
(iv)Whether the suit is barred under any provision of Specific Relief Act?
(v) Whether there was any partition in between the plaintiffs and Kade Majhi, the father of the defendants and whether the suit lands fell in exclusive share of the plaintiffs?
(vi) Whether the plaintiffs have exclusive right, title, interest and possession over the sit land shown in schedule 'A' of the plaint.
(vii)Whether the plaintiffs have been dispossessed from the suit property during the pendency of the suit?
(viii) To what relief or reliefs, in any, the plaintiffs are entitled?
8. Learned trial court has adjudicated issue Nos. I, III and IV taking simultaneously on the ground that the parties have not pressed the above issues. The vital issue Nos.V and VI were taken together for adjudication and recorded findings that amongst the alive sons of both wives of Mutu Majhi, the ancestral property was divided equally and Abdul Survey of 1925-27 shows separate Khata of defendants, sons of Mutu Majhi in the recorded of rights. Learned trial court has also considered oral evidence adduced by the parties as well as documentary evidence of defendants and arrived at conclusion that there was never any partition of the properties of Barsa Majhi in between the plaintiffs and Kade Majhi and the suit land was never allotted to the share of Kade Majhi in the alleged partition and he never came in possession of the suit land nor the defendants are in possession of the same. The S.A. No.181 of 2003 9 2024:JHHC:449762024:JHHC:44976 plaintiffs being nearest agnates of Barsa Majhi have exclusive right, title and interest over the suit shown in schedule 'A' of the plaint. Accordingly, the aforesaid issues were decided in favour of the plaintiffs and against the defendants. In view of main findings recorded in favor of the plaintiffs, the issue Nos. II,VII and VIII were also decided in favour of the plaintiffs and against the defendants and the suit of the plaintiffs was decreed.
9. The defendants filed Title Appeal No.7 of 1996 before the District Judge, Saraikella, Kharsawan wherein on the basis of arguments of parties, the learned appellate court has formulated following points for consideration:-
(1) Whether the plaintiffs have inherited the suit land as nearest agnates of Barsa Majhi and coming in possession over the same continuously and thus acquired title and possession over the suit land?
(2)Whether the partition took place in between the father of the defendants and plaintiff No.1 in respect of land of Barsa Majhi and the suit lands were allotted to the share of the father of defendants in partition?
(3)Whether the defendants are coming in possession over the suit land since the time of their father and acquired title over the same? (4)Whether the judgment and decree passed by learned lower court is fit to be set aside and the present appeal is fit to be allowed?
10. Learned appellate court re-appreciated the oral and documentary evidence led by the parties before the trial court and has decided all the points against the S.A. No.181 of 2003 10 2024:JHHC:449762024:JHHC:44976 appellants/defendants and in favor of the plaintiffs and dismissed the appeal, accordingly.
11. The defendants/appellants have preferred this second appeal challenging the judgment and decree passed by learned trial court as well as learned appellate court on following substantial question of law formulated vide order dated 05.07.2006:-
"Whether the descendants of the same father but through different mothers will have distinction in the matter of inheritance and the sons born out of the same father but one mother shall be nearer than the sons born out of the same father but different mothers for the purpose of inheritance according to Santhal Customary law?"
12. Learned counsel for the appellants has submitted that the trial court as well as learned first appellate court have completely failed to consider and virtually ignored the settled Customary Law prevailing in Santhal Tribal Community. It is settled Customary Law that in case the male died issueless his property devolved upon his nearest agnates to the extent of equal degree. Therefore, after the death of Barsa Majhi, the property left by him was equally partitioned between the plaintiffs and the father of the defendants namely Kade Majhi, which was also recognized by the Revenue Court and mutation has been affected in favor of the appellants/defendants. Learned counsel for the appellants has also pointed out some customs prevailing in Santhal Tribal Community regarding inheritance and succession and submitted S.A. No.181 of 2003 11 2024:JHHC:449762024:JHHC:44976 that in Santhal Community polygamy is prevalent since long. There is no distinction in the matter of inheritance by the sons born from different wives and all sons are equally entitled for inheritance to the property of the male based on patriarchal prioritized male heir. The wives and daughters are excluded from succession rather have right of maintenance only. This stands from the Santhali that the land remains within the male lineage to preserve clown identity and economic stability. It is further submitted that in the instant case, the defendants are also agnates of equal degree with the plaintiffs' branch therefore, entitle to succeed the property led by Barsa Majhi and no discrimination in the matter of succession can be recognized as per customary law. Therefore, the judgment and decree passed by both the courts bellow is liable to be set aside.
