DHANESHWARI DEVI Vs. KEDAR MAHTO

JUDGEMENT

(1.) THIS appeal has been preferred against the concurrent findings of both the courts below while the second Additional District Judge, Jamui, in Title Appeal no. 42 of 1988 has affirmed the judgment and decree passed by the Sub -Judge -ll, Jamui, in Title Suit no. 22 of 1985 (17 of 1.987) all through the plaintiff -appellants suit had been dismissed up to the appellate court.

(2.) THE admitted genealogy runs as follows. One Sewa Mahto was the original owner. He died leaving behind two sons Lalman Mahto and Chutar Mahto. There was partition between Lalman and Chutar and Lalman got half land of Khata no. 23. Chutar Mahto and his heirs had no concern with the land of Lalman because Lalman has got lands in plot no. 13 through Hukumnama. But for proper adjudication the heirs of Chutar had also been made parties in the suit. Lalman had two sons, namely, Niro and Jawahar. Jawahar died issueless. Niro had two sons, namely, Harkhu and Bhaglu. Harkhu also died issueless. Bhaglu had three sons and one wife. His wife Dhaneshwari is the plaintiff no. 1 while two sons Sitaram and Lutan are the plaintiff nos. 2 and 3. It was the case of the plaintiff that Bhaglu had a son Keshar but he died issueless, unmarried and at the minority. Jhapila @ Jhalia through whom the defendants were claiming have no relations with the family of the plaintiff and according to the defendants Jhalia @ Dhalia is the wife of Keshar Mahto and that Keshar Mahto was adopted by Jawahar during his life time as his son in the year 1960. and when Keshar Mahto became young he was married with Jhalia and after -wards in the year 1972/73 Jawahar Mahto died leaving his adopted son Keshar Mahto and Jhalia and wife of Jawahar Mahto died in his life time. So after the death of Jawahar Mahto Keshar Mahto came in possession of the entire property of Jawahar Mahto. Keshar Mahto also died issueless leaving behind his wife Jhalia Devi and when the plaintiff started to vex her, for payment of loan from the Cooperative Society, she on 23.6.1977 sold the suit land to defendant nos. 2 and 8 for Rs. 5,000/ - on a registered sale deed and so in the proceeding under Section 145 of the Code of Criminal Procedure possession was declared in favour of defendant nos. 2 and 8. The only point in issue was as to whether Keshar Mahto was adopted by Jawahar Mahto and if so whether Jhalia Mahto was the wife of Keshar Mahto and she had any right to sell the suit property. Evidence has been adduced regarding adoption from the side of the defendants and the trial court held that adoption could be proved. Such adoption was said to be proved not only on oral evidence but also in documents in which it could be revealed that the name of Keshar Mahto was mentioned as son of Jawahar Mahto, and it was further proved that Jhalia @ Dhalia was the wife of Keshar Mahto and on his death property of Keshar Mahto had devolved on her and she sold it for her personal necessity.

(3.) ON independent scrutiny, the appellate court held the same thing that adoption could be proved and that Jhalia Mahto was the wife of Keshar Mahto.