Amitav K. Gupta, J.

This application under Section 115 of Civil Procedure Code(for short C.P.C) has been filed against the order dated 22.01.2015 whereby the learned Sub-Judge-I., Ranchi rejected the petition filed under Order 7 Rule 11 C.P.C., filed by the petitioner in Title Suit no.156/2014, for rejection of the plaint.

2. The plaintiffs' case as per the pleadings is that plaintiffs/O.Ps. and the defendants/petitioners are by caste Oraon of Schedule Tribe community and they are governed by the customary law of their community in the matter of succession and inheritance and as per the customary law if tribal Oraon dies without any male issue then the widow and unmarried daughter if any, are entitled to maintenance out of the usufruct of the landed property of the deceased so long the widow is alive and does not remarry and so long the daughter is not married. After the death or remarriage of the widow and after the marriage of unmarried daughter the immovable properties of the deceased male Oraon will devolve upon his nearest male agnates. It is averred that the land of khata no.129 situated at village-Argora, Ranchi was recorded in the revisional survey in the record of right in the names of Paulus Oraon and Patras Oraon having equal share. That Paulus Oraon had filed Partition Suit no.29 of 1975 against his brother Patras Oraon for partition of half of his share in the lands of khata nos.129,275 and 401. A decree of partition was passed on 24.04.1983 in the aforesaid suit whereby the lands described in the Schedule of the plaint were allotted to the takhta of Paulus Oraon and delivery of possession of the suit property was given to him vide Execution Case no.1/1984.That Paulus Oraon died on 19.07.1994 without any male issue leaving behind his married daughter, namely, Marium Tigga @ Marium Raha (defendant no.1). As per the customary law since Paulus Oraon died without any male issue his brother, Patras Oraon inherited the property of Paulus Oraon and continued in possession in assertion of his own right and remained in possession during his life time and after his demise plaintiff no.1 along with plaintiff nos.2 to 5 as the heirs of Patras Oraon inherited the same and came into joint possession of the suit land and are still continuing in joint possession thereof. It is further pleaded that the plaintiffs are the surviving nearest male agnates of late Paulus Oraon and are entitled to hold and possess the suit land.

It is stated that Paulus Oraon during his life time executed a sada will and testament dated 20.02.1994, whereby he bequeathed the lands allotted to his share in Partition Suit no.29/1975, in favour of defendant nos.1 to 3 and appointed defendant no.3 as executor of the alleged will. It is alleged that the said will was executed by Paulus Oraon without obtaining the permission of the Deputy Commissioner, Ranchi in contravention of the provision of Section 46 of the Chottanagpur Tenancy Act, 1908. Act (for short C.N.T. Act). That Sanjeev Kumar Raha filed a petition in the court of Judicial Commissioner, Ranchi, for grant of probate with respect to the alleged will in Probate Case no.94/95 wherein the plaintiffs appeared and filed objection with pleading that the alleged will is forged and manufactured and has been executed without obtaining the permission of Deputy Commissioner, Ranchi. On objection of the plaintiffs the Probate Case was converted into Probate Title Suit no.1 of 1998, and in the proceeding evidence was led and after hearing the parties the learned Judicial Commissioner by order dated 05.05.2003 dismissed the Probate Case. Against the order of dismissal Sanjeev Kumar Raha preferred an appeal being F.A. No. 02/2004 before the High Court which was allowed by judgment dated 21.12.2012. Against the judgment of the High Court the plaintiffs preferred S.L.P.(S) No. 27123/2013 before the Hon'ble Supreme Court which was dismissed as withdrawn giving liberty to the plaintiffs to pursue other remedie