COURT OF CHHATTiSGARH AT BILASPUR PlaiRtiffs iUS?ijl.5> Defendants 2. 9QA n 4of 1. Mangatin, VVd/o. Late Sukher, aged about 44 years, 2. Shivbarat, S/'o. Sukher, aged about 10years, 3. Sanad, S/o. Sukher, aged about yeare, Appsllant No.2 and 3 are minors, through thelr Natural Guardran/Mother Mangatin, Wd/'o. Sukher, aged about 44 years, Ai! above R/o. viiiags Chorkidih, Tahsil Lundra, District Surguja (C.G.) 'v'ersus Dhoio, S/o. Bodra, aged about 60 years, R/o. village Chorkidih, Tahsl! Lundra, District Surguja (C.G.) Chamri, D/'o. Bodra, aged about 55 years, R/o. vi'iage Patradih, Tahsii Lundra, Disfrict Surguja (C.G.) Sukhari D/o. Bodra, agsd about 51 years, R/o. viliage Karoli, Tahsil Lundra, District Surguja (C.Q.) State of Chhsitisgarh, through: Coliector, Surguja (C.G.) (Second Appeai under Section 100 ofthe CPC) Mr.Manoj Paranjape and ivlr.Vita'am Dixit, counsei for the appeilants. Mr.Sumit Jhanwar, Panei Lawyer for respondent No.4/State. SB: Hon'bie Mr. T.P. Sharma, J.) •^t i?3rsF13 insS3&i s ;BV 1^>"|IF1.'^NI>>—I. (12-9-2011) By this Second Appeai under Section 100 of the Code of Civii Procedure, the appeilants have chaiienged the Segaiity & propriety of the judgment &decree^dated 22.7.2011 passed by the Second Addltionai District Judge, Ambikapur, in Civil Appeal No.21A/.11, affirming the .-'^^-:^'^^'1~^. ^,^--. "^-^'^ f S '^ 'l, l 1 '^SSSfeSi, H I'T^tJ 2. 5. 6. judgment & decree s^ated 25.11.2005 passed by the First Civit Judge Ciass-ii, Ambitepur, Surguja, in Clvil Suit ?'ijo.13A/05, whereby the First Civii Judge Ciass-ii has dismissed the sult for deciaration and permanent injunctton fited &y the present appeiiants/piaintiffs. The present writ peiition has been fiied by the present appeliants i.e. wife and sons of decsased Sukher i.e. Son of Bodra, orlginal ov/ner of the property w'no wias member of Panika caste i.e. Scheduie Tribe ti!i 1971 before its de-notification against respondent Mo.1 brother of deceased Sukher i.e. Dhoio snd sister of deceased Sukher i.e. respondents No.2 Chamri and 3 Sukhari. \ have heard learned counsei for ihe appellants, perussd the judgment & decree impugned and Judgment S ciecrse ofthe trisi Court. From perusai of the judgment & decree impugned it appears that onginaliy the property was owned by Bodra, father-in-iaw and jrandfather ofthe appellants No.1 to 3 and father of respondents No.1 to 3 v,'ho was member of Panika caste (member of Scheduled Tribe tiil its de-notificatlon i.e. tili 1971). As per ciaim of the appeliants, respondent No.1, brot'ner ofdeceased Sukher, was residing in his mairimoniat house as Ghargiwa, respondents No.2 and 3 are daughters of deeeased Sukher and Shsy were not having any right over the property ieft by their father, Shey were not governsd by Hlndu iaw but governed by their cusioms. After considering the rivalry ciaims of the parties and after providing an opportunity of hearing fo the partiss, the triai Court has dismisssd the suit and heid t'nat burden to prove that custom exoiuding the daughiers to succeed the property ieft by their Tather in Psnika caste, then member of Scheduied Caste, was on tjie appeilanis, but the appeiiants have faiied to prove such customary and in absence of suoh proof, ss per ciaim ofirfe respondents; theyare aiso heirs pfdeceased Bodra. Same was chaitenged before the iower appeiiate Court by the appeliants and Sower appeiiate Court has dismissed the appeai by the order Impugned. !n order to take berrefit of custom or costmary right, the parties are ascertaiped and are under obiigation to prove such facts and custom. !n 3bsence of such proof by dismissing the suit and dismissing the appeal both the Courts bsiow have not committed sny iiiegaiity. i do not fmd any substance in the appea! invdving any substantisl question of law. CoRsequently, the appeai is liabie to be disraissed and it is hereby dismissed at motlon stage Itseif. No order as to costs. 8. iriterim appiication stands disposed of. Sd/- T.P.Sharms Judee