Jharkhand High Court
Soma Oraon vs Kaila Oraon on 4 January, 2023
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
1 Second Appeal No. 210 of 2004
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Second Appeal No. 210 of 2004
Soma Oraon, S/o Late Khudia Oraon, resident of village- Kulli, P.S.
Bero, P.O. Bero, District- Ranchi ... Appellant
-Versus-
1. Kaila Oraon, S/o Shamu Oroan, resident of village- Kulli, P.S. Bero,
District- Ranchi
2. Deleted
3. Etwa Oraon, son of Late Khudia Oraon
4. Suka Oraon, son of Late Khudia Oraon
5(a). Bisram Oraon, son of Late Gandur Oraon
5(b). Suman Oraon, son of Late Gandur Oraon
6. Jawra Oraon, son of Late Khudia Oraon
7(a). Gopal Oraon, son of Late Jantra Oraon
8(a). Birsa Oraon, son of Late Manga Oraon
8(b). Mahabir Oraon, son of Late Manga Oraon
9. Deleted
10. Butra Oraon, son of Sukra Oraon
11. Deleted
All are resident of village- Kulli Police Station, Bero, P.O. Bero, District-
Ranchi ... Respondents
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Appellant : Mrs. Nievedita Kundu, Advocate
For the Respondents : Mr. S.K. Sahay, Advocate
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16/04.01.2023 Heard Mrs. Nivedita Kundu, learned counsel for the appellant and
Mr. S.K. Sahay, learned counsel for the respondents.
2. This second appeal has been filed being aggrieved and dissatisfied with the judgment dated 10.02.2004 passed by the learned Additional Judicial Commissioner, Fast Track Court No.VII, Ranchi in Title Appeal No.85/2003 affirming the judgment dated 31.01.2003 passed by the learned Sub-Judge IX, Ranchi in Partition Suit No.198/1996.
3. The appellant herein had filed Partition Suit No.198/1996 for partition of the half share in the land described in the Schedule-A of the plaint and for carving out a separate Takhta by appointment of the Pleader 2 Second Appeal No. 210 of 2004 Commissioner. The said partition suit on contest was decided by the learned Sub-Judge IX, Ranchi and after considering the judgment as well as the evidence adduced on behalf of the parties, the learned Sub-Judge has come to the conclusion that Schedule-A of the plaint were previously partitioned much before the revisional survey operation and the respective shares were possessed by all the raiyats and the suit was dismissed. Aggrieved with that judgment dated 31.01.2003, the appellant filed Title Appeal No.85/2003, which was decided by the learned Additional Judicial Commissioner, Fast Track Court No.VII, Ranchi vide judgment dated 10.02.2004, whereby, the appeal has been dismissed and the judgment of the learned trial court has been affirmed. Being aggrieved with that judgment, the appellant has filed this second appeal.
4. This second appeal was admitted on 11.08.2006 on the following substantial question of law:
"Whether the learned courts below are justified in law in presuming partition on the basis of entries in the remarks column showing separate possession, even though they found that there was unequal distribution of the lands?"
5. Respondents were noticed and pursuant thereto the respondents are appeared in this second appeal.
6. Mrs. Nivedita Kundu, learned counsel for the appellants submits that the plaintiffs and the defendant are governed by their Oraon Customary law, however the suit was filed for partition. According to her, the land situated in village- Kulli, P.S. Bero, District- Ranchi being Khata No.16 are the common ancestral properties of the parties. The said Khata was recorded in the name of Kaila Oraon, Dedo Oraon, Mosomat Khelo Oraon, Foure Orain, Maya Oraon, Fatru Oraon and Khoja Oraon. She further submits that after 3 Second Appeal No. 210 of 2004 their death, the plaintiffs and defendant have jointly inherited all the movable and immovable properties of their ancestors. The R.S. Record of right was prepared in the names of Kaila Oraon, Dedo Oraon, Mosomat Khelo Orain, Jaura Oraon, Maya Oraon, Jatru Oraon, Jhuja Oraon, who were the common ancestors of the plaintiffs and defendant. She also submits that it was stated that Mahli Oraon, Maya Oraon and Khoja Oraon shown in the genealogical table in the line of Sumai Oraon, who died issueless so their shares in the suit property devolved in the shares of other heirs of Sumai Oraon and similarly the share of Dedo Oraon who also died issueless in the line of Samu Oraon also devolved in the shares of other heirs of Samu Oraon. On the point of the land mentioned in Scheduled-A of the plaint or ancestral properties of both the parties, she submits that there is unity of title and possession of the plaintiffs and defendant over the suit land and the said property had never been partitioned by metes and bounds and the parties are cultivating the suit land according to their convenience. She further submits that the plaintiffs are entitled for half share in the suit properties mentioned in Schedule-A of the plaint since the major portion of the suit property are being possessed and cultivated by the defendant. Whenever the plaintiffs demanded the partition of the suit land, the same was refused by the defendant on various pretext and ultimately on 15.05.1996 the defendant bluntly refused to give any share in the suit land and, therefore, partition suit was filed. She further submits that both the learned courts failed to consider that the suit property are joint ancestral property of both the parties. She also submits that unless a division is there amongst the co-sharers, the property of the Hindu family remains joint and in that view of the matter, the learned trial court as well as the appellate 4 Second Appeal No. 210 of 2004 court have failed to consider that the the property is joint property of the ancestors. She further submits that in spite