Judgment:
M.Y. Eqbal, J.
1. This Second Appeal is directed against the judgment and decree dated 08.4.1988 passed by Addl. Judicial Commissioner-IV, Ranchi in Title Appeal No. 26 of 1983, whereby he has reversed the judgment and decree dated 10.2.1983 passed by Additional Subordinate Judge, Ranchi and, decreed Title Suit No. 132 of 1978.
2. In terms of order dated 23.3.1995, this Second Appeal was admitted for hearing on the following substantial question of law: -
Whether the Lower Appellate Court has erred in law in holding that the plaintiffs being the agnatic heirs of Rashu Munda, have got valid title to the suit lands and in the facts and circumstances of the case, they were entitled to recover possession from the defendants, who were admittedly in possession
3. The plaintiffs filed Title Suit No. 132 of 178 for declaration of their title in respect of the suit land being Khata Nos. 5 and 148 situated at village Siyyankel, P.S. Khunti, District Ranchi. The case of the plaintiffs, in short, is that they are Munda by caste and are governed by their own customary law in the matter of succession and inheritance. The common ancestor of the parties was Pandu Munda who had three sons - Simon Munda, Rashu Munda and Patras Munda. The heirs of Simon Munda and Patras Munda are the plaintiffs, whereas the heir of Rashu Munda is defendant No. 1. Plaintiffs' case is that Rashu Munda had only one daughter, namely Karuna, who was married with Matias Purti alias Munda of village Bejiganwa. Defendant No. 1 is the son of Most. Karuna from Matias Purti. Rashu Munda died few years prior to revisional survey operation leaving behind Most. Karuna as his only daughter. After the death of Rashu Munda, the suit land was recorded in the name of his daughter Most. Karuna in the revisional survey record of rights. It was alleged that although the name of Most. Karuna was recorded in the records of rights, but the plaintiffs were cultivating the land and Karuna was being maintained by the ancestors of the plaintiffs. The ancestors of the plaintiffs alleged to have perfected their right, title and interest over the suit land. The plaintiffs' case is that after the death of Most. Karuna, the plaintiffs being the nearest agnatic relations of Rashu Munda, they acquired absolute right, title and interest over the suit land, inasmuch as under the custom, the daughters are excluded from inheritance.
4. Defendant No1, the son of Most. Karuna, contested the suit by filing written statement. The defendant's case is that the suit is barred by limitation, adverse possession and ouster and also under Section 34 of the Specific Relief Act. The defendant also pleaded that the suit is under valued and is not maintainable and is liable to be dismissed on the ground that a fixed declaratory Court fee was paid. According to the defendant, the married daughters are entitled to inherit the properties left by their fathers in Munda community. Defendant's further case is that Most. Karuna was never married with Matias Munda. It is stated that Matias Munda was a Dhangar at the place of Rashu Munda and defendant was born from Most. Karuna with sexual relationship of Matias. The defendant's further case is that Most. Karuna remained in possession of the suit land and her name was recorded in the revisional survey record of rights which was published in 1930. The defendant's further case is that the ancestors of the plaintiff laid false claim during revisional survey operation and their claim was disallowed by the revenue authorities in 1930. The plaintiffs also tried to threaten to cut the paddy which resulted in proceedings under Sections 144 and 145 Cr.P.C. and in that proceeding, possession of Most. Karuna was declared. The defendant's case is that Most. Karuna had acquired right, title and interest on her own and also by adverse possession. After her death, the defendant has inherited the entire property left by her and he is coming in exclusive possession of the same.
5. The trial Court had framed as many as the following eight issues: -
1. Is the suit as framed maintainable?
2. Have the plaintiffs got valid cause of action or right to sue?
3. Is the suit barred by law of limitation, principles of estoppel, waiver and acquiescence?
4. Whether the suit is properly valued and the court fee paid sufficient?
5. Is the suit barred under Section 34 of the Specific Relief Act?
6. Whether the suit is bad due to misjoinder of causes of action and multiferiousness?
7. Whether the plaintiffs have got right, title and interest over the suit land and they are legally entitled to get a decree for declaration of their right, title and interest over the suit land and they are also entitled for recovery of possession over the aforesaid land?
