Amitav K. Gupta, J. - (1.) This second appeal has been preferred against the judgment and decree dated 13.09.2007 and 26.09.2007 respectively passed by the Additional Judicial Commissioner, Ranchi in Title Appeal No.80 of 1999 affirming the judgment and decree dated 27.08.1999 passed by the Additional Sub-Judge-VI, Ranchi in Title Suit No.265 of 1986.
(2.) For proper appreciation of the matter it would be necessary to refer to the case of the parties. The plaintiffs case is that the suit property was owned and possessed by Durga Oraon and Bijla Oraon and they are governed by the Oraon customary law in the matter of inheritance. That Durga Oraon died before the revisional survey leaving behind his widow Sonia Orain alias Duria Orain and several daughters. Bijla Oraon died leaving behind Mahli Oraon and Chunda Oraon. Mahli Oraon died leaving behind Karma Oraon (original plaintiff). Chunda Oraon died leaving behind his son Mahli Oraon. It is averred that at the time of revisional survey the suit properties were in possession of Sonia Orain alias Duria Orain, widow of Durva Oraon who used to get the land cultivated through her son-in-law Dewa Oraon due to which the suit property was wrongly recorded in the name of Dewa Oraon. That Dewa Oraon died leaving behind his son Dayal Oraon who also died leaving behind his son defendant No.1.
(3.) The plaintiffs case is that Durga Oraon died without any male issue and hence as per customary law the property of Durga devolved upon his nearest male agnates and the plaintiffs grandfather came into cultivating possession of the suit property. That in a criminal case filed by Dewa Oraon and Sonia Orain alias Duria Orain against the grandfather of the plaintiffs, the grandfather of the plaintiff was acquitted whereafter Dewa Oraon and Sonia Orain instituted Title Suit No.134 of 1932 against the grandfather of the plaintiffs for declaration of title and recovery of possession and the said suit was decided on 25.06.1934 wherein it was held that Sonia Orain alias Duria Orain was entitled to the usufruct of the suit property for her maintenance during her life time. It was also held that Dewa Oraon was not the "ghar damad" of late Durga Oraon and therefore, he had no right, title and interest or ownership possession over the suit property. Since the other agnates of Durga Oraon who were arrayed as defendant in the suit did not claim the suit property hence they were not made party in the present suit. It is stated that Sonia Orain alias Duria Orain died and the plaintiff as the only male agnates are entitled to possession of the suit property. That they demanded the possession of the suit property but defendant No.1 refused to accept their claim. It is alleged that defendant No.1 has leased out Plot No.301 measuring area of 2 acres to defendant No.3 for running brick kiln on annual rent of Rs.1300/- and plot No.413 measuring area of one acre to defendant No.4 on a monthly rent of Rs.1200/- for the purpose of Chuna Bhatha. It is alleged that defendant No.1 also leased out the said plot to defendant No.3 for the last 8 years and to defendant No.4 for last three years. That defendant No.1 has no right or was not entitled to lease out or receive the rent from defendant Nos. 3 and 4 and the plaintiffs are entitled to recover wrongful gain made by defendant No.1. On the above grounds, the plaintiff sought a decree for declaration of the right, title and interest and for possession of the suit property.;