of witnesses have supported the case of the appellant by way of saying that there were no partition on the earlier occasion by metes and bounds, both the learned courts have failed to consider this aspect of the matter. She submits that the respondent is in possession of the area of Khata No.16 and that is why the partition suit was filed, however on the pretext of earlier partition, the learned trial court has dismissed the suit, which has been affirmed by the learned appellate court without considering aforesaid aspects of the matter. To buttress her arguments, she relied upon the judgment passed in Deoki Mallah v. Surju Mallahain; [1999 (1) PLJR 199] . By way of relying this judgment, she submits that the property of Hindu family remain joint unless a division is there amongst the co-sharers by metes and bounds, as has been held by this Court in the said judgment. Learned counsel for the appellant further submits that possession by convenience by recording of Kabjawari never infer partition amongst co-sharers, more so when some of the plots in same Khata remained in joint. To buttress this argument, she relied upon the judgment passed in Smt. Maina Devi @ Mainabati Bageria and another v. Mohammad Asagar; (1997 BBCJ 575) . She also relied upon the judgment passed in Smt. Savitri Devi v. Jiwan Chaudhary and others; (AIR 1960 Patna 548) . By way of relying on this judgment, she submits that where it has not been shown that the family members have been separately assessed to chaukidari tax, chaukidari rent receipts in the names of the individual members are of little value in determining the question of jointless or separation. She took much emphasis by way of submitting that there was no partition and waiver area are in possession of 5 Second Appeal No. 210 of 2004 the respondent/defendant, which has not been considered in right perspective by the learned trial court as well as the appellate court and that is why the law point framed by this Court is required to be answered in favour of the appellant.
7. On the other hand, Mr. S.K. Sahay, learned counsel for the respondents submits that Partition Suit No.198 of 1996 was contested by the respondent no.1/defendant on the ground that the plaintiffs' suit was not maintainable and it was barred by limitation and adverse possession and ouster. The suit was also barred by waiver, estoppel and acquiescence and there is no unity of title and possession between the parties to the suit land. The plaintiffs have no cause of action for the suit. He further submits that the suit land which are recorded under Khata No.16 of village Kulli were partitioned much before the revisional survey operation and all the raiyats came in possession of their respective shares as per the partition and accordingly held, possessed and enjoyed their respective shares and, therefore, at the time of revisional survey operation, the possession of each raiyat was noted in the remarks column of the Khatian which is a prima facie proof of partition of the property in the suit. He also submits that the plaintiffs have intentionally not included other land of the parties ancestors fully described in the schedule of the written statement. He further submits that even the genealogical table is not correct and denied by the defendant and the plaintiffs ought to give correct genealogical table. The defendant has admitted this fact that in the suit, the plaintiffs and defendant are governed by Oraon customary law. He further submits that the suit land has already been partitioned with respect to the raiyats who died issueless as mentioned in the plaint and their interest have developed upon the 6 Second Appeal No. 210 of 2004 defendant as the deceased raiyats who died issueless were all along kept, look after and maintained by the defendant and her predecessors-in-interest and Soma Oraon and as such the issueless deceased raiyats have specifically put Soma Oraon in possession over the property of the issueless deceased raiyats and accordingly the defendant alone has subsisting right, title and interest upon the lands in suit. He further submits that the plaintiffs or their predecessors-in-interest never set their foot upon the lands shown in possession of the raiyats who died issueless. He denied the submissions of the learned counsel for the appellant and submits that there is no unity of title and possession between the parties to the suit land. According to him, the plaintiffs are neither in possession over any piece of land nor they have any title to the property in suit and the question of their unity of title and possession over the land in suit does not arise at all. He submits that there is no illegality in the judgment passed by the learned trial court as well as the appellate court, which has been decided on the documentary and oral evidence, contained in Exts. B and B/1. He submits that documentary evidence is there and only on the basis of oral evidence, the said document of documentary evidence cannot be discarded. The learned trial court as well as the appellate court have rightly considered every aspects of the matter and passed the judgment in right perspective. He further submits that there are other properties of ancestors of the appellant and respondents i.e. Khata Nos. 15 and 31, which were exhibited as Exts.B and B/1 respectively. He submits that the entire property has not been brought for partition and only the land of Khata No.16 was the subject matter of partition suit and in that view of the matter, this appeal is required to be dismissed as entire property was not the subject matter of the 7 Second Appeal No. 210 of 2004 partition suit. On these grounds, he submits that this second appeal is fit to be dismissed.
