The main legal point established in the judgment is that the plaintiffs failed to prove the customs governing inheritance in their tribe and that the Hindu Succession Act did not apply to them.

JUDGMENT :

1. This is plaintiffs' Second Appeal under Section 100 of the C.P.C. challenging the judgment and decree dated 21.04.2009 passed by the learned Second Additional District Judge (F.T.C.), Surajpur District - Sarguja in Civil Appeal No. 1-A/2008, by which learned Second Additional District Judge has dismissed the appeal affirming the judgment and decree dated 29.02.2008 passed by the Civil Judge Class –2, Surajpur, District - Sarguja in Civil Suit No. 21-A/2008.

2. The appeal was admitted on 22.07.2020 on the following substantial question of law :-

(I) Whether both the Courts below were justified in dismissing the suit of the plaintiffs by recording a finding which is perverse and contrary to the record ?

3. During the midst of the arguments another substantial question of law emerged for determination of this Court is whether both the courts below were justified in not applying the provisions of Hindu Succession Act on the facts and circumstances of the case?

4. Learned counsel for the appellants and learned counsel for the respondents No. No. 11 (a) to (d), 15(a) and 17 (a), (b) as well as Government Advocate made submission with regard to substantial question of law.

5. For the sake of convenience, the parties shall be referred to in terms of their status in Civil Suit No. 21-A/2008.

6. The plaint averments, in brief, are that plaintiffs have filed civil suit before the Civil Judge, Class II, Surajpur on 17.03.1993 for partition and possession of the suit property as mentioned in the schedules A-B-C of the plaint measuring 9.227 acres situated at village Manpur, 4.32 acres situated at village Devipur and 13.53 acres situated at village Mani respectively. The plaintiffs have pleaded that the plaintiff and defendants No. 1 to 16 belong to Gond tribe but since their ancestors have adopted hindu dharma, therefore, they are governed by hindu law. It has been contended that plaintiffs and defendants No. 1 to 15 ancestors and father of defendant No. 16 Bhajju have acquired property as mentioned in Schedule A and B situated at village Manpur and Devipur and from the nucleus of the property of Schedule A and B, late Bhajju purchased land belongs to Schedule C. It has been further contended that after acquiring the property in Schedule C, Bhajju started living with his elder son Bhudhram at village Mani. At that time Bhudhram has shown willingness to separate from the joint hindu family. Accordingly late Bhajju with his son has been given share of Budhram and they were living separately, therefore, they will not claim share in the joint hindu family property mentioned in Schedule A and B. After getting his share late Bhajju started living with his son Amarsai, Sohan, Duhan, Amirsai and daughter Dhaiya. Even after marriage Dhaiya is living her father, brothers and her husband. After death of late Bhajju his legal heirs son Amarsai, Sohan, Duhan, Amirsai and daughter Dhaiya have taken title over the suit property. The plaintiffs and defendants No. 6 to 16 have partitioned the property mentioned in Schedule A and B to the extent of 1/5th share is the right of the plaintiffs, but the defendants No. 6 to 16 have denied it and have challenged the title of the plaintiffs with regard to suit property mentioned in Schedule A and B which necessitated the plaintiffs to file the present suit. On the above factual matrix the plaintiffs have prayed that it may kindly be declared that plaintiffs and defendants are joint owner of the suit property mentioned in Schedule A and B to the extent of 1/5th share. It has also been prayed that defendants No. 1 to 5 if they claim their share then property mentioned in schedule A and B will be treated as Joint hindu family property and partition be done to the extent of 1/6th share of property mentioned in Schedule A, B and C.

7. Defendants No. 13.a and b have filed written statement and supported the case of the plaintiffs whereas defendant No. 16 has filed affidavit contending that they are trible and