8. To what other relief, or reliefs, if any, are the plaintiffs entitled?
6. While deciding Issue No. 7, the trial Court after discussing all the documentary evidence, recorded a finding that Most. Karuna acquired valid right, title and interest by remaining in possession as heir of her father since 1929. The trial Court also discussed the oral evidence adduced by the parties and recorded a finding that the plaintiffs hopelessly failed to prove their title and possession over the suit land for more than 60 years. The trial Court further found that the plaintiffs are not entitled to get a decree for declaration of their right, title and interest over the suit land.
7. On the other hand, the appellate Court firstly recorded a finding on the basis of documentary evidence that the three sons of Pandu Munda were separate and their properties were recorded in their separate possession. Most. Karuna was the daughter of Rashu Munda. Rashu had no male issue. At the time of revisional survey operation, Rashu Munda was dead but his daughter Karuna was alive and was in possession of the properties of her father. The appellate Court further found that the name of Most. Karuna who was in possession of the suit properties, was recorded in survey record of right, although plaintiffrespondents had raised objection before the Assistant Settlement Officer, but their objections were rejected. However, the appellate Court proceeded that since Most. Karuna was the married daughter of Rashu Munda, she was not entitled to inherit the properties of her father and to remain in possession even during her life time. The appellate Court further held that even if Most. Karuna was considered unmarried because of her relation with Matias Munda not being on the basis of her valid marriage, according to the custom of Munda tribe she was entitled to remain in possession of her father's properties only during her life time and on her death, the properties of her father in absence of male issue would revert back to the agnatic heirs of Rashu Munda. On the aforesaid finding, the appellate Court reversed the judgment holding that the plaintiffs have acquired valid right, title and interest over the suit properties. The appellate Court further reversed the finding of the trial Court and held that the defendants have not acquired title by adverse possession and the suit was not barred by limitation.
8. From perusal of plaint, it appears that the plaintiffs-respondents filed a suit only for declaration of their title over the suit land. In the plaint, it was pleaded that during the revisional survey operation, the suit land was recorded in the name of Most. Karuna, daughter of Rashu Munda. It was also pleaded that although the record of rights was prepared in the name of Most. Karuna but the plaintiffs' ancestors were cultivating the land and after the death of their ancestors, the plaintiffs came in possession of the suit land in their own right, title and interest. After the death of Most. Karuna, who died recently, the plaintiffs acquired absolute right, title and interest in the suit land. In a nutshell, therefore, the plaintiffs filed a declaratory suit for declaration of their title, alleging that they have been coming in possession of the suit land since the death of Rashu Munda. The plaintiffs have suppressed the fact, which has been disclosed in the written statement that during the revisional survey operation Most. Karuna was in possession of the entire suit property and when the suit properties were recorded exclusively in the name of Most. Karuna and a final record of rights was published in the year 1930, the ancestors of the plaintiffs put forward their claim, which was disallowed by the Revenue Authorities in 1929-30. The defendant disclosed that in the year 1931 the ancestors of the plaintiffs interfered with peaceful possession of Most. Karuna over the suit property and a proceeding under Section 144 Cr.P.C. was started being M.P. Case No. 19/31 and in the said proceeding the ancestors of the plaintiffs undertook not to interfere with the right, title, interest and possession of Most. Karuna, who continued in possession in 1958 and thereafter the defendant inherited the properties of his mother and continued in exclusive possession.
9. The trial Court recorded a finding that the suit property remained in possession of Most. Karuna and after death of Most. Karuna her son, the defendant, since more than 60 years. From the documentary evidence, which has been exhibited from the side of the defendant, it is evident that before vesting of the estate under Bihar Land Reforms Act, rent receipts were issued by the Ex-landlord in the name of Most. Karuna and after her death in the name of defendant. It further appears that after vesting the rent receipts were issued by the State of Bihar. Ext.F/1 is the certified copy of Tanaza. From perusal of said document, it is evidently clear that the Assistant Settlement Officer, on the objection filed by the plaintiffs' ancestors under Section 87 of Chotanagpur Tenancy Act in Tanaza case initiated in 1929, the objection was rejected in 1929 itself. As noticed above, in 1931 the ancestors of the plaintiffs tried to interfere with the possession of Most. Karuna over the suit property, which was ultimately compromised and the ancestors of the plaintiffs undertook not to interfere with the title and possession of Most.Karuna.
