I.A. No. 7533 of 2018

1. The instant interlocutory application has been filed under Section 5 of the Limitation Act for condoning the delay of 15 days in preferring the present appeal.

2. Having regard to the reasons stated in para-5 onwards of the instant interlocutory application, I.A. No. 7533 of 2018 stands allowed and disposed of. Delay of 15 days in preferring the appeal is hereby condoned.

Second Appeal No. 153 of 2016

3. Heard learned counsel for the appellant.

4. The appellant is defendant no. 2.

5. The Suit being Partition Suit No. 183 of 2006 had been instituted by the plaintiffs (respondent nos. 1 to 4 in the present appeal) for partition of the suit land, claiming 1/3 share.

6. The case, as set out by the plaintiffs in the plaint that the common ancestor Somra Munda was the holder of the property. Somra Munda had three sons namely Jhari Munda, Sukar Munda and Kundan Munda. Plaintiffs are descendant of Sukar Munda. Original defendant no. 3 is Kundan Munda. Two sons of Jhari Munda are original defendant nos. 1 and 2.

7. The claim had been resisted by the original defendant nos. 1 and 2, who are the son of Jhari Munda. They had disputed the status of the plaintiffs and original defendant no. 3 by taking plea that they are sons of Somra Munda from concubine and not from the legally wedded wife, as such, they are not the family members and are not entitled for share in the suit property.

8. Defendant no. 3, Kundan Munda had supported the case of the plaintiffs.

9. On the basis of the pleadings of the parties, following issues had been framed by the Trial Court:

1. Is the suit maintainable in its present form?

2. Is the suit bad for non-joinder and mis-joinder of necessary parties?

3. Is there any cause of action for the partition suit?

4. Is the suit barred by the principals of waiver and adverse possession?

5. Is there any unity of title and possession between the parties to the partition suit ?

6. Is the plaintiff entitled for any share in the suit property?

7. Is the plaintiff entitled for the relief or reliefs as prayed for?”

10. The specific findings had been recorded by the Trial Court that there is unity of title and possession over the suit land. Sukar Munda and Kundan Munda are sons from legally wedded wife and as such, they are entitled for their share in the suit property. On the strength of above findings, 1/3 share had been allotted to each branch and accordingly, preliminary decree had been drawn.

11. Being aggrieved, the defendant nos. 1 and 2 had preferred Title Appeal No. 45 of 2014. The Appellate Court, after re-appreciating the entire evidences had recorded the findings on the issues framed by the Trial Court. The findings recorded by the Trial Court had been approved and accordingly, preliminary decree had been affirmed. Thus, the present second appeal has been filed before this Court by the appellant, who is original defendant no. 2.

12. At this stage, learned counsel for the appellant has submitted that from the pleadings of the parties, it is evident that the parties are Mundas and governed by the local customary law. It has been submitted that as per the local customary law, Mundas are governed by special law of inheritance. Eldest son is entitled to inherit the entire property. Other brothers are only entitled for maintenance.

13. For that purpose, learned counsel for the appellants has relied upon the judgment in the case of Naresh Kumar Singh and Ors. Vs. Gopal Singh and Ors. reported in 2003 AIR Jhar R 613. Para-2 and 3 of the said judgment are quoted hereinbelow:

“2. The parties are Mundas as aboriginal tribe of Chotanagpur and suit lands are Mundari Khuntkatti lands. In C.S. Khewat No. 46 of village Landupdih. District-Ranchi, name of Rolya Munda, common ancestor of parties stood recorded as owner of Mundari Khuntkatti tenancy. Roiya Munda died leaving behind four sons, namely, Chaitan, Pirti, Jhabulal and Sukhlal. In Revