-•- \ HIGH COURT OF CHHATTISGARH AT BU.ASPUR SinaleBench : Hon'ble Shri Ditip Raosaheb Deshmukh.J. Appellants Defendants Second ADDealNo.246/2008 1. 2. 3. Respondents Plaintiffs VersuS 1. 2. Ramsevak.aged about 45 years, S/o SuddhuRam. Raj Kumar, aged about 38 years, S/o Ramsevak. Rajesh, aged about 25 years, S/o Ramsevak. Ail resident of Village-Dam, Tahsil Pendra Road, District Bitaspur. Geetabai,agedabout33 years, Caste Mallah, D/o Suddhu Ram. Uma bai, aged about 35 years.Caste h4aliah, D/o Suddhu Ram. Both resident of Village-Darri, Tahsil Pendra Road, District Bilaspur (C.G.) MEMO OF SECOND APPEAL UNDERSECTION 100 OF THE CODE OF CIVIL PROCEDURE. 1908. Present: Shri A. V. Sridhar, counsel for the appellants. ORAL ORDER (Passed on this 14th <lay of July, 2008) • Heard on admission. (2) The appellants/defendants are aggrieved by the judgment and decree dated 11-04-2008 passed bythe Additional District Judge, Pendra Road, District Bilaspur in Civil Appeal No.13-A/2006. (3) It is not disputed that late Suddhuram was the owner of the suit land. (4) Brief facts are that the respondents/plaintiffs had filed Civil Suit No.273-A/1998 before the Civil Judge Class II, Pendra Road, Bilaspur for A ^<' •L declaration of title over thesuit land situatedat Village Darri, Patwari Halka No.19, Revenue Cirele, Qorrela on the ground that parties were governed by the Hindu Succession Act. The appellants/defendants averred beforethe trial Court that they -were Manjhi by caste which was notified as Scheduled Tribe and were thus not governed by ttie Hindu Succession Act.It was also averred that they were governed by custom prevaient in the tribe community whereunder daughters did not succeed to the ancestral property. The trial Court dismissed the suit on the ground that the parties were not governed by the J-lindu Succession Act and the plaintiffe were notentitled to any relief because under the custom prevalent in the tribe eommunity, daughters did not succeed to the ancestral property. (5) Beirig aggrieved, the respondents/plaintiffs preferred Civil Appeal No.13-A/2006 beforethe Additional District Judge, Pendra Road, Bilaspur. The learned lower appellate Court framedan additional issue as to whether the parties to the suit belongedto the Scheduted Tribe category and directedthe trial Court to return a finding after recording evidenee. The learned Civil Judge Class II, Pendra Road, Bilaspur, after recording evidence of the parties retumed a finding that the appeilants/defendants had faited to establish theircaste bemg Manjhi i.e., within the Schedyled Tribe category. The lower appellate Court affirmed the said finding in Civil Appeal No.13-A/2006 vide judgment dated 11-Q4-2008 and granted decree for declaration that the respondents/plaintiffs and the appellant/defendant No.1 herein were governed by the Hindu Succession Act and were joint owners of the suit lands, being the daughters and son ofSuddhuram. -'!'• (6) Shri A. V. Sridhar, learned counsel forthe appeltants/defendants has urged that the burden of proving that the respondents/plaintifls were governed by the Hindu Succession Actwas whollyonthem.It was also urged that the trial Court erred in reeording a finding that the '^ ' •" ' ' . appellants/defendants herein had failed to prove that they were Manjhi by caste and fell within the Scheduled Tribecategory. (7) Having considered the submission of learned counsel for the appellants/defendants, 1 have perused theimpugnedjudgmentanddecree passed by the lower appellate Court. So far asthefinding recorded bythe trial Court on the preliminary issue framed by the lower appetlate Court and subsequently afRrmed by the lower appellate Court.lt is purely a finding of fact and not open to ehallenge in second appeal.it is also to be noticed that the defendant's witness-Arjun had admitted in para 1 & 3 that they followed the Hindu religion and the Manjhj caste did not fall within the Scheduled Tribe category, which has been considered by the lower appellate Court. The contention of learned counsel for the appeliants/defendants that the burden of proving the preliminary issue framed by thelower appellate Courtwas noton the appellants/defendants isalso liable for outright rejeetion. 1 am ofthe considered opinion that no substantiat questionof law arises for determination of this appeal. The appeal is accordihgly dismissed at thestage of admission. I.A.No.1, an appiication for grant ofstay alsostands dismissed. DUip RaosahebDestanu Judge ;--(E3,!!»*-" Tumane