Manu Uraon and Others vs Abraham Uraon and Another

Agarwala, J.—The defendants-appellants, and the plaintiffs are the sons of Madra Uraon, plaintiffs being the sons by the second wife and the defendants being the sons by the first wife. The dispute relates to cadastral survey khata No. 66 which is equivalent to revisional survey khata No. 2. In the cadastral survey this khata stood recorded in the name of Madra Uraon.

The case of the plaintiffs was that their father partitioned his properties during his lifetime and allotted cadastral survey khata No. 67 to the defendants and retained for his own maintenance cadastral survey khata No. 66. In the revisional survey khata No. 2 was recorded in the joint names of the plaintiffs and the defendants.

The first Court held that although cadastral survey khata No. 67 may have been allotted to the defendants for the purpose of cultivation, there had been no partition by Madra Uraon in his life-time. The plaintiffs'' suit was accordingly dismissed.

The appellate Court has found that there was an actual partition as alleged by the plaintiffs, that is to say, that Madra Uraon allotted khata No. 67 to the defendants and retained khata No. 66 for his own maintenance. With regard to the question of their rights to khata No. 66 after the death of Madra Uraon, the learned subordinate Judge, who had decided the appeal, referred to Mr. S.C. Roy''s book on "The Oraons of Chota Nagpur," and by reference to that book found that there exists among the Oraons a custom that when a father has separated from one of his sons and retained a part of the property for his own maintenance, that property devolves on the son with whom he lived in his life-time.

This custom was not pleaded by the plaintiffs and the only evidence of it is contained in the passage in Mr. Roy''s book which is relied on by the subordinate Judge. Mr. Roy is, I am told, alive and therefore was available as a witness to this custom, if in fact there be such a custom. The plaintiffs neither called him as a witness nor gave any reason for not calling him and did not adduce any other evidence with regard to this custom which they have not pleaded in their plaint.

The learned subordinate Judge''s attention is in-vited to the decision in Tuni Oraon v. Leda Oraon AIR 1976 Pat. 374, in which Mullick J. observed:

I would invite the attention of the learned Judicial Commissioner to the observations of the Madras High Court in Vallabha v. Madusudanan (89) 12 Mad 495, to the effect that reference to works of history at the appellate stage is irregular and to be avoided.

By referring to Mr. Roy''s account of the history and social customs of the Oraon at the appellate stage the learned subordinate Judge has fallen into the error of finding a custom which was not pleaded on evidence which was not admissible and his decision must be set aside.

The decree of the Court below is accordingly reversed and that of the Munsif restored with the result that the plaintiff''s suit is dismissed. There will be no order for costs of this appeal as the respondents have not appeared.