JUDGMENT :

Sanjay K. Agrawal, J.

1. The substantial question of law found involved and formulated for determination in this second appeal preferred by the plaintiffs/appellants at the time of admission is as under:--

"Whether the Courts below are justified in dismissing the suit of the plaintiffs by holding the scheduled suit land to be impartiable as according to right of primogeniture the name of the eldest member was recorded ignoring that by operation of Section 39 of the M.P. Abolition of Proprietary Rights (Estate, Mahal, Alienated Lands) Act, 1950 and Section 158(1)(b) & 164 of M.P. Land Revenue Code, 1959, incident of impartibility has extinguished and the estate became bhumiswami and plaintiffs have acquired right to the property?"

(Parties herein will be referred as per their status shown and ranking given in he plaint before the trial Court.)

2. Following genealogical tree would demonstrate the relationship among the parties:--

3. Bisahu Singh Gond had two sons namely, Bodhsingh and Kosingh. The original plaintiffs herein were sons of Kosingh. They instituted the suit for declaration of title and possession in respect of the properties specifically mentioned in Schedule B annexed with the plaint. It is their case that they belong to Gond community and in the pre-independence era, their grand-father namely Bisahu Singh was the Mahfuza Thekedar of Village Konari, District Raipur and held a total estate of around 14.63 hectares of land in the capacity of being the Mahfuza Thekedar of Village Konari and the total estate has been mentioned in Schedule A annexed with the plaint. It is further pleaded that after the death of Bisahu Singh, he was survived by two sons namely, Bodhsingh and Kosingh and at that relevant time, as per the applicable law of lineal primogeniture (which means first born and denotes the preferential rights of the senior most in age to succeed to the estate, since senior most in age is entitled to succeed to the estate in preference to his younger brother, which is impartible in nature), the name of Bodhsingh was recorded in his place as the Mahfuza Thekedar of Village Konari as well in his estate in the revenue records. It is their further case advanced in the plaint that after the death of said Bisahu Singh, his two sons namely, Bodhsingh and the plaintiffs' father-Kosingh partitioned the estate among themselves and were in separate occupation and possession of their respective properties. It was also stated that even after the said arrangement/partition between the brothers, the name of elder brother Bodhsingh continued to be recorded in the revenue records and thereafter, in the year 1954, their father died and after his death, the original plaintiffs being the legal heirs of Kosingh inherited his share of estate and were in occupation and possession of the said part. It was also pleaded that in the year 1955, their father's brother Bodhsingh died and his share was inherited by his widow Bhagwantin Bai and other LRs. The said arrangement/share of partition as it existed between the two brothers continued peacefully without disturbance by their legal representatives till 1979, when original defendant No. 1 Bhagwantin Bai along with other defendants interfered with the peaceful possession of the plaintiffs over the properties mentioned in Schedule B and on enquiry, the plaintiffs came to know that after the death of Bodhsingh, taking advantage of his sole name having been recorded in the revenue records, defendant No. 1 in connivance with the officials got her sole name mutated in the revenue records showing herself to be the exclusive owner of the entire estate as held orig