^^9 :-* ^ ^" ,LV(D IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR SECOND APPEAL N0. 6-^ OF 2005 1. Reku S/o Jaypal aged about 50 .^\ years APPELLANTS /Plaintiffs y?. Jagdish S/o Ratu aged about 30 .A^/.. WMyr 3- ^ ^•' ^%? /w /^ y /: years LalsayS/o Ratu aged about 22 years All caste Nagesiya, Occupation Agriculture R/o Village Chitakvine, Tah Kunkuri, Distt. Raigarh lG.@t» V ER SU S RESPONDENTS 1. Raghuram S/o Ghalandu aged about 40 years ,2. Chuthalu S/o Ghalandu aged about 35 years. 3. Laldev S/o Ghalandu aged about ^ 30 years (p^KCaste Nagesiya, occupation Agriculture, R/o Chitakvine Tah. Kunkuri, Distt. Raigarh (S..^? MEMO OF SECOND APPEAL UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE. 1908. AppeHants/ Raintiffe HOH COURT OP a+IATnSQARH BILASPUR Sincrie Bench:- Hon'ble Shri Justice DWrendra Mtshra Second Aooeal No.65 of 2005 :- Rekuandrthws Vs Defendants Raghuram and others Appellanfrby Shri A.V.Shridhar, Advocate. JUDGEMENT (Ddivwd on3(/03/2005) Heard on admjssion. 2. This is second cMI appeal of the appellants/plaintiffs. A suft for declaration of tttle, injunctjon and confirmation of possession was dismissed by the trial Court and the appeal preferred by the appellants/plaintiffe was subsequently dismissed by the Jower Appellate Court. (Parties hereinafter shall be referred as per their description in the trial Court.) 3. The case of the platntiffe was that the sujt land descrlbed In schedute 'A' of the piaint betonged to their mother namely Bilai who was the exclusive owner and which was subsequent(y inherited by the plaintffife after th©deatti of Bilai on 15.12.1987. Inittally, their land was recorded in the name of late Bala Nageshi^ and after his death, the same was recorded in the name of his wtfe Marhi @ Bilri. After the death of Marhi, the name of Bilai was recorded. The father of the defendants Ghalandu got his name mutated 'm the revenue record in the year 1965 in coUuslon with Revenue Inspector. However, the same was subsequently set aside by the order of Tehsildar. Even then, the name of Ghatandu continued to be recorded without any right or title and after the death of Ghalandu, the names of defendants were mutated along wtth the name of mother of plaintiffs Bilai. .\ (^ r. 4. That, the defendants applied for partition and the Tehsildar vide order dated 16.07.1986 allowed the application for partition. The mother of the plaintiffs preferred an appeal against the order of Tehsildar before th®Sub- Divisional Officer (S.D.O.) and the case was remanded to the Tehsildar vide order dated 04.12.1987. Even after remand, revenue Court allowed the application for partition vide order dated 05.12.1988 and thereafter, the plaintiffe preferred an appeal before S.D.O. w^ich w&s rejected vide order dated 20.06.1989. 5. Learned counsel f@r the plaintiffs submitted that the defendants cto not have title over the sutt land, even then they have disposed of some part of the sutt property without any authority. It was also pteaded by the plaintHTs that mother of the plaint'rffs BtJai had moved an application in the year 1966 before the Tehsildar, Jashpur against illegal mutation in the name of Ghalandu whereupon the SDO vide order dated 27.03.1966 directed the Tehsildar to pass an order of mutatjon whereupon the Nayab Tehsildar, Jashpur vide order dated 05.07.1966 ordered to delete the name of Ghalandu from the revenue record and declare the sale deed in favour of Ghalandu as iltegal and further helcl that he can chaltenge the same by fUing a civil suit to establish his title. However, Ghalandu did not challenge the same. 6. The case of the defiendants on the written statement was that the originaj ownor of the suit property was late Bala Nagoshiya who is a person of scheduted tribe and as per prevailing customs in the scheduled tribe, the daughters do not inherit the property of their father. After the death of Bala Nageshiya, the proerty was recorded in the name of Marhi @ BNri, the wife df Bala Nageshiya. Daughter Bilai was married by Bala Nageshiya in his life time and she started Ih/ing with husband. The land in question was sold by Marhi through a registered sale deed to Ghatandu and Ghalandu also executed a sale deed for