The main legal point established in the judgment is the importance of strict proof of custom and the burden of proof on the party asserting the custom in property inheritance disputes.

JUDGMENT :

Sanjay K. Agrawal, J.

1. This second appeal preferred under Section 100 of the CPC by the plaintiffs/appellants herein was admitted for hearing by formulating the following substantial questions of law:-

"(1) Whether the first appellate Court has committed an illegality by passing a decree for declaration in favour of the defendants without there being any counter claim by the defendants?

(2) Whether the finding recorded by the first appellate Court that the plaintiffs are not the grand sons of late Chida Uraon is perverse?"

[For the sake of convenience, parties hereinafter will be referred as per their status shown and ranking given in the plaint before the trial Court.]

2. The suit property was originally held by Chida Uraon. The plaintiffs claim that Chida Uraon had two sons namely, Dhola Uraon & Sudhu Uraon and one daughter namely, Jangi Bai-defendant No. 1. Plaintiffs No. 1 & 2 are sons of Dhola Uraon and plaintiff No. 3 is son of Sudhu Uraon. It was pleaded by the plaintiffs that in Uraon caste, they are governed by the custom and in their prevalent custom, father's property is only inherited by his sons and daughters would not get any share in the property of their father and as such, the plaintiffs being the grandsons of Chida Uraon would succeed to the property left by Chida Uraon and defendant No. 1 being the daughter would not inherit and get any share in the property of her father Chida Uraon and therefore the plaintiffs be declared exclusive title-holders and possession holders of the suit land shown in Schedule A appended with the plaint and the defendants be restrained from interfering with their possession in which the defendants filed their written statement denying the plaint allegations stating inter alia that the plaintiffs are not grand-sons of Chida Uraon and defendant No. 1 will exclusively inherit the property of her father and there is no custom in Uraon caste excluding daughters from inheriting the property of their father and therefore she would only succeed the property of her father.

3. The trial Court after appreciating oral and documentary evidence available on record, decreed the suit of the plaintiffs holding that the plaintiffs are grand-sons of Chida Uraon by whom the suit property was held and daughters do not succeed to the property of their father in Uraon aboriginal tribe, as the provisions of the Hindu Succession Act, 1956 would not apply, against which defendants No. 1 & 2, both, preferred first appeal under Section 96 of the CPC which was allowed by the first appellate Court and it was held that the plaintiffs are not grand-sons of Chida Uraon and defendant No. 1, who is the only sole daughter of Chida Uraon, would succeed to the property and granted declaration in her favour which has been challenged by the plaintiffs by way of filing second appeal under Section 100 of the CPC in which substantial questions of law have been formulated which have been set-out in the opening paragraph of this judgment.

4. Mr. A.K. Prasad, learned counsel appearing for the appellants herein/plaintiffs, would submit that both the defendants did not prefer any counter-claim claiming any partition in the schedule property, therefore, the first appellate Court is absolutely unjustified in granting declaration and thereby partition in favour of the defendants, particularly defendant No. 1. He would further submit that the first appellate Court is absolutely unjustified in holding that the plaintiffs are not the grand-sons of Chida Uraon by giving perverse finding by ignoring oral and documentary evidence available on record. He would rely upon a decision of this Court in the matter of Ramdev Ram v. Dhani Ram and others, 2016 (3) C.G.L.J. 574 to buttress his submission.

5. Mr. Manoj Paranjpe, learned counsel appearing for respondent No. 2 herein/defendant No. 2, would submit that the first appellate Court is absolutely justified in holding that defendant No. 1 is also entitled for the property left by her f