JENA MUNDA Vs. DUKHAN PAHAN

JUDGEMENT

(1.) This second appeal is by defendant 2 from a judgment of reversal decreeing the suit. This suit was for declaration of title to and recovery of possession over the holding of one Sukra Mund deceased, comprising Khata No. 44 of village Jaipur in the Ranchi district of Chota Nagpur. The material facts may be briefly stated as follows. Some time after the death of Sukra Munda, the present appellant Jena Munda brought a proceeding before the Deputy Commissioner under Section 139 (5), Chota Nagpur Tenancy Act, asking to be restored to possession of Sukra's holding on the ground that he was Sukra's ghardamad and as such, in the absence of any surviving son entitled to succeed to the property. He had come into possession after Sukra's death, but had been dispossessed by the landlord who had made settlements of part of the holding with, the present plaintiff, brother of Sukra, and the rest with the present defendant 3, on the assumption that Sukra had died heirless. He impleaded, besides the landlord, both the present plaintiff and defendant 3, before the learned Deputy Commissioner. The latter by his order, dated 23-7-1941, held that Jena was a ghardamad and entitled to the property, and ordered restoration of possession, which was duly restored on 11-2-1942. The proceedings before the Deputy Commissioner were contested by the landlord, and the Deputy Commissioner observed that Sukra's brother, the present plaintiff, did not appear before him and was taking no interest. Thereafter the present suit was tiled, impleaing the landlord as defendant No. 1, Jena as defendant 2, and the other settlement holder as defendant 8. The plaintiff's case was that Jena was not a ghardamad, that he (the plaintiff) had taken settlement from the landlord because he was not then aware of the legal position, and that neither the settlement with him nor that with defendant 3, had been effective. The suit was contested only by the present appellant though both the landlord and defendant 3, also filed, written statements.

(2.) The learned Munsif held that Jena was not a, ghardamad or entitled to succeed as such, his main reason being that according to the custom, to become a ghardamad a man must be taken into his father-in-law's house for two years.as a labourer, and thru having proved satisfactory must be married to the daughter, no son being then living, and must be formally adopted as ghardamad and give up all claim to his lands in his own village. Even then he would get only such lands as might be allotted to him by the village panches. But while the appellant Jena satisfied some of these conditions he did not satisfy all, since it became apparent from the evidence that Jena was taken into the household some 18 years previously when a boy and was married some years later to Sukra's daughter while Sukra had a son Mahadeo still living. This Mahadeo died only 8 or 10 years before the suit. Despite this finding, the Munsif dismissed the suit for defect of parties, holding that the plaintiff should have impleaded two sons of another brother of Sukra's who had died leaving two sons who had gone away to Assam. The learned Additional Judicial Commissioner in appeal agreed with the Munsif's view that Jena had no rights as a ghardamad, and, holding that the suit should not fail because the two sons of Sukra's deceased brother had not been impleaded, he decreed it.

(3.) Two legal points have been urged before us. First, that Sec. 258, Chota Nagpur Tenancy Act, was a bar to the suit, as it was not shown that the proceedings before the Deputy Commissioner were vitiated either by fraud or want of jurisdiction. Secondly, that the Judicial Commissioner was wrong in holding that the suit was not bad for defect of parties. For reasons which will presently appear it is unnecessary to pronounce any opinion upon either of these points.