some part of the land m favour of Ruben, Rameshwar and Sukhcharan and the land was mutated in the name of the above purchasers and no objection w«staken by the plaintiffs at the time of mutation. It was further pteaded that Ghalandu was the exctuslve owner of the property during his Ufetime and after his death, the land was mutated in the name of the defendarts. (t was further submitted by the defendants that late Ghalandu preferred an appeal against the order dated 25.06.1966 passed by Tehsildar and the SDO vide order dated 10.06.1967 disposed of the appeal with the direction that the case involves dispute regarding title and the revenue Court is not competent to dedde and tho parttes were directed to get the question of titte decided by civil Cwirt and tUI such time the mutation proceedings may be stayed and status-cyjo be maintained. |8^ SI^ 7. That, as the name of Ghalandu was continued to be recorded in th® revenue record and after the death of Ghalandu, the names ofthe defendants were mutated in the revenue record, no ch/11 sutt was filed bythe platntiffe. It was further ptoaded that as Ghalandu and Bilai belong to same dat^wy, Ghalandu fV^ did not object recording the name of Bilai m the revenue record. It was also pleaded by the defendants that they are in possession ofthe suit property since 1953 and as such they have perfected their title and the sult of the plaintMTs is barred by law of limitation. 8. On the basis of the pteadings. the trial Court fi^imed issues and recorded a finding that parties to the proceedings are scheduled tribe and as per Section 2 (2) of the Hindu Succession Act (hereinafter referred to as the Act'), the provjsions of the Act fe not applicabteto the persons belonging to scheduted tribe unless the Centrat Govemment by notification in the official gazette otherwse directs. As there is no pleading in the plaint that the parties have adopted Hindu law, a presumption has been drawn that parties to the proceedings are governed by customs prevailing in the caste. Thus, on the basis of the statemerrts of the defendants' wltnesses tt has been held by the trtal Court that as per customs in Nageshiya caste, daughters do not inherit the property oftheir father. 9. tt was also held by the trial Court on the basis of the evidenc®avadabte on record and on the basis of the revenue record of Ex.P/9 for the year 1951-52 that father of BMai late Bala Nageshiya died jn the year 1950 and on the basis ofthe above discusslons, the leamed Ch/11 Judge recorded a flndlng that the parttes are governed by caste customs and as per customs prevailteig, the daughter has no right in the property of her father. 10. The leamed trial Court further recorded a finding that father of the defendants Ghatandu purchased the sult property for a consideration of Rs.500/- through a registered sate deed dated 29.12.1953. The fact that Bala Nageshiya has four daughters. however, the name of Biall was only entered into revenue record demonstrates that as per customs in Nageshiya caste and as per Clause 44 (g) of the then Jashpur State Vaugibule Urge, which was m force at the time ^- of death of Bala Nageshiya, the property of Bala Nageshiya devolved upon his wjfe Marhi who sold the same vide registered sate deed 29.12.1953. 11. Relyjnfl upon Section 44 of the then Jashpw State Vaugibute Urge, in the matters of succession which provides that in the event of death of a tenure holder, the properiy devoh/es upon the eldest lineal descendant mate member of the family and if no male member is in the family then, the property devoh/es upon the widow and if there is more than one widow then, the property devoh^es upon the eldest widow of the femily and the daughters and their progenies do not succeed to the property oftheir father. Thus, tearned trial Court held that after the death offather of BJali jn the year 1950. the property was inherited by her mother Marhj who sold the same vide registered sate deed 29.12.1953 in favour of Ghalandu and on the basis of the material available on reoord, the Court below held that Ghalandu purchased the property by paying a sum of Rs»500/^ as consideration. 