10. Chapter XII of Chotanagpur Tenancy Act deals with the procedure of preparation of records of rights and settlement of rents. Section 80 confers power to the State Government to make an order directing a survey and preparation of record of rights. Section 81 prescribes the particulars to be recorded in the record of rights. Section 83 provides that after survey operation a draft record of rights is to be prepared and published by the Revenue Officer. Sub-section (2) of Section 83 provides that if objections were raised to the draft publication of records of right, such objection shall be considered by the Revenue Officer and thereafter record of rights shall be finally published. Section 84 gives a presumption as to the final publication and correctness of the record of rights. Section 84 reads as under:
84. Presumptions as to final publication and correctness of record of-rights. (1) In any suit or other proceedings in which a record-of-rights prepared and published under this Chapter or a duly certified copy thereof or extract therefrom is produced, such record-of-rights shall be presumed to have been finally published unless such publication is expressly denied and a certificate, signed by the Revenue Officer, or by the Deputy Commissioner of any district in which its local area, estate or tenure or part thereof to which the record-ofrights relates is wholly or partly situate, stating that the record-of-rights has been finally published, under this Chapter shall be conclusive evidence of such publication.
(2) The State Government may, by notification, declare with regard to any specified area, that a record-of-rights has been finally published for every village included in that area; and such notification shall be conclusive evidence of such publication.
(3) Every entry in a record-of-rights so published shall be evidence of the matter referred to in such entry and shall be presumed to be correct until it is proved, by evidence, to be incorrect.
11. Section 87 of the Act provides for institution of suits before the Revenue Officer within three months from the date of certificate for the final publication of record of rights. Section 87 reads as under:
87. Institution of suit before Revenue Officer.- (1) In proceedings under this Chapter a suit may be instituted before a Revenue Officer, at any time within three months from the date of the certificate for the final publication of the record-ofrights under Sub-section (2) of Section 83 of the decision of any dispute regarding any entry which a Revenue Officer has made in, or any omission which he has made from the record except an entry of a fair rent settled under the provisions of Section 85 before the final publication of the record-of-rights whether such dispute be,-
(a) between the landlord and tenant, or
(b) between landlords of the same or of neighbouring estate, or
(c) between tenant and tenant, or
(d) as to whether the relationship of landlord and tenant exists, or
(e) as to whether land held rent-free is properly so held, or
(ee) as to any question relating to the title in and or to any interest in land as between the parties to the suit; or]
(f) as to any other matter; and the Revenue Officer shall hear and decide the dispute:
Provided that the Revenue Officer may, subject to such rules as may be made in this behalf under Section 264, transfer any particular case or class of cases to a competent Civil Court for trial:
Provided also that in any suit under this Section, the Revenue Officer shall not try any issue which has been, or is already, directly and substantially in issue between the same parties or between parties under whom they or any of them claim, in proceedings for the settlement of rent under this Chapter, where such issue has been tried and decided, or is already being tried, by a Revenue Officer under Section 86 in proceedings instituted after the final publication of the recordof- rights.
(2) An appeal shall lie, in the prescribed manner and to the prescribed Officer from decisions under Sub-section (1) and a second appeal to the High Court shall lie from any decision on appeal of such Officer as if such decision were an appellatedecree passed by the Judicial Commissioner under Chapter XVI.
12. Section 89 confers right to the person to file revision before the Revenue Officer duly empower by the State Government within 12 months from the date of entry in the draft record of rights or of any decision under Sections 83, 85 and 86 and revise the same. Section 89 reads as under:
89. Revision by Revenue Officer.-(1) Any Revenue officer specially empowered by the State Government in this behalf may on application or of his own motion within twelve months from the making of any entry in the draft record-of-rights or of any order or decision under Section 83, Section 85 or Section 86, revise the same, whether it was made by himself or by any other Revenue Officer but not so as to affect any order passed under Section 87 or any order passed in appeal under Section 85, Sub-section (4):
Provided that no such order or decision shall be so revised if a suit or an appeal in respect thereof is pending under Section 85, Sub-section (4) or Section 87 until reasonable notice has been given to the parties concerned to appear and be heard in the matter.(2) An appeal shall lie, in the prescribed manner and to them Prescribed Officer from any order passed under Sub-section (1).