13. On the other hand, learned counsel for the respondents/plaintiffs refuting the aforesaid arguments advanced on behalf of the appellants submitted that it is admitted fact that the live sons of Mutu Majhi from both the wives had obtained their share as per customary law through partition. After partition, each branch from the first wife of the Mutu Majhi as well as second branch by second wife were occupying their property and allotted shares since 1925-27. The record of C.S. settlement record of rights also shows that their separate names over the allotted landed property. It is further submitted that Barsa Majhi and his wife belongs to the branch of plaintiffs and ancestors and not the S.A. No.181 of 2003 12 2024:JHHC:449762024:JHHC:44976 branch of defendants therefore, the property of Barsa Majhi as per Santhal Traditional Practice goes to the nearest agnates and not to the distant kindred i.e. defendants. Therefore, the inheritance and partition of property of Barsa Majhi claimed by the defendants is absolutely illegal and disbelieved by concurrent findings of the trial court as well as appellate court. Learned counsel for the appellants has not brought on record any recognized text of law whereby the property of Barsa Majhi devolved to the distant kindred i.e. defendants. Therefore, the substantial question of law formulated in this case cannot be sustained and this appeal is devoid of merits and is fit to be dismissed.
14. I have gone through the judgments passed by learned trial court as well as in the light of contentions raised on behalf of both the sides and also the text of customary law pointed out by learned counsel for the appellants/defendants, there is no doubt that polygamy is prevalent in the tribal community of Santhal Paragana and there is practice of equal right of inheritance of the property by sons irrespective of the wives from whom they have been born. The sons from all wives having equal rights of inheritance in the property of their father and the succession is dominated by male heir(s) excluding female heir(s) who are entitled to live-state or maintenance.
In the instant case, there were two wives of male propitiators/proprietor Mutu Majhi, from first wife, he had five sons, from second wife, he had three sons. Out of 8 sons, some S.A. No.181 of 2003 13 2024:JHHC:449762024:JHHC:44976 died during life time of their father. It is also admitted that property was equally divided and partitioned between all sons born from both wives as per customs prevailing in the society recognizing the excess share in favor of eldest son i.e. primogeniture. It is also admitted facts that the property of one Barsa Manji was disputed in the case in the matter of inheritance, who belong to the branch of first wife of Mutu Majhi and the defendants are descendants of the branch of second wife of Mutu Manji. The custom recognizes nearest kindred on the basis of consanguinity and affinity to have the right of succession. The descendant kindred of different branch have no claim of the same right of inheritance to the property belonging to another branch. Learned counsel for the appellants has failed to bring on record any custom or practice prudent to aforesaid principle and recognizing the descendant kindred's right of succession. The equally partition of property left by Barsa Majhi in between the plaintiffs and the father of the defendants has also not been proved and not accepted by both the courts below. Therefore, it appears that no substantive principle of law recognizing the substantial question of law formulated in this appeal.
15. In view of the aforesaid discussions and reasons, I do not find any merits in this appeal, which stands dismissed on contest and both the parties shall bear their own cost.
16. Pending I.A(s), if any, stands disposed of accordingly. S.A. No.181 of 2003 14
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17. Let the copy of this judgment along with Trial Court Records be sent back to the court concerned for information and needful.
(Pradeep Kumar Srivastava, J.) High Court of Jharkhand, Ranchi Date: 25/ 07/2025 Pappu/- N.A.F.R. S.A. No.181 of 2003 15