HIGH COURT OF AT BILASPUR APPELLANTS (DBFENDENTS1 SECOND APPBAL N0. 161/2007 1. Maagal Siagh S/o ChaBira Pafhari, aged about 55 years, R/o Village: Dumatola, P.C. No. 33, Talisil : Mohla, Distt Rajnaiidgaon (C,G.), 2. Cham.ar Singh S/o Maagal Singh R/o Village : Katengatola, TahsU : Mohla, Dikstt Rajnaiidgaou (CG.). RESPONDENT (PLAINTIFFI VERSUS 1. 2. Jhaduram S/o Heera Lal, R/o Village : Kateugatola, Post: Rengakathera, Tahsil : Mohla, Distt Rajnaiidgaon (C.G,)., State of Chhattisgarh Through CoUector, Distt. Rajnaadgaon (C,G.). SECOND APPBAL UNDBR SBCTIOM 100 OP CODB OP CIVIL PROCBDEURE, (SB :Hoa?ble Ms. T.P.Sharma, J.) Present : Shri Deepak Jain; Advocate for the appellaiits. 2. ORAL-ORDBR (Passed ©a 12/8/2009) This second appeal under Section 100 of the Civil Procedui'e Code, 1908 (ia short tlie Code) has been preferred against fhe judgment and decree dated 15/2/07 passed by fhe Distdct Judge, Rajnandgaon ui Civil appeal No, 3-A/06 afiirmmg the jndg3iieut aad decree passed by Civil Judge class-1 Anibagai'h Choukivide judgment dated 29/11/05 ui civil suit No. 6-A/2000 whereby leamed Civil Judge Class-1 has decreed tlie suit for declaration and peroian-ent iajunction filed on behalf of respondent No. 1, The judgment aiid decree is challenged on the ground that leamed botli tiie courts below has not considered fhe ciistom prevailmg in tribal (Gond Caste) which the appellants are fhe member m which widow has no right to sell fhe properU^ received m succession to ofh.er ^r^- "I 3 // 2 5. 6. 7. person except the nieniber of her faaiily and fhereby coinniitted an. itlegality. The brief facts giviag rise to fhis appeal is deceased Rupautin Bai has sold the property to tiie respondent Jhaduram aad he was ia possession of fhe suit lao.d present appeUaiit has toded to iaterfere ia the possession offhe respondent No. 1 tiierefore he has j51ed tlie suit for declaration aad mjunction where present appeUaiits had pleaded tliat origiaally property was owned by husbaad of fhe Rupautui Bai aiid ia fhe Gond Caste custoinaiy succession is appMcable, widow of Gond is not entitled to seU tiie laiid to ofher thaii member of her family aiid she has only Umited right of maintenaiice, Defendant No, 3 is nephew husbaad of fhe Rupautm Bai aiid defendaat No, 1 ie, appeUaiit No. 1 is a broth.er of tlie husband of Rupautm Bai fhey are owner of tlie property, On fhe basis of averments of the parties issues were frained, after aifording aii opportunity of hearmg suit was decreed in. favour of the respondent No. 1 aad same was affinaed in fii-st appeal. Shri Deepak Jam, Advocate for the appellao.ts are heard, Judginent aad decree mipugned aad order oftdal court perused, Accordiag to fhe case of the plaiatiff/respondent No. 1 he has purchased fhe suit laiid froin Rupautin Bai tdbal widow by registered sale deed. Present appellaats have pleaded tlie custom tliat Gond widow does not succeed the property is a fuU owner but fhey are only entitied for inaiD.tenan.ee, The burden to prove Uie custora was heavily on fhe appeUants. Prcseat appellaiits has exaBiiaed DW3 Raailal aged about 59 years to prove tbe custom Para-2 of fhe deposition made under affidavit reads as under:- ./•'^•. .^' ^f./'. |«»rim». 3- f<W f^ B^ WU^ ^' ^ ^t wsn^ ^TZFF S ujt f^ ^H^M ^ ^ ^ ^TW sffl ^TT^ WJM ^ ^T ^t TU^f 0rw^' ^ft^wjcf ^ vf^ ^ wr^r ^ft ^T ^W^I q^ ^7 Sff^R f W^ ^Wd ^ WM ^ft ^^ W W^?T ^T^ ^ f^ ^W ^ ^ftl ^T ^t ^ ^ WJ^, 3F77 c/^<?f?? qrf^ ^oT^ ^ ^ (7?' ^ft W^ ^jf^J^jFf ^f wm ^f umft ^/>f 8. Except fhis fact appellaiits has not adduced aiiy evidence m support of alleged custoin, In order to prove the custora parties are required to estabHsh fhat tlie custoni is prevailing ia tlieir caste or schedule siace long tmie aad has occupied fhe possession of law. The Para-2 of the deposition of Ramlal does not disclose that where tih.is custoin ia siace long tisne where sonie other nieinber had adopted this custoni eveu how him. came to know about such custom. It appears tliat it is a nieniorandum of custoni which he carae to know froin aay source this evidence is not sufiScient to prove the custora. Bofh fhe courts below has rightly rejected the claioi of such custoin. 9, Therefore, I do not fiad aay scope iii fhis secoud appeal or substaiitial question of law for decision of second appeal, Consequently, this secoud appeal is Uable to be dismissed aiid it is hereby disniissed at the stage of niotion itsetf. ——~~~-7 Sd/- T.P. Sharma Judge ^-