Etwa Oraon vs Jagdish Oraon

Anil Kumar Choudhary, J

I.A. No.755 of 2022

Heard the parties.

Learned counsel for the appellants submits that the appellants do not press this interlocutory application.

Accordingly, this interlocutory application is rejected as not pressed.

S.A. No.428 of 2019

This Second Appeal, under Section 100 of Code of Civil Procedure, has been preferred against the judgment of concurrence dated 28.02.2015 passed by the Additional Judicial Commissioner-X, Ranchi in Title Appeal No.17 of 2013 whereby and where under the learned first appellate court dismissed the appeal and upheld the judgment and decree passed by the Additional Munsif-II, Ranchi in Title Suit No.16 of 1998 dated 14.02.2013 by which the learned Additional Munsif-II, Ranchi dismissed the suit of the plaintiffs; filed with the prayer for declaration of their right and title over the suit property, cost of the suit and other reliefs.

The brief fact of the case is that the parties to the suit belong to Oraon community- Scheduled Tribe and they are governed by their own customary law in the matter of inheritance and succession, according to which, a widow and daughter are excluded from inheritance of deceased raiyat.

The case of the plaintiffs in brief is that the suit property consisting several plots was originally recorded in the name of Mangal Oraon and Charwa Oraon. The suit property was gifted to the mother of the plaintiff No.2 namely Bhikhni Orain through a deed of Bakhshisnama executed on 26.08.1952 by Mangal Oraon and Charwa Oraon. After the said gift, Bhikhni Orain came in possession of the suit land and rent receipts were issued in her name by the landlord of the village. After vesting of the suit land in the State of Bihar, demand was opened in the name of Bhikhni Orain and she regularly paid the rent. The plaintiffs, being the son-in-law and daughter of Bhikhni Orain and her husband namely Sohrai Oraon, cultivated the suit property with consent of Bhikhni Orain and Sohrai Oraon and thus, the plaintiffs became owner having right, title and interest over the suit property and they remained in peaceful possession of the same. The defendant No.1, having no right, title and interest over the suit land, instituted a false complaint case against the plaintiffs in which an order was passed to execute bond to maintain peace and tranquility. In the present survey operation in the Banda Parcha i.e. preliminary Record of Rights, the defendant got her name entered without having any right, title or interest over the suit property. On the basis of the said wrong entry in the preliminary Record of Rights, the original defendant and her family members initiated a proceeding under Section 144 of the Code of Criminal Procedure being case No.M-1895/1997 and vide order dated 17.11.1997, the learned SDM, Ranchi restrained the plaintiffs. Hence, the plaintiffs filed the suit.

In her written statement, the defendant No.1 challenged the maintainability of the suit on various technical grounds and further pleaded that first time on 04.04.1989, the plaintiffs got prepared an adoption deed in which Bhikhni Orain was shown as an adopted daughter but the said deed was cancelled on 26.09.1989 and on the same date, a new adoption deed was prepared in which Etwa Oraon was shown as Ghardamad but no sanction was taken from the competent authority under Section 46 of the Chota Nagpur Tenancy Act, before registration of the deed. On the strength of the adoption deed, the plaintiff No.1 attempted to mutate his name in the Circle Office, Bero in respect of the suit property but when he did not succeed, Misc. Case No.511 of 1989 was filed by the plaintiffs in the name of Sohrai Oraon, seeking permission to gift the suit property to the plaintiffs, in which the defendant filed an objection. Since Sohrai Oraon died during the pendency of Misc. Case No.511 of 1989, the application was rejected. The plaintiffs again attempted to mutate their names in the capacity of successor to the recorded raiyat of khata No.157 on the basis of Ghardamad and in the said mutation case No.127(R)/1991, the defendant filed her objection. After verification, Circle Officer rejected the application for mutation on 05.02.1992. In the appeal against the said order, the LRDC, Ranchi remanded the case to the Circle Officer and the Circle Officer, vide order dated 28.11.1996, rejected the application for mutation. An attempt was made by the plaintiffs to implicate the defendant and her family members in a false criminal case and the defendant, her sons and husband were acquitted in the said criminal case. In the draft Record of Rights, the name of the defendant was rightly entered. One of the recorded raiyat namely Mangal Oraon died leaving behind his two daughters namely Karmi Orain and the defendant No.1 namely Chamari Orain. Husband of Chamari Orain namely Somra Oraon was adopted as Ghardamad by Mangal Oraon. The other recorded raiyat Chamari Orain died issueless. After death of Charwa Oraon, Mangal Oraon became the owner of the entire land. The defendant denied execution of Bakshisnama by Mangal Oraon and Charwa Oraon in favour of Bhikhni Orain and pleaded that the said alleged Deed of Gift was never produced before any authority by anybody and the same is a forged and fabricated document prepared only for the purpose of this suit. The defendant also denied, the demand having ever been opened. The defendant further pleaded that Bhikhni Orain and her husband- Sohrai Oraon died issueless and the plaintiff Bhukhli Orain is an illegitimate daughter of Dhidhu Oraon, the brother of Sohrai Oraon. Therefore, it is falsely said that Bhukhli Orain is the daughter of Bhikhni Orain and Sohrai Oraon. The defendant No.2- Deputy Commissioner was a formal defendant. In its written statement, the Deputy Commissioner denied the averments made in the plaint.