8. In view of the above pleadings and arguments of the learned counsel appearing for the appellant and respondents, the Court has gone through the judgment of the learned trial court as well as appellate court. The learned trial court has perused Ext.-1, which is the Khatian of Khata No.16 which was prepared on 15.02.1935. In column 2, the names of Kaila oraon, Dedo Oraon, Mosomat Khelo Orain, Jawra Oraon, Maya Oraon, Jatru Oraon, Khoja Oraon were mentioned. In column no.17 of the remark column of Ext.1, the name of the person who are in actual possession of the plot in question has been clearly disclosed. The learned trial court has also perused the genealogy given by the plaintiffs and found that Khata No.16 is recorded in the name of ancestors of the plaintiffs and defendant. Kaila Oraon and Dedo Oraon are the ancestors of the defendant and remaining Mosomat Khelo Orain, Jawra Oraon, Maya Oraon, Jatru Oraon and Khoja Oraon are the ancestors of the plaintiffs. The learned trial court has also considered column no.17 of the said Khata and found that the name of persons are mentioned therein, who are in actual possession of the said Khata and held that there is previous partition. The learned trial court has also considered this aspect of the matter that the plaintiffs have not included the property of Khata Nos. 15 and 31 situated in village Tilaksuti and Ranidih which are of different plots. The Khatian of Khata Nos.15 and 31 are marked as Ext.-B and B/1 respectively, which are recorded in the name of Jawra Oraon, Maya Oraon, Jatru Oraon and Khoja Oraon. The Khatian of Khata No.31 has been recorded in the name of Somai Oraon, S/o Kaila Oraon. The Khatian of Khata No.31 was prepared on 15.03.1910 and 8 Second Appeal No. 210 of 2004 the Khatian of Khata No.15 was prepared on 16.02.1935. The learned trial court has also found that in Khata Nos. 15 and 31, there is no name of defendant's ancestor and these two Khatas were exclusively recorded in the name of plaintiffs' ancestor. The learned trial court has also found that in Khata No16 in remarks column on many plots, the possession of the defendant has been entered, which has also been supported and confirmed by the witnesses of both the sides. The learned trial court has considered that so far as Khata No.16 is concerned, major portion of the property was possessed and cultivated by the defendant. Khata Nos. 15 and 31 suggest that there was previous partition and it has been held that Schedule-A of the plaint was previously partitioned much before the revisional survey operation.
9. The learned appellate court has also framed separate issue at paragraph no.8 of the judgment and decided the appeal. The learned appellate court after perusal of Exts.I, B and B/1 found that in Khata No.16, area of land mentioned in column no.14 are not in equal distribution, whereas in column no.17 it has been specifically stated that the land of Khata No.16 are separately hold and possessed by the ancestors of the defendant and appellant. On perusal of Khatian Exts.B and B/1, the learned appellate court found that no land was given to the ancestors of the defendant in another village and considering this aspect of the matter, the learned appellate court has come to the conclusion that there is complete partition amongst the ancestors of the defendant and appellant in the year 1935. The point of recording of Kabjawari, as relied by Mrs. Nivedita Kundu, learned counsel for the appellant has already been answered by the learned appellate court considering Khatian at Ext.1, wherein specific word has not 9 Second Appeal No. 210 of 2004 been mentioned that the Khata remained joint. Thus, the judgment relied by Mrs. Nivedita Kundu in Smt. Maina Devi @ Mainabati Bageria (supra) is not helping the appellant.
10. In the judgment relied by the learned counsel for the appellant in Deoki Mallah (supra), separation was not proved and that is why that question was answered in that judgment, which is lacking in the case in hand. Thus, this judgment is also not helping the appellant.
11. Ext. I is the documentary evidence, which has been considered by the learned appellate court which indicates that heirs of Kaila Oraon has already partitioned amongst themselves and on that basis Khatian was prepared in the year 1935. Exts. B and B/1 of Khatain indicate that at the time of partition, heirs of the appellant were compensated adequately and in that view of the matter, the learned appellate court has held that there was separate possession, separate mess, separate residence, separate cultivating possession of the land in question, which shows that the partition has already been done in between the heirs of Kaila Oraon much before.
12. It is well settled that when a case of a party is based on a genealogy consisting of links, it is incumbent on the party to prove every link thereof and even if one link is found to be missing then in the eye of law the genealogy cannot be said to have been fully proved.
13. There is concurrent finding on the basis of the documentary evidence as well as the oral witnesses. Both the learned courts have found on the basis of evidence on record that the partition was occurred in the year 1935 itself and in that view of the matter, the High Court while hearing the second appeal is bound by the finding of the fact concurrently arrived at by the courts.
10 Second Appeal No. 210 of 2004
14. In view of the above analysis and reasons, the law point is answered accordingly. No relief can be extended to the appellant.
15. Accordingly, this appeal is dismissed.
(Sanjay Kumar Dwivedi, J.) Ajay/