JUDGMENT
M.Y. Eqbal, J.
1. This appeal by defendant No. 1 appellant is against the judgment of affirmance. Plaintiff’s suit for declaration of title and confirmation of possession over the suit property has been decreed by the Munsif. Gumla in forms of judgment and docree dated 6th March, 1986 in Title Suit No. 26/83 and the same was affirmed by the 1st Addl. District Judge, Gumla in Title Appeal No. 16/86.
2. The facts of the case lie in a narrow compass: One Fagu Oraon was the common ancestor of the parties. He had four sons, Jitia, Ghusu Jitu and Sukra. Ghusu died issueless. Jitia had no male issue. Defendant No. 1,Chamin Oraoin is the daughter of Jitia from the first wife Dluitni. Jitu had four sons, Ghashi, Bana,Chanda and Mirsai. Chanda died issueless. Ghashi Birsai and Bana are defendant nos. 2,3 and 4. Sukra, son of Fagu had one son, Timru. Timru has two sons, Sukra who is the plaintiff and Ghusu who is the proform a defendant No. 5.
3. Plaintiffs’ case is that Jitu son of Fagu had no male issue whereas Sukra died leaving behind his minor son, Timru. After the death of Sukra his wife re-married and, thereafter, Timru became orphan having no one to look after him. Timru was, therefore, adopted by Jitia who had no male issue. The suit properly was acquired by Jitia. After his death. Timru being the only adopted son, inherited the suit property. After Timru died, both the plaintiff and defendant No. 1 have been coming in possession of the suit property.
4. The case of defendant No. 1, on the other hand, is that Timru was not adopted by Jitia, rather, after the death of Jitia his widow Bhutni, by a registered deed of gift dated 11.11.1966, gifted the suit land to her son-in-law, Sepia (husband of Chamin). Sepla was also adopted as Ghardamad.
5. The learned trial court, after considering the entire evidence, both oral and documentary, recorded a finding that Timru was adopted by Jitia and he being the adopted son, inherited the suit land and after Timru the plaintiff and defendant No. 5 inherited the suit land and exercised all rights, title, interest and possession at all material time. For better appreciation paragraphs 15,16 and 18 of the trial court judgment is worth to be quoted which roads as under:
15. Issue No. VI: Since the plaintiff is claiming the suit limits through his deceased father, Timru Oraon who was allegedly adopted by the deceased, Jitia the owner and proprietor of the lands in question, therefore, this issue is most important for the purpose of deciding the case and accordingly it has been taken up first. The statements made in paras 2,3,4,5 and 6 stand admitted as per written statement filed on behalf of the contesting defendant No. 1 and the other non contesting defendant. So the relationship between the parties stands proved. The plaintiff is non else but belonging to the same family and the cousin grand non of Jitia Union. According to the custom of the onions community only the agnate can be adopted with the consent of other Bhaiyads and the village pitches.
16. The plaintiff has examined as many as 13 witness in support of his case. PW1 Emanual Tirkey is a formal witness. PW2, Telanga Bhagat, PW 3, Samel Oraon, PW4, Patua Oraon, PW5, Bhiju Oraon, PW6, Joseph PW7, Dharnm Mahli, PW 8, Suba Mahto, PW9, Sohra Oraon, PW10 Lukas Oraon, PW11, Gandur Oraon, PW11, Budhu Oraon and PW13, Sukra Oraon, the plaintiff himself haw given a stereo type statement that Jitia Oraon has no male issue rather he had only two daughters, namely, Chamin Orain, defendant No. 1 and Domani Orain from two wives namely, Madari Orain and Butani Orain. They have also said that both daughters were married by him and after the marriage both daughters went to their respective sasurai. They have further said tha Sukra Onion, the brother of Jitia Oraon dial in the childhood of Timru Oraon, father of the plaintiff, Sukrta Oraon. They have further said that Timru Oraon was adopted as son by Jitia Oraon and he was brought up by the said Jitia Oraon and both persons started to live together like father and son. They have also said that after the death of Jitia Oraon and Timru the plaintiff and the proforma defendant No. 5 have been cultivating the lands of Jitia Oraon. In the cross examination PW1 has said that the plaintiff and the proforma defendant No. 5 lives in the house of Timlru and they cultivate the lands of Timru Oman. This statement is a truthful and natural statement because all the persons plaintiff and the defendants come from the same family and they had no separate house so they are naturally living in the name house He has further said at the time of adoption Timru was 6 or 7 years old. PW 3 has also said in his cross examination that at the time of adoption Timru was aged about 5 years old. PW4 has said that Jatin Oman had no adopted any ghardamad. PW 5 has also said that Jitia Oraon had not adopted any ghardamad. PW 6 and 7 have not been cross examined on the point of adoption. PW 9 has also not been cross examined on the point of adoption. PW 10 is the ex Muikhia of the Asani Newatoli Panchayat and he has also not been challenged about his statement regarding the living of Jitia Oraon and timru Oraon in one house. PW11 has said that Timru was a child at the time of the death of his fat her, Sukra Oraon and when he was adopted by Jitia Oraon. PW 12 has also said that Timru was a child when his father died. PW 13, the plaintiff has also corroborated his statement in the cross examination as made out in his examination in chief.