12. Thus, tho trial Court reoorded a finding that the name of Ghalandu continued to be recorded in the revenue records which was recorded on the basis of the registered sale deed and transfer effected by Marhi was not challenged ejther by Bilaj even after revenue Court directed the parties jn this regard and therefore, the plaintiffs are not competent to challenge the transfer effected by Marhi and the revenue entries in the name of Ghalandu. Accordingly, the trial Court held that the plaintiffs have faited to prove that their mother BiaU jnherited the suit property from their father and after the death of Bitai, the plaintiffe are the owners of the suit property not Ghalandu and therefore, the defendants have no title over the suit property and further that question of adverse possession is not applicabte in the present case. 13. !t was further held by the trial Court that though Bilai was aware of the execution of the sale deed dt. 29.12.1953 right from year 1956 even then, she took no steps to get the above sale deed cancelled withln three years by flling a ch/il suit despite being directed for the same vide order dated 10.06.1967 by the revenue Court and therefore, the instant sutt which was filed on 29.09.1989 is barred by law of limitation and the plaintiffs and their mother BUai are stopped from challenging the same. Thus, the trial Court recording the above findings dismissed the suit of the plaintiff. The appeal preferred by the appeltants/plaintiffs was also dismissed by the firet Appellate Court by recording identieal findings as recorded by the trial Court. 14. Leamed counsel for the appellants submits that the findings of both the Courts below that Nageshiya tribes are govemed by customs only regarding succession is erroneous and it is further submitted that it was the onus of the defendants to establish that in Nageshiya tribes, they are not govemed by Hindu Succession Law but are governed by their customs and as per customs of Nageshiya caste, the daughters do not inherit the property of their father. However, the Courts below erroneously held that burden of proving that Nageshiya caste are not governed by customs is that ofthe plaintiffs. 15. I have heard teamed counsel for the respeciive parties and 1 havo gone through the records of both the Courts below. 16. Both the Courts below by recording a concurrent finding of facts have arrived to the condusion; 1) That, the parties are Nageshiya by caste and as such member of scheduted tribe, they are not governed by Hindu Succession Act. 2) That, on the basis of the pleadings of the respective parties, it has been held that there is no pleading by the plairrtiffe that the parties have adopted Hindu customs, therefore they are governed by Hindu Succession Act. On the other hand, the defendants have pleaded and proved by evidence that they are govemed by customs prevailing in their caste where daughters <do not inherit the property of their father. 3) That. Bala Nageshh/a died In the year 1950 and the property devolved upon his widow Marhi @ Bilri Nageshiya as per Section 44 of the then Jashpur State Vaugibufe Ufye, then in force in Jashpur State, Marhi transferred the suit land through a registered sale deed in the year 1953 to Ghalandu, the father of the defendants who got his name mutated in the revenue record in the year1966. 4) That, mother of the plaintiffe Bilai was awar®of the sate deed effected by her mother Marhi in the year 1966, even then she did not challenge the sate deed till 1989 and as such the suit is barred by law of limitation. 5) That. as Bilai did not succeed to the estate of her father, the question of plaintiffs succeeding to the estate of Bilai does not arise. Z .! 6 17. The above finding is concurrent findings of facts recorded by both the Courts below which is based on objectlve analysis of matertal avaitabte on record and also based on customary lawand the (aw prevailjng in then Jashpur State. 18. Thus, on the basis of the above dteGussiore, 1 am of the opinjon that there is no substantial question of law involved for adjudiGation of this second appeal and the same deserves to be dismissed at motion stage itself and it is djsmissed accordingly. 19. However. there shajl be no order as to costs. Sd/- Dhirendra Mishra Judge \A^ ^t^