TRILOCHANA KUANR Vs. BILA BHOI AND ANOTHER

JUDGEMENT

(1.) This appeal has been filed against the judgment and decree passed by the learned Addl. District Judge, Sonepur in Title Appeal No. 9 of 2001 confirming the judgment and decree passed by the learned Civil Judge (Sr.Divn.), Sonepur in T.S. No.53 of 1993. The respondents as the plaintiffs had filed the above noted suit for declaration that the defendant no. 1 is not the adopted son of Daman Kuanr and Kansala Kuanr and also for declaration that they are the successors of defendant no. 2 with other reliefs. The suit having been decreed granting the reliefs as prayed for to the plaintiffs -respondents, the present appellant as the unsuccessful defendant no.1 had filed the appeal under Section 96 of the Code of Civil Procedure which was numbered as Title Appeal No. 9 of 2001 in the court of learned Addl. District Judge, Sonepur. Said appeal having also been dismissed, the present second appeal under Section 100 of the Code of Civil Procedure has been filed.

(2.) For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the trial court.

(3.) The plaintiffs case is that the parties are Hindus and Kandha by caste belonging to Scheduled Tribe and as such are not governed by the provision of Hindu Succession Act as also Hindu Adoption and Maintenance Act. It is stated that they follow the custom and other rites prevalent in their caste and community. It is stated that one Jage is the common ancestror of the parties. He died leaving two sons namely Suban and Daman. Suban had three wives. Out of them Duti being alive was original defendant no. 2 who has died during the suit. Daman died leaving behind his widow and a daughter. Both of whom are dead. The plaintiff nos. 1 and 2 are Daman's daughter's daughter and son respectively. It is stated that the suit land originally belonged to Suban and Daman and it stood recorded as such their names. After the death of Suban and Daman both the branches were and are in actual possession of the suit land till the death of Duti. On the death of Duti, the plaintiffs being the next heirs became the absolute owners and as such they possessed the suit land under Khata Nos.31, 73 and 74 as per the record of 4th settlement. The suit land under Khata Nos. 26, 27, 29, 30, 78 and 79/16 as per the record of 4th settlement was the property of Daman alone. So, these plaintiffs claim to have succeeded to the same and are in actual possession. The suit land under Khata No. 78 and 79/16 are said to be the Jankiri land granted to Daman Kuanr as he was performing the worship of the village Deity. Later on Daman was conferred with the rayati status for half of the land. It is claimed by the plaintiffs that after the death of Daman, they are worshiping the Deity and rendering the service. The defendant no. 1 is said to be a stranger to the family. It is said that during his childhood days, he came to the village and was residing with his natural parents in a place with the permission of the ancestors of the plaintiffs. He is said to be the only son of his natural parents. It is stated that they managed to record some lands in a mutation proceeding falsely advancing a claim that the defendant is the adopted son of Daman. This move is said to be only to grab the property. So, the suit has been filed. The defendant no. 1 contested the suit by filing the written statement. He described a different genealogy. According to him, one Palau had son a Kiaban who had two sons namely Chaitanya and Ganesh. Ganesh is said to be issueless and dead. Chaitanya is to have been survived by three sons namely, Trilochan, Nilambar and Kepa. According to him, Jage had two sons namely, Suban and Daman. Suban had three wives. Daman died at last during the suit. Daman had his widow Kansala and a daughter namely, Rukmani. Plaintiffs are admitted to be Daman's daughter's son and daughter. Here he claims to have been adopted by Daman and Kansala and as such being their adopted son is the brother of Daman's daughter Rukmani. It is stated that he being the son of Daman and Kansala succeeded to the suit land. Possession of the plaintiffs over any portion of the suit land is denied. It is his further case that in the abolition proceeding the Jhankir land was settled in his favour as he is performing the seva puja Deity. Thus, he claims his absolute interest over the suit land.