18. Issue No. VII: The definite case of the contesting defendant is that Sepla Oraon the deceased husband of the contesting defendant,’ Chamin Orain was adopted as ghardamad by Jitia Oraon, hence there was no occasion to adopt Timru Oraon as son. In this contect the defendant has also examined 7 witnesses. DW1, Aswnni Kumar Sinha, DW2, Gaya Dutta Pandey and DW 7, Deocharan Gope are the formal witnesses. The recitals o the deed of gift ext. A also shows that Sepla Oraon was adopted us ghardnmadd in the life time of Jitia Oraon and his marriage with his daughter, namely, Ghamin, Oraon, the contesting defendant, was solemnized in the life time of the said Jhitia Oraon. DW 3, Sepla Onion, DW4, Konia Oraon, DW5, Lohru Oraon, DW6, Ghami Oraon the defendant herself have said that about 30 years ago Butni Oraon and Madani Oraon both widows of Jitia Oraon, Lundri, Lohra and Luthra went to village Pasanga in the house of Gausa oraon and Butni Orain gave a proposal that she had no son so she wants his son as ghardamad. They have further said that the proposal was accepted by Gansa Oraon and his wife Jatia Oraon and accordingly Sepla Oraon was brought to Asani Nawatoli in the house of liunti Drain and Later on he was married with the daughter of said Butni Orain and started to live like ghardamad. Thus evidences adduced on this point is highly contradictory to the statement as made out in the written statement because W.S. shows that Sepla Oraon was married and adopted as ghardamad during the life time of Jitia Oraon but the evidence has conic that the was married and adopted after the death of Jitia Oraon. Thus the evidence gives a death blow to the case of the defendant as made out in the W.S. regarding the adoption of Sepla Oraon as ghardamad. DWs have been suggested by the plaintiff the widows have no power to adopt ghardamad but the authority Muudas and their country written by SC. Roy shows, that the widow have right to adopt a ghardamad. But there is further evidence that no family members of Butni Orain and Domani Orain went to bring Sepla Oraon for the purpose of keeping him an ghardamad and as such there was no consent of the family members. Moreover, the story of adoption as stated in the W.S. does not find support from the evidence rather it contradicts as stated above and this goes to show that actually Seplu Oraon was not adopted as ghardamad, either by Jitia or his widow liulni. All the DWs. Including the defendant No. 1 have admitted in cross examination that Sepla Ornon died in the Gumla hospital and his dead body was taken to his home village Pasanga when he was buried and his last rite was performed at that very place. This fact is also an important fact regarding the adoption of Sepla Oraon. Had he been really adopted as ghardamad either by Jilia or his widow Butni Oraoin and living in the house of Jitia at village Asani Nawatoli then there was no question of taking his dead body to his village home Pasanga and performing his last rite at that very place. This further goes lo show that the story of adoption of Sepla as ghardamad in imaginary for the purpose of ulterior motive. In fact he was never adopted as such nor living at village home. In view of the aforesaid discussions I hold that Sepia Oraon was not adopted as ghardamad either by Jitia orden or (sic) Orain and accordingly this issue is decided in favour of the plaintiff and against the defendant.
6. Defendant No. 1 who is the appellant, being aggrieved by the said judgment and decree preferred appeal before, the District Judge, Cumin being Title Appeal No. 16/86. The appellate court, after re-appreciation of the entire evidence and after hearing the parties, affirmed the finding recorded by the trial court regarding adoption of Timru by Jitia. Both the courts below have also recorded a finding that the widow of Jitia, namely, Bhutni, had no right to gift the suit land in favour of her son -in-law. According to customary law a tribal widow is not entitled lo inherit the property and the same shall be inherited by the agnates.
7. The very important point which both the courts below have also taken into consideration is that except defendant No. 1, Chamin, all the other co-sharers, namely, the grand sons of Fagu who are defendant Nos. 2,3 and 4, supported the case of the plaintiff about adoption of Timru by Jitia and the plaintiffs possession over the suit land at all material time. The village Punch who was examined as a witness, has also accepted the adoption of Timru by Jitia. In this way both the courts below have recorded a concurrent finding of (act with regard lo adoption and also with regard to continuous possession of the plaintiff and defendant No. 1 over the suit land.
8. In the aforesaid premises I do not find any reason to interfere with the concurrent findings of fact arrived at by both the courts below More over, when the widow had no intered in the suit land, any transfer made by her by way of gift does not confer any right, title and interest in favour of defendant No. 1.
9. For the aforesaid reason, I do not find any merit in this appeal which is, accordingly, dismissed.