On the basis of the rival pleadings of the parties, the learned trial court settled the following six issues: -

i. Is the suit maintainable in its present form?

ii. Has the plaintiff valid cause of action for the suit?

iii. Has the plaintiff right, title and interest over the suit property?

iv. Is the suit barred by limitation, estoppels, waiver and acquiescence?

v. Whether the plaintiff is entitled to the reliefs prayed in the suit?

vi. To what other reliefs plaintiff is entitled to?

In support of their case, the plaintiffs examined nine witnesses and proved the documents which have been marked Ext.1-3 whereas from the side of the defendants, five witnesses were examined and the defendants also proved the documents which have been marked Ext.A to I.

Learned trial court first took up issue No.iii and after considering the evidence in the record, came to the conclusion that Ext.3, which is an unregistered gift deed, was not proved and there was an inherent contradiction in the relationship of donee and her husband by the Deed of Adoption No.7583 dated 29.06.1989. The plaintiff No.2 is not said to be the natural daughter of the ‘donee’ or Sohrai Oraon but P.W.6 said that plaintiff No.2 was an adopted daughter of ‘donee’ which fact was supported by the plaintiff himself being P.W.7 who stated that plaintiff No.2 was brought up in the house of ‘donee’ and then adopted also. The land receipts of pre-vesting and post-vesting of the gift were irreconcilable with each other because when Ext.B/2 was for 3.36 ½ acres but the other rent receipts were for 6.73 acres and the learned trial court came to the conclusion that the plaintiffs are having no right, title and interest over the suit property and answered issue No.(iii) in the negative.

The learned trial court next took up issue No.(iv) and held that there is no occasion for the plaintiffs to waive or acquiesce the acts of the defendant No.1, as the defendant No.1 had all ingredients of ownership and possession. In respect of issue No.(ii) next taken up by the learned trial court, the learned trial court held that the plaintiff has no cause of action for the suit and in respect of the issue No.(i), the learned trial court held that the suit is maintainable. Lastly, the learned trial court took up issue Nos.(v) and (vi) together and held that since in view of the finding in respect of the other issues, the plaintiffs are not entitled to any relief and dismissed the suit.

Being aggrieved by the judgment and decree passed by the learned trial court, the plaintiffs filed Title Appeal No.17 of 2013 in the court of Judicial Commissioner, Ranchi which was ultimately heard and disposed of by the learned first appellate court as already indicated above.

The learned first appellate court, on the basis of the materials available in the record and the submissions made before it, formulated the following three points for determination: -

(a) Whether through the Bakhshisnama of year 1952 Bhikhani got right title, and interest over the suit property?

(b) Whether the plaintiff no.1/appellant no.1 was Ghardamad of Bhikhani and Sohrai?

(c) Whether learned trial court has committed an error in dismissing the suit of the appellants?

The learned first appellate court first took up point for determination No.(a) and made independent appreciation of the evidence in the record and considered that admittedly, Mangal Oraon and Charwa Oraon were tribals and in terms of Section 46(1)(b) proviso (a) of the Chota Nagpur Tenancy Act, sanction of the Deputy Commissioner is essential for transfer of holding by scheduled tribes by way of gift and as the plaintiffs could not bring any evidence in the record nor there is any pleading of the plaintiffs regarding the sanction accorded by the Deputy Commissioner for effecting the gift and the fact that Section 123 of the Transfer of Property Act mandates that a gift can be effected only by a registered instrument, signed by or on behalf of the donor and attested by two witnesses but admittedly, as the Bakshisnama- the gift deed marked Ext.3, was an unregistered document, hence, the learned first appellate court held that the Bakshisnama dated 26.08.1952 does not confer any right, title or interest upon the Bhikhni- the donee and decided the point for determination No.(a) accordingly.

The learned first appellate court next took up point for determination Nos.(b) and (c) together and after considering the evidence in the record and considering its finding in respect of point for determination No.(a), went on to observe that even if it is found and held for a moment that the plaintiff No.1 was the Ghardamad of Bhikhni and Sohrai, it makes no difference because the suit property if was not belonging to Bhikhni and Sohrai, then, nothing could be passed on to the plaintiff No.1 in capacity of Ghardamad. The learned first appellate court also considered that P.W.1 stated that plaintiff No.1 also received share in the paternal property, goes to show that he was not the Ghardamad and went on to hold that the plaintiff has failed to prove the factum that the plaintiff No.1 is a Ghardamad of Bhikhni and Sohrai and decided the point for determination No.(b) accordingly.

