Gopal Das and Others vs Barnwas Das

M.Y. Eqbal, J.—This appeal is directed against the judgment dated 12.12.2005 passed by Subordinate Judge-II-cum-Land Acquisition Judge, Dumka in Land Acquisition Case No.24/2001-02 in a reference u/s 30 of the Land Acquisition Act whereby he has decided the reference in favour of the respondent holding that the respondent has inherited the land in question and is entitled to receive compensation.

The facts of the case lie in a narrow compass:

The land in question comprised within Khata Nos. 402, 404 and 409 in village Maharo appertaining to Jamabandi No.28 owned by one Baijo Das in whose name it has been recorded in the Gantzer settlement. The entire land was acquired under the provisions of Land Acquisition Act and award was prepared by the District Land Acquisition officer in favour of the respondent in Land Acquisition Case No. 24/2001-02. The respondent Barnwas Das sought reference u/s 30 of the Land Acquisition Act alleging that he being the adopted son is entitled to the compensation amount. Consequently, the dispute was refereed by the Land Acquisition officer to the Land Acquisition Judge u/s 30 of the Land Acquisition Act.

The case of the respondent is that Baijo Das had taken a second wife, namely Ratani Pujharin and was the natural mother of the respondent Barnwas Das who was born through her husband Anupa Pujhar. According to the respondent, late Baijo Das executed a registered deed of adoption in the year 1946 and, therefore, on the basis of of the deed of adoption, he became adopted son of Baijo Das and was entitled to get compensation. On the other hand, appellant-first party claimed that recorded tenant Baijo Das had a son Bideshi Das who had also two sons namely Jiyadhar Das and Kartik Das. The appellants claimed themselves to be the sons and heirs of late Jiyadhar Das and Kartik Das. Further case of the appellants is that during the life time of Bideshi Das, Baijo Das converted his religion from Hinduism to Christianities for keeping a concubine namely Ratani Pujharin who had a son-Barnbas Pujahar. The appellants'' further case was that Ratani Pujharin being the concubine influenced Baijo Das, the ancestor of the petitioners, and on her influence, he executed a document in the year 1946 alleging that Barnwas Pujahar is his adopted son and is entitled to inherit the suit property. On the basis of the pleadings of the parties, the Land Acquisition Judge framed the following issues for consideration:

I) Whether the case is maintainable in the present form?

II) Whether the O.P. has exclusively got right, title, interest and possession over the lands in proceeding/

III) Whether the 1st Parties are entitled to receive the entire compensation amount as awarded by the Land Acquisition Officer, Dumka in the said reference/

IV) To what other relief or reliefs which the either party is entitled?

While deciding Issue No.(II), the Court recorded a finding that there is no documentary evidence in support of the case of the appellant that Baijo Das had a son Bideshi Das. The Court below relied upon the alleged deed of adoption (Ext. C) and on the basis of that document held that the respondent is entitled to inherit the suit land.

Mr. P.K. Prasad, learned Counsel appearing for the appellants, assailed the impugned judgment as being illegal and wholly without jurisdiction. The learned Counsel put heavy reliance on the evidence of D.W. 3 Barnwas Das (respondent) and submitted that D.W. 3 in para 3 to 5 has deposed that his mother Ratani Pujharin was married to Baijo Das according to Hindu rites in 1946 but Baijo Das had no issue from his first wife. In the first week of April 1946, Baijo Das adopted him and executed a Hibbanama dated 8.4.1946. This witness further admitted that his natural father Anupa Pujhar died in 1960-62 i.e. his father was alive at the time of alleged adoption. He further admitted that in his Service Book, pension papers, ration card, voter list,'' his father''s name is mentioned as Anupa Pujhar. He further admitted in para.41 that Bideshi Das @ Baijo Das had one son namely Jiyadhar Das. The learned Counsel further submitted that deed of adoption (Ext. C) is a will and since it contains a recital that on the death of Baijo Das his entire properties shall be inherited by the respondent, no probate having been granted, the respondent cannot lay claim of title over the same in view of Section 212 of the Indian Succession Act. Besides, since Ext. C has not been attested by two witnesses, therefore, it will be void u/s 123 of the Transfer of Property Act. However, on the basis of recitals, if Ext. C is considered to be a gift, then it will also be void and nullity in view of Section 27 of the Santhal Pargana Tenacy Regulation, 1872. The respondent in his evidence has himself admitted that his natural father Anupa Pujhar died in 1960-62, therefore, in 1946 his natural father was alive. Under the Hindu Law, during the lifetime of father, mother is not competent to give the son in adoption and there is no evidence on record that Anupa Pujhar was incapable of giving his son in adoption and, therefore, the alleged story of adoption is itself illegal. The learned Counsel has further submitted that the respondent as D.W. 3 has himself admitted that Baijo Das @ Bideshi Das had one son namely Jiyadhar Das, which is contrary to the case of the respondent that Baijo Das had no son and, therefore, he adopted the respondent (Barnwas Das) by a deed of adoption.

Without going into the submissions made by the learned Counsel appearing for the appellants, the questions which need consideration by the court are that firstly whether the respondent inherited the property as a legally adopted son and, secondly, whether the appellants have been able to prove their genealogy to establish the relationship with the original land owner. In this appeal the appellants, inter alia, challenged the two orders dated 26.7.2005 and 11.8.2005 by which the appellants'' prayer for calling the entire records of land acquisition case and also to admit the registered deed of mortgage have been rejected. It appears that these documents could have been given sufficient light to determine the questions involved in the reference case. On the question of so-called adoption deed (Ext. C), the Court has not come to a conclusive finding with regard to the nature of document and the right of the respondent accrued thereon. The Court has also not decided conclusively as to which of the party is entitled to or coining in possession of the land in question. In absence of conclusive determination and adjudication of these important questions, the impugned judgment of the reference court cannot be sustained in law. The matter, therefore, needs to be remanded back to the Court below to decide the question afresh after considering the registered mortgage deed admitting it into evidence.

For the reasons aforesaid, this appeal is allowed and the judgment and decree passed by the Court below is set aside. The matter is remanded back to the Court below for deciding all the issues afresh after considering all the evidences adduced by the parties.