13. As noticed above, after the revisional survey record of right was finally published in respect of the suit property in the name of Most. Karuna, the ancestors of the plaintiffs challenged the said entry by filing claim petition before the revenue authorities which was registered as Objection No. 5. The prayer made by the ancestors of the plaintiffs was for cancellation of the entry made in the name of Most. Karuna in respect of the suit land. Notices were issued by the Revenue authorities and after hearing the parties, the claim was rejected by passing a reasoned order on 16.6.1930. A certified copy of the order passed by the Settlement Officer is Ext.F/1. For better appreciation, the order dated 16.6.1930 is quoted herein below: -
Both parties are present. The allegation of the objector Suleman Pahan is that Mosamat Karoona is an unmarried woman and as such she is not entitled to the property left by her parents amongst whom the father died some 4 or 5 years ago while the mother only a year ago. According to the custom amongst the Mundas, a married daughter is not entitled to the property left by her parents and on failure of any male issue, it passes to the nearest relations. But in this particular case I find that Mosamat Karuna was not at all married according to the custom prevent amongst the mundas. She was taken away by some body of Bajgama and with him, she lived for some years and then has returned. She has been living with her parents for the last 15 or 16 years. Rashoo Munda, the father, was in separate mess and possession of the property with the objectors. The defendant now is a helpless widow. As the man who took her away and her parents all are dead. I do not think it would be fair to deprive her of the property left by her parents, specially when she was not married. An unmarried daughter has got a right over the property left by her parents when there are no male issue. In the circumstances, I agree with the khanapuri officer in his finding and direct that the Khewat prepared in her name should stand.
14. There is nothing on the record to show that the aforesaid order was ever challenged by ancestors of the plaintiffs and the same attained its finality. Most. Karuna continued possession of the land. It is also an admitted fact that in the year 1931, the ancestors of the plaintiffs tried to interfere with the possession of Most. Karuna which led to a proceedings under Section 144/145 Cr.P.C. and in the said proceedings, the ancestors of the plaintiffs undertook not to interfere with the right, title, interest and possession of Most. Karuna who continued possession till 1958 and thereafter, the defendantsrespondents being the heirs of Most. Karuna, have been continuing in possession of the suit property.
15. In the aforesaid admitted facts and evidence on record, a question that falls for consideration is as to whether a suit for mere declaration of title over the suit land is maintainable. If maintainable, whether the same is hopelessly barred by limitation and adverse possession?
16. From the facts discussed hereinabove in the preceding paragraphs, I have no hesitation in holding that the suit is not maintainable and it is barred by limitation, adverse possession and ouster. I further agree with the view of the trial Court that the defendants-respondents have perfected their right, title and interest over the suit land and the suit is barred also by principle of estoppel, waiver and acquiescence.
17. One more interesting question that needs to be considered is as to whether in the facts of the case, the customary law as pleaded by the plaintiffs is still applicable. Before discussing the said question, I would like to refer some of the provisions of Chotanagpur Tenancy Act. In order to find out the status of the parties in holding the land, term 'raiyat' has been defined in Section 6 of the Act which reads as under: -
6. Meaning of 'raiyat'.-(l) 'Raiyat' means primarily a person who has acquired a right to hold and for the purpose of cultivating it by himself or by members of his family, or by hired servants or with the aid of partners; and includes the successor-in-interest of persons who have acquired such a right, but does not include a Mundari-khunt-kattidar. Explanation.-Where a tenant of land has the right to bring it under cultivation, he shall be deemed to have acquired a right to hold it for the purpose of cultivation, notwithstanding that he uses it for the purpose of gathering the produce of it or of grazing cattle on it.
(2) A person shall not be deemed to be a raiyat unless he holds land either immediately under a proprietor or immediately under a tenure-holder or immediately under a Mundari-khunt-kattidar.
(3) In determining whether a tenant is a tenure-holder or raiyat, the Court shall have regard to,-
(a) local custom, and
(b) the purpose for which the right of tenancy was originally acquired.
18. Section 7 defines the word 'raiyat having khun-kanti rights' which reads as under: -
7. Meaning of 'raiyat having khunt-katti rights'. (1) 'Raiyat having khunti-katti rights' means a raiyat in occupation of, or having any subsisting title to land reclaimed from jungle by the original founders of the village or their descendants in the male line, when such raiyat is a member of family which founded the village or a descendant in the male line of any member of such family;
Provided that no raiyat shall be deemed to have khuntkatti rights in any land unless he and all his predecessors-intitle have held such land or obtained a title thereby virtue of inheritance from the original founders of the village.(2) Nothing in this Act shall prejudicially affect the rights of any person who has lawfully acquired a title to a khunt- kattidari tenancy before the commencement this Act.
19. Section 8, which is also very important, defines the word 'Mundari-khunt-kattidari' which reads as under: -
8. Meaning of Mundari-khunt-kattidari - Mundari-khuntkattidari means a Mundari, who has acquired a right to hold jungle land for the purpose of bringing suitable portions thereof under cultivation by himself or by male members of his family, and includes,-
(a) the heir male in the male tine of any such Mundari when they are in possession of such land or have any subsisting title thereto, and
(b) as regards any portions of such land which has remained continuously in the possession of any such Mundari and his descendants in the male line, such descendants.
20. It is not the case of the plaintiffs that their ancestors were Mundari-khunt-kattidari i.e. they acquired the right to hold jungle land for the purpose of bringing suitable portions thereof under cultivation by himself or by male members of his family. It is also not the case of the plaintiffs that their ancestors were a raiyat having subsisting title to the land reclaimed by them from jungle or the founder of the village or their descendants in the male line. The status of khunt-kattidar is derived from the original founder of the village. But raiyat having khuntkati rights need not be mundaris . There is a distinction between Mundari khuntkatidar and raiyat having khuntkati right.
21. It transpires from the rent receipts issued by the Ex-landlord (Exts.A-series) that one Thakur Mahendra Nath Shahdeo was the landlord of Jaria Estate and he used to collect rent from the ancestors of the parties. Said Thakur Mahendra Nath Shahdeo has also been recorded as landlord in the record of right. It is, therefore, evident that the parties were in possession of the land not as a Mundari-khuntkattidari. It is also evident that before revisional survey, the ancestors of the plaintiffs separated in mess and also in possession of respective shares of the property and the suit land fell in the share of Rashu Munda, father of Most. Karuna. During the revisional survey, the name of Most. Karuna was entered in the finally published revisional survey record of right after rejecting the claim of the ancestors of the plaintiffs.
22. Admittedly during revisional survey the name of Most. Karuna being the daughter of Rashu Munda was enter in the record of right, which was finally published after rejecting the objection of the ancestors of the plaintiffs. Most. Karuna being the female heir was recognized as raiyat by entering her name in the record of right which was subsequently accepted by the ancestors of the plaintiffs in Sections 144/145 proceeding in the year 1931. In the aforesaid premises the status of Most. Karuna duly entered in the finally published record of right can not be altered after 58 years by filing suit in 1978 and further the right of Most Karuna or her heirs cannot be taken away by applying the custom that only male descendant will inherit the land left by their ancestors. The provisions of Sections 7 and 8 of the Chotangpur Tenancy Act shall have no application in the instant case.
23. Besides the above if the custom alleged to have been prevalent is strictly made applicable in the facts of the present case, it will amount to serious violation of constitutional right of livelihood of a female, whose right was recognized during revisional survey of 1928 and acquired the status of a recorded raiyat in respect of the suit land.
24. Having regard to the entire facts and circumstances of the case and the law discussed herein above, I have no hesitation in holding that the suit filed by the plaintiffs-respondents is not maintainable and is barred by limitation and adverse possession.
25. For the reasons aforesaid, this appeal is allowed and the judgment and decree passed by the Appellate Court is set aside. Consequently, the judgment and decree passed by the trial Court is restored.