Learned first appellate court further held that the learned trial court has not committed any error in passing the impugned judgment and order. Hence, the judgment and decree passed by the learned trial court do not require any interference and answered the point for determination No.(c) accordingly and dismissed the appeal.

Learned counsel for the appellants submits that both the courts below failed to consider whether Rameshwar Marwari is not the landlord of the village in the year 1952. It is, further, submitted that both the courts below failed to consider that the suit land is not self-earned property of Bhikhni. Hence, it is submitted that the judgment and decree, passed by both the courts below, being not sustainable in law, be set aside and the suit of the plaintiffs be decreed, after formulating appropriate substantial questions of law.

Learned counsel for the respondents on the other hand vehemently opposes the prayer made by the plaintiffs and submits that ‘whether or not Rameshwar Marwari is the landlord of the village in the year 1952’ is irrelevant so far as the facts of this case; because it is the case of the plaintiffs that it is Mangal Oraon and Charawa Oraon who executed the Bakshisnama in favour of Bhikhani Orain. Rameshwar Marwari has no role even as per the case of the plaintiffs in execution of the Bakshisnama- which, in other words, is known as gift deed. It is next submitted that when it is the admitted case of the plaintiffs that Bhikhani Orain got the suit property by way of gift-deed executed by Mangal Oraon and Charawa Oraon, there was no occasion for both the courts below to consider that the suit property is the self-earned property of Bhikhani Orain because it was not even the case of the plaintiffs. It is next submitted that both the courts below have arrived at the concurrent finding of fact. Hence, there is absolutely no substantial question of law involved in this Second Appeal. It is lastly submitted that, this Second Appeal, being without any merit, be dismissed.

Having heard the submission made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that it is the case of the plaintiffs that the plaintiffs who claim to be the descendant of Bhikhani Orain and her husband Sohrai Oraon, that Bhikhani Orain acquired the suit property by way of unregistered gift deed executed by Mangal Oraon and Charawa Oraon in her favour. As has rightly been held by both the courts below that Section 46(1) (b) proviso (a) of the Chota Nagpur Tenancy Act, 1908 mandates that inter alia transfer of ownership, by way of gift of any land by person belonging to a Member of Scheduled Tribe can never be done without the prior sanction of the Deputy Commissioner. There is absolutely no material in the record that neither any pleading nor any evidence that Mangal Oraon or Charawa Oraon obtained the sanction of the Deputy Commissioner for transfer of ownership of the land in favour of Bhikhani Orain by way of gift deed. So, firstly, such gift deed was hit by the provisions of Section 46(1) (b) proviso (a) of the Chota Nagpur Tenancy Act. Secondly, Section 123 of the Transfer of Property Act, 1882 which reads as under:-

“123. Transfer how effected.—For the purpose of making a gift of immoveable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses.

For the purpose of making a gift of moveable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery.

Such delivery may be made in the same way as goods sold may be delivered.”

mandates that transition for the purpose of preliminary gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, attested by at least two witnesses.

Admittedly, the gift deed marked Ext.3 is an unregistered document. So, such a gift deed is hit by the provisions of Section 123 of the Transfer of Property Act, 1882.

Under such circumstances, this Court do not find any illegality in the concurrent finding of fact arrived at by both the courts below that the plaintiffs have failed to establish that acquisitions of any right, title or interest in respect of the suit land by way of Bakshisnama which, in other words, means gift deed executed by Mangal Oraon and Charawa Oraon in favour of Bhikhani Orain. So, as Bhikhani Orain has no right, title or interest acquired by her, obviously, the plaintiffs, who are claiming through her, have also no right, title or interest in respect of the suit property.

Under such circumstances, ‘whether or not Rameshwar Marwari was the landlord of the village in the year 1952’ is irrelevant for adjudication of the dispute between the parties. Therefore, in the considered opinion of this Court, both the courts below have not committed any illegality by not considering any irrelevant fact, for adjudication of the dispute between the parties, as to whether or not Rameshwar Marwari was the landlord of the village in the year 1952. Similarly, it is not the case of the plaintiffs even, that the suit property is self-earned property of Bhikhani Orain, so, both the courts below, in the considered opinion of this court, have not committed any illegality by not considering that the suit property is self-earned property of Bhikhani Orain.

In view of the discussions made above and after going through the materials available in the record, this Court finds that there is absolutely no substantial question of law involved in this Second Appeal.

Accordingly, this Second Appeal, being without any merit, is dismissed but under the circumstances without any cost.

Let the copy of this judgment be sent to the courts concerned forthwith.