S. B. Sinha J, J.

1. This First Appeal at the instance of the defendants appellants arises out of a judgment and decree dated 27-2-1975 passed by Shri r B P. Sinha, Subordinate Judge Jamshedpur in Title (Partition) Suit No.26 of 1972 whereby and whereunder the said learned court decreed the plaintiff respondents suit inter alia declaring her l/3rd share in the suit lands.

2. The plaintiff-respondent filed the aformentioned suit alleging inter alia therein that one Kuar Santhal was the common ancestor of the parties, who died leaving behind his four sons namely, Pachia, Dubai, Sagram and Barjo, dubai died leaving behind a son Arjun Soren who is defendant No.1 Barjo also died leaving behind three sons who are defendant Nos.2 to 4. Sagram also died leaving behind his three sons namely Doman, Taria and Hiralal but they all pre-deceased Pachia without leaving any issue whatsoever. According to the plaintiff, after the death of Kuar Santhal and his three sons, the plaintiffs father Pachia and his two surviving brothers became the sole owner in respect of the properties in suit and upon the death of Pachia, the plaintiff being her only heir succeeded to the interest of his father.

3. The defendants filed a joint written statement alleging inter alia therein that there had been a previous partition in respect of the suit lands during the life time of Pachia wherein some plots were allotted to him. After allotment of the lauds in the share of Pachia, he transferred some lands to the plaintiff and the same are being cultivated by her and her husband and as such olaintiff has no share in the suit lands. It was further asserted that the parties being aboriginals, are governed by their customary law in the matter of succession and inheritance. The defendants further asserted that m any event the plaintiffs having been ousted from the suit lands, the suit is barred by limitation.

4. Upon the aforementioned pleadings of the parties the learned trial court framed the following issues. (1) Whether the plaintiff has got any cause of action for the suit (2) Whether the suit as framed is maintainable (3) Whether the suit is barred by limitation and ouster (4) Whether there is unity of title and possession between the parties over the suit land (5) Whether the plaintiff has got one-third share in the suit land and whether she is entitled to get it partitioned by metes and bounds as claimed (6) Whether the plaintiff is entitled to get a decree as claimed (7) To what relief, if any, is the plaintiff entitled ?

5. The learned court below held that the genalogy of the Parties as alleged in the plaint is not disputed. It further held that the defendant had not been able to prove either their case of previous partition or ouster of the plaintiff from the suit lands, the plaintiff was entitled to the reliefs claimed for by her.

6. When this appeal came up for hearing on the earlier occasion, this court by an order dated 5-8-1987 remitted the case to the trial court in terms of order 41, Rule 25 of the Code of Civil Procedure directing the learned trial court to frame two additional issues viz. (i) as to whether the parties are adibasis and as such members of the Scheduled Tribes and (ii) in the event, it is held that the parties are adibasis whether they would be governed by their customary law or not.

7. Upon the passing of the aforementioned order, the learned trial court framed two additional issue as directed by this court. The learned trial court also gave opportunities to the parties to adduce additional evidences.

8. By reason of the judgment dated 10-1-1989, Shri Suresh Prasad Sinha, sub-ordinate Judge, 3rd Court held that admittedly the parties are adibasis and thus members of the Schedule Tribes.

9. However, while deciding the aforemention additional issue No.2, the learned court below took into consideration the evidences adduced on behalf of the parties and held that the parties are governed by Hindu Law in the matter of succession an