DHANAI MAJHI Vs. RANGA MAJHI

JUDGEMENT

(1.) This appeal has been preferred against the judgment and decree dated 20.9.1986 and 30.9.1986 respectively in Title Suit No. 51 of 1984 passed by the then 2nd Additional Subordinate Judge, Chaibasa dismissing the plaintiffs -appellants' suit for declaration of title and confirmation of possession and also for recovery of possession.

(2.) The case of the plaintiffs is that their father Bhuma Manjhi had a brother Batol Majhi @ Bajol Majhi, and this Batol Majhi had only one daughter namely Kandri Majhian who was married with Lusa Majhi, defendant No. 1 Kandri Majhian died leaving behind four sons who are defendant Nos. 2 to 5 and one married daughter Jhuri Majhian, defendant No. 6. The plaintiffs are the sons of Bhuma Majhi. According to the plaintiffs, the lands in Khata Nos. 4 and 5 of Mouza Pandugiti were the ancestral property of the father of the plaintiffs and their uncle Batol Majhi. The father of die plaintiffs became separate long before the last settlement of 1961 and the lands of the plaintiffs' father were recorded in the names of the plaintiffs jointly under Khata Nos. 39, 48 and 47. These lands are shown in Schedule C, D and E of the plaint. According to the plaintiffs, these are also the ancestral property of both the brothers as mentioned above and they were recorded in the names of the plaintiffs alone after the death of their father and their uncle having no male issue, Khata No. 49 plot No. 352 is a Bandh while plot No. 353 is a Talab and those have been recorded jointly in the name of the plaintiff and Kandri Majian, daughter of Batol Majhi. According to the plaintiffs, these two plots are also in the exclusive possession of the plaintiffs to the exclusion of the Kadri Majhian and she never enjoyed or possessed those two plots. As per the plaint case, father of Kadri Majhian, Batol Majhi died before 1961 and parties being Santhals and their succession being according to the customs married daughters are never allowed to succeed or inherit the properties of their father and those properties devolved on the agnates alone. Kandri Majhian married long before the last survey settlement of 1961 and during the settlement operation, Kadri Majhian requested the plaintiffs to allow her to enjoy the usufruct of Schedule -B properties which belonged to her father and she gave an undertaking that the plaintiffs would take possession over the land in Schedule -B soon after her death. Only out of sympathy and affection, Kadri Majhian was allowed to possess Schedule -B lands, regarding Schedule -B lands le. plot No. 353, which is a Talab, which was recorded in the name of Kandri Majhian, daughter of Batol Majhi. Although, such entry was there in the. survey settlement but it did not create any title to Kandri Majhian and those were being possessed by Kandri Majhian only on a permission being given to her by the plaintiffs. After the death of Batol Majhi. according to the plaintiffs, those Schedule -B and F lands had reverted to the plaintiffs alone to the exclusion of Kadri Majhian or her heirs. Kandri Majhian died in the year 1981. During her Shradhisa ceremony, the defendants and other villagers requested the plaintiffs to allow them to enjoy the Schedule -B lands for three years as the defendants had to spend much in the Shradh ceremony of their mother. The plaintiffs acceded to the request of the defendants and the defendants were allowed to possess those lands on permission alone. But they failed to return back the lands and were asserting title over the Schedule -B and Schedule -F lands. The present suit has been filed for declaration of right, title and interest over Schedule B land and for recovery of possession in. respect of Schedule -B lands and for confirmation of possession in respect of Schedule -F lands.

(3.) Joint written statement have been filed by the defendant Nos. 1 to 6 and has been contended, inter alia, that the suit as framed is not maintainable, that the same is barred by limitation, that the same is bad for misjoinder for of cause of action etc. etc. According to the defendants, although the parties are Santhals by caste but they have been Hindaised long back sufficiently and they are governed by Hindu Law of inheritance. The geneology given by the plaintiffs is admitted. The land in Khata Nos. 4 and 5 described in Schedule -B of the plaint is asserted not to be the ancestral property of the father of the plaintiffs. The said property, according to the defendants, is the exclusive property of Kandri Majhian, daughter of Batol Majhi and the plaintiffs' father Bhuma Majhi or the plaintiffs have got no right or title over that property. The said land during the days of Abdul settlement in the year 1927 was recorded in the name of Kandri Majhian and in 1961 it was also recorded under Khata No. 36 in the sole name of Kandri Majhian during survey settlement operation. As regard Schedule -F property, it has been contended that the suit properties is the joint property of Bhuma Majhi and Sangi Majhian, the widow of Batol Majhi and it was recorded as such under Khata No. 26 of the Abdul Settlement in the year 1961, in the name of Kandri Majhian and the plaintiffs having been half and half share. The recorded tenants are in joint possession of the tank and that they are possessing the same jointly having usufructs being divided as per shares. The plaintiffs' father and their uncle were separated long ago before the Survey Settlement operation of 1926 -27. Batol Majhi died even prior to the Abdul Settlement. His property was exclusively inherited by his widow and daughter and as such Schedule -E property was recorded in the name of his widow. As regards Schedule -F property, the same was jointly recorded as the same was a tank which could not have been divided and as such in the present survey settlement also the same was recorded jointly in the names of Kandri Majhian and the plaintiffs. As per the defendants, they are possessing the lands as of their right and the plaintiffs can have no right over those suit properties. They have specifically mentioned that the Santhals of the district of Singhbhum had been sufficiently Hinduised long before and the matter of inheritance and succession were being governed by the Hindu law and not by any special racial custom. Even their religious ceremonies are also like that of the Hindus. The daughters and widows always inherited the property of the father and the husband as like Hindus and the female inheritors are never being excluded from succession. It has been totally denied by the defendants that either at the time of survey settlement in the year 1961 or after the death of Kandri Majhian, there was any settlement or permission of the plaintiffs as alleged being given from the side of the plaintiffs to the defendants in possession of the suit land. They have also asserted that they are in possession of the lands as per their own right and Schedule -F property being a tank was being possessed jointly by sharing the usufructs.