DHANI 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.) ON the basis of the pleadings of the parties, following issues were framed: