Siife; .;.-'';^..".<-.< .:. ^•^..»^....te^^..^.^^.,»-^..U..<.K<»!,; (H! /^^- y^^^ ^yi.^ ^ff9\ ...-"" v>^"' IW THE HIGH COURT OF CHHATTISGARH ATBILASPUR AP^ILLANT: /Defendant No.l RESPONDENTS: ^ 1/>.^^t fi^.^ .^- ..^^ ^Y y ^' o' ^' J ^ "'y o^ .^' '•s\v;..^ y (c^i ^^ S.A.NO. /06fS.B.l ^ Ghasiyaram S/o Dharamsingh Gond^Adopted son Kunwarsingh, Aged About 45 years,Caste Gond R/o VUlage Bagdogari, P.S. & Tah.- Charama, Distt.-Kanker (C.G.) VERSUS 1. Sint. Kanesari Bai W/o Musa Gondy Aged About 30 years, 2. Kamala D/o Ghasiya Gond Aged About 27 years Boaths Caste Gond ,R/o Village Bagdogari, P.S. & Tah.-Charama, Distt.-Kanker (C.G.) (Plaintiffs) 3. State of Chhattisgarh Through :- D.M. Kanker (C.G.) \^" SECOUND APPEAL UNDER SECSION 100 OF CIVIL PROCEDURE CODE1908 ^ \r f^^. ^ '6-2- HIGH COURT OF CHHATTISGARH. BILASPUR SINGLE BENCH : HON'BLE SHRI PRASHANT-KUMAR MISHRA. J. S.A.No. 350 of 2006 APPELLANT Ghasiyaram. Versus RESPONDENTS Smt. Kanesari Bai and others. Shri vineet Pandey, counsel for appellant. Shri Sanjeev Agrawal, Panel Lawyer forthe State/respondent No.3. ORAL ORDER (20/06/2011) Following oral order of the Court was passed by Prashant Kumar IVIishra. J. Heard. (2) Both the Courts below have decreed plaintiffs/respondents No. 1 & 2 suit declaring that plaintiffs are entitled to half share in the suit property and the defendant/appellant is iiable to deliver possession thereofto the plaintiffs. (3) Undisputedly, the land was held by one Somji who had two wives namely Karobai and Jenibai. Kunwar Singh was the son from Karobai and one Ghasiya, father of the plaintiffs was born from second wife Jenibai. The appellant/defendant has heen found to be the adopted son of Kunwar Singh. (4) The Courts below have accepted plaintiffe' plea that they are entitled for half share in the suit property because their father Ghasiya being the son of Somji's second wjfe Jenibai, which is permissible in the tribal law, they should be held to be entitled to half share in the suit property. (5) Learned counsel for the appeilant would submit that the succession ^opened upon the date of death of Somji and on the said date Kunwar Singh '^fc^" -^ was alive, therefore, plaintjffs would not get any share and that by virtue of the deed of adoption the defendant being the son of Kunwar Singh would alone succeed to the entire property. (6) This Court has gone through the record. There is no dispute about the relationship between the parties. The adoption ofthe appellant/defendant has been found proved by the trial Court whjle answering issue No. 6, however, the trial Court as well as the appellate Court has found that plaintiffs are the daughters of their father Ghasiya who had no male issue and since Ghasiya was the son of Somji through his second wife Jenibai, the said Ghasiya was entitled to half share jn the suit property and the other half would fall in the share of Kunwar Singh, therefore Ghasiya having no male issue, the plaintjffs are entitted to succeed half share in the property which belong to Ghasiya. (7) According to learned counsel for the appellant since Ghasiya predeceased Somji, Kunwar Singh remained the only successor, however thjs Court does not agree with the submission because no such fact has been pleaded by either party as to when successjon would open jn a case of this nature involving custom prevailing in the Gond tribal community. The appellant himself has come into the family by adoption and is trying to oust the natural successor j.e. daughters ofGhasiya. (8) Learned counsel for the appellant has further relied on judgment in the matter of Gulab vs. Boarcf of Revenue & others reported in AIR 2006 Rajsthan 162 to contend that daughters have no right to succeed the property of their father jn tribal community. The facts of the said case are different from the case in hand. In the present case the daughters have been held to be entitled tosucceed to the property because Ghasiya has no male ^?) "^, "•^•'•y '^'.^y-"' 3- issue and the Courts below have found this custom to be proved that in the absence of any male issue the daughters would succeed to the property jn accordance with custom prevailing in the Gond tribal community. (9) In view of the concurrent finding recorded by both the Courts bejow and there being no substantial question of law arising for determination in this appeal, the Second Appeal deserves dismissal at the admission stage. (10) Consequently the Second Appeal is dismissed. Sd//- Prashant Kumar Mishra Judge K