SHANKAR MURMU Vs. R.2A. MILONI SOREN

JUDGEMENT

(1.) The case of the plaintiffs in short is that the parties are Santhal and in matter of inheritance, they are governed by their own customary law. It is said that Jote no. 46 of Mouza Raniganj stand recorded in the names of Sundar Murmu, S/o Dula Murmu, Kunwar Murmu and Kandan Murmu, S/o Karan Murmu and Keshav Murmu, S/o Arjun Murmu in the last settlement and the tenants were recorded in separate dakhal kiari over some plots as shown in the remarks column of the parcha. The land mentioned in schedule-A stand recorded in separate dakhal kiari of Sundar Murmu, who died leaving behind no issue. According to the plaintiffs, the common ancestor was one Fagu Murmu, who died leaving behind Dula, Karan and Arjun. Sundar Murmu was the son of Dula and defendants' ancestor are the sons of Karan Murmu and the plaintiffs' ancestor are sons of Arjun Murmu. Sundar Murmu died and Kandan and Kunwar, sons of Karan predeceased Sundar and as Sundar died leaving behind Keshav Murmu, his first cousin Keshav succeeded to the estate including the land in suit left by Sundar in preference to the descendants of Kandan and Kanwar. After the death of Keshav, Rasik Murmu succeeded to the estate and came in possession over the same. Sundar Murmu's brother Fagu died leaving behind a daughter Chabi Manjhian and on Sundar's death the said Chabi Manjhian was maintained by Keshav and thereafter by Rasik so long she was alive. It is further said that Rasik Murmu was in peaceful possession but in 1967, the defendants made a false station diary entry at Jamtara Police Station and a proceeding under Section 144 Cr.P.C. was started. In that proceeding, rule issued against the plaintiff was vacated, but it was made absolute against the present defendants. In the same year, the plaintiff grew paddy and it was ripe for harvest. The defendants formed a group and was making preparation to harvest the paddy by force. A proceeding under Section 145 Cr.P.C. was started and the Magistrate referred the matter to the civil court under Section 146 Cr.P.C. The court could not appreciate the case and opined that the defendants of this case were in possession. The further case of the plaintiffs is that if the court held that the defendants have also succeeded jointly with the farther of the plaintiffs as co-sharer, the plaintiffs are entitled to a moiety share over the same, whereas, the defendants jointly would be entitled to other half.

(2.) Against the above allegations, the defendants had filed a written statement stating therein that the plaintiffs have got no cause of action and the suit is barred by limitation. They admit that the land in suit stand recorded exclusively in the name of Sundar Murmu in the last survey settlement. According to the defendants, one Dula Murmu was the common ancestor who died leaving behind Fagu Murmu and Nimu Murmu as his two sons. Fagu Murmu's sons were Dula and Karan. Dula had two sons Fagu and Sundar. Karan died leaving behind two sons Kandan and Kunwar and the defendants are the heirs of Kandan and Kunwar. Nimu Murmu died leaving behind his son Arjun and Arjun's son was Keshav and Keshav's son was Rasik. According to the defendants, they are the nearest agnates of Sundar Murmu and being the nearest agnates Kunwar and Kandan succeeded the property of Sundar after his death. According to the defendants, the genealogy, given by the plaintiffs showing that Arjun was the son of Fagu, is not correct. Further case of the defendants was that Sundar Murmu's eldest brother Fagu Murmu predeceased him leaving behind his widow Nuni Manjhian and a daughter Chabi Manjhian. Sundar married Nuni Manjhian in Sangha and maintained Chabi Manjhian. The defendants ancestors maintained Chabi Manjhian and the defendants also maintained till her deaths. It is false to say that Kunwar and Kandan predeceased Sundar and in fact Keshav Murmu, father of Rasik, predeceased Sundar and Keshav is not the nearest agnate and, therefore, no question of succeeding the interest of Sundar does arise. The defendants paid rent and Rasik never cultivated the land of Sundar. In fact, Rasik wanted to harvest the paddy grown by the defendants, which resulted a proceeding under Section 145 Cr.P.C. and the civil court in Section 146 Cr.P.C. proceeding rightly decided the defendants possession over the suit land as the plaintiffs are not the nearest agnates. There is no question of partition as they have no right to claim the land of Sundar Murmu. It is said that the defendants have perfect title over the suit land by possessing for more than 12 years.

(3.) On the basis of above pleadings, the trial court framed 7 issues to decide the suit and after discussing the issues decreed the suit on contest in favour of the plaintiffs and held that Arjun- Karan and Dula are own brothers and their descendants are co-owners so far property of Sunder is concerned. The plaintiffs have definitely a title over Sundar's property, but it is doubtful whether plaintiffs can claim the entire property as claimed by them. It appears from Ext.-B that all the lands of Schedule-A have been recorded in the dakhal kiari of Sundar. Most of the lands possessed by him as Pradhan and the plaintiffs should get half and the defendants should get half i.e. Kandan and Kunwar's branch should get half jointly. Considering the facts and circumstances of the case, the suit was accordingly decreed. Aggrieved with this judgment, the defendants filed an appeal being Title Appeal No. 35/1975- 75/1985, which was decided by the 3 rd Additional District and Sessions Judge, Dumka vide judgment dated 03.05.1986 and the appellate court came to the finding that the respondents have failed to discharge the onus of proof and that is why the judgment of the trial court and the decree was set aside and the appeal was allowed by the appellate court. Aggrieved with this judgment, this Second Appeal has been filed.