Sohagi Tudu And others vs Hemlal Basky And others

This appeal has been preferred against Judgement and Decree dated 28.02.2017 and 10.03.2017 respectively, passed and signed by Principal District Judge, Jamtara in connection with Title Appeal No. 54 of 2015 by which Judgement dated 22.08.2015 and Decree signed on 08.09.2015 passed and signed by Civil Judge (Senior Division) - IV, Jamtara in Title Suit No. 31 of 2005 has been reversed and appeal stood allowed.

Appellants were defendants in the Court below whereas respondents were the plaintiffs. Plaintiffs brought a suit vide Title Suit No. 31 of 2005 in the Court of Civil Judge (Sr. Division) - IV, Jamtara for declaration of their right, title and interest in respect of Schedule-A and B suit properties and the 2/3rd interest of Jitan Basky and Daso Basky in Schedule-D suit properties and further for grant of confirmation of possession or in the alternative recovery of possession of the suit properties, if the plaintiffs are dispossessed therefrom during pendency of suit. Further prayer was made for grant of temporary injunction restraining the principal defendants from creating any obstruction in the possession of plaintiffs on the said properties during pendency of the suit and for perpetual injunction restraining principal defendants from making any sort of claim over the suit properties and cost of suit.

Suit was originally brought against four defendants. According to plaintiffs, they are the lawful owners of the suit properties and principal defendants have no right or title to the same and hence they are entitled to create obstruction in possession of plaintiffs over the suit land. Parties are Santhal by caste and they are governed by their own customary law in regard to inheritance, succession, marriage and divorce etc. Under such customary law, daughters are excluded from inheritance in presence of brothers/ agnates of deceased Santhal and the brothers/ agnates are regarded as the next heirs of deceased Santhal in absence of his male issues. Suit properties described in Schedule-A of the plaint were recorded in exclusive name and possession of Jitan Basky while those described in Schedule-B of the plaint were recorded in exclusive name and possession of Daso Basky. The suit properties described in Schedule-D of the plaint were recorded in joint names and possession of Jitan Basky, Daso Basky and Budhan Basky. Plaintiffs claimed to be lawful owners of the suit properties and principal defendants have no right or title to the same and hence are not entitled to create obstruction in possession of the plaintiffs over the suit land.

The original principal defendants appeared before the learned Trial Court and filed written statement and asserted therein that there is no valid cause of action and suit is barred by law of limitation, estoppel, acquiescence and waiver as well. The defendants further pleaded that the suit is bad for non-joinder of necessary parties like the surviving successor of joint recorded tenants like Suku Basky and Sido Basky. The defendants have further pleaded that the suit is improperly valued as per wrong calculation of approximate value of the house. It was further pleaded that the Santhals accepted the changes being accustomed with Hindu way of life and in course of time became fully Hinduised in every spare of life inclusive of inheritance and succession, particularly in the direction of ameliorating the conditions of women and giving them more assured footing in the family like Hindus and thereby females are accepted as successors.

Learned trial court formulated issues for deciding the suit and after the parties led their oral as well as documentary evidences, held that the suit is not maintainable and hence dismissed.

Plaintiffs filed Title Appeal No. 54 of 2015 before the Court of learned Principal District Judge, Jamtara and the Judgment and Decree passed by learned Civil Judge (Sr. Division) - IV, Jamtara in Title Suit No. 31 of 2005 stood set aside holding therein that Gharjamai amongst Santhals is in essence an act of adoption. Like adoption in Hindu law, Gharjamai adoption in Santhal customary law must be accompanied by some rituals and these rituals or in other words ceremony must be proved for valid adoption or Gharjamai adoption. Learned first appellate court, by referring Ganzer's report in Gharjmai marriage, has held that in Gharjamai marriage father of the bride goes to the house of the groom and brings him to his own house by performing certain rituals and gets the Jamai settled in his house by performing marriage and he is also required to show his lands to the Jamai. Parties claiming to have been married in Gharjamai form, has to prove compliance of such legal requirement. Learned appellate court has held that the defendants have not been able to prove that Gharjamai marriage had taken place nor any averment has been made with regard to rituals and formalities performed and observed in Gharjamai marriage. Daughter is not at all heir of the father, rather customary law of Gharjamai clearly mandates that only Gharjamai can succeed properties of father-in-law. Learned appellate court has relied on the decision rendered in the case reported in 2004(4) JCR 140 (jhr.). The learned first appellate court decided the issue no (iv) formulated by the learned trial court in favour of the plaintiff/ appellant and against the respondents/ defendants. Being aggrieved by the Judgment of first appellate court, the defendants/appellants/ respondents have preferred this appeal.

Defendants/respondents/ appellants have filed this appeal on the ground that the learned lower appellate court has committed gross error by not considering documentary evidence available on record and reasonings have not been given to discard findings of the Trial Court. Findings of the learned lower appellate court appears to be perverse and, therefore, substantial questions of law are required to be formulated for just decision of this appeal.

The learned lower appellate court has chosen the primary point for determination of the appeal - i.e. Issue No. (iv) - Was Sonia Basky and Nunki Basky married in "Ghar-Jamai" form.

Defendants/ appellants have made out a case that they have been enjoying the suit property with consent of the plaintiffs and their ancestors as such the judgment and decree of reversal is absolutely perverse and as such fit to be set aside. The defendants/ appellants have further averred that ancestors of the plaintiffs had allowed the defendants and their ancestors namely Nunki and her husband Bhado to live in the house of Jitan Basky and their land within their knowledge and consent and as such suit of the plaintiff was rightly dismissed and Judgment and decree of learned lower appellate court is illegal, wrong and perverse.

From perusal of Judgment passed by learned lower court, I find that much reliance has been placed on Ext-A, which is merely a blank paper acknowledging Gharjamai marriage. It is neither stamped under the Indian Stamp Act nor registered under Section 17 of the Registration Act. Said Ext-A did not bear any Stamp duty nor it is registered. The contents of document and truth of such contents are not admissible in evidence under Section 90 of the Evidence Act. The learned first appellate court has rightly excluded Ext-A from the purview of evidence and held that said Ext-A is a spurious document. Hon'ble Supreme Court, in the case of Madhusudan Das Vs. Narayani Bai reported in 1983 BBCJ SC 33 has held as under:

"Persons seeking to displace the natural succession to the property by alleging adoption must discharge the burden which lies on him by proof of valid adoption. Proof must be free from all suspicion of fraud and so consistent and probable as to give no occasion for doubting its truth. For a valid adoption physical act of giving and taking is an essential requisite, a ceremony imperative in all adoptions whatever the caste and this requisite also satisfy in its essence only by the actual delivery and acceptance of the boy even though there exists an expression of a consent or an executed Deed of Adoption."

The defendants who claim to have been married in Gharjamai form has to prove the compliance of legal requirements i.e. to prove Gharjamai adoption. According to Ganzer's report, in Gharjamai marriage, father of the bride goes to the house of the groom and brings him to his own house by performing certain rituals and gets the Jamai settled in his house by performing the marriage and he is required to show his lands to the Jamai. In the instant case, the defendants have not been able to prove the same.

Nothing has been brought on record to show that it was a valid adoption and learned appellate court has rightly rejected case of the defendants as they have not been able to prove that adoption was a valid adoption in the eyes of law and as such order of the first appellate court remains intact and requires no interference.

In the result, I do not find any merit in this appeal. Consequently, this appeal stands dismissed.

All pending Interlocutory Applications also stand dismissed.