1. This Regular Second Appeal is directed against the judgment and decree dated 5.10.2002 rendered by the District Judge, Chamba Division, Chamba in Civil Appeal No. 29 of 2002.

2. “Key facts” necessary for the adjudication of this appeal are that the appellant-plaintiff (herein after referred to as ‘plaintiff’ for convenience sake) instituted a suit for declaration against the respondents-defendants (hereinafter referred to as the “defendants” for convenience sake) to the effect that father of plaintiff Rasalu was Gaddi, therefore, belonged to Scheduled Tribe community. The parties were governed by custom, according to which, the daughters do not inherit the property of their father and the attestation of mutation No.288 dated 19.2.1987 by the Assistant Collector 2nd Grade, Chamba in favour of the plaintiff and defendants in respect of the land comprising Kitas 16, Khata Khatauni No. 96/124 measuring 39 bighas and 17 biswas to the extent of 1/6th share and the land comprising Khasra Kitas 3, Khata Khatauni No. 97/125 measuring 10 bighas 18 biswas to the extent of 7/98th share and the land comprising Khasra Kitas-10 Khata Khatauni No. 98/126 measuring 12 bighas and 19 biswas to the extent of 14/378th share situated in Mohal Aghar, Pargana Panjla, Tehsil and District Chamba is illegal, null and void and subsequent attestation of mutation No. 371 dated 23.8.1994 in favour of defendant No.1 by defendants No.2 to 5 in the suit land is also illegal, null and void. The suit land was previously owned and possessed by Rasalu, who was Gaddi and father of the plaintiff and defendant No.1. Rasalu being Gaddi belonged to Scheduled Tribe category and after his death, his estate including the suit land was to be inherited by the plaintiff and defendant No.1 being sons of Rasalu. There was a custom amongst the Gaddies that the daughters do not inherit the property of their father after his death.

3. The suit was contested by the defendants. Defendants have admitted that Rasalu was previously owner in possession of the suit land, but it is specifically denied that Rasalu was Gaddi by caste. It is denied that Rasalu was Scheduled Tribe. It is further averred that estate of Rasalu was rightly inherited by the plaintiff and defendants. The mutation has also rightly been attested.

4. Replication was filed by the plaintiffs. Issues were framed by the Senior Sub Judge Chamba on 31.7.1996. He decreed the suit on 20.2.2002 to the extent that defendants No.1 to 5 and their deceased father Rasalu were declared to be belonging to Gaddi community, which was a scheduled Tribe, to which provisions of Hindu Succession Act, in the matter of succession were not applicable and mutation No. 288 dated 19.2.1987 qua the share of deceased Rasalu in the suit land, attested in favour of defendants No. 2 to 5 and mutation No. 371 dated 27.8.1994 attested in favour of defendant No. 1 qua the relinquishment of their shares in the suit land by defendants No.2 to 5, was declared to be illegal, null and void. Defendants preferred an appeal before the District Judge. He allowed the same on 5.10.2002. Hence, the present appeal. It was admitted on 1.6.2004 on the following substantial questions of law:

“1. Whether the Learned lower Appellate Court had jurisdiction to hold the custom to be illegal being opposed to public policy, when the same had not been challenged as such by the respondents?

2. Whether the learned Lower Appellate court has erred in placing reliance on Section 3 of the Limitation Act to come to the conclusion that the suit was barred by time?

3. Whether the learned Lower Appellate Court has erred in invoking the provisions of Section 114 (g) of the Indian Evidence Act when the said provision was not at all attracted to the facts of the present case?”

5. Mr. Anand Sharma, learned counsel for the appellants, has supported the judgment dated 20.2.2002 rendered by learned Senior Sub Judge Chamba.

6. Mr. C.P. Sood, learned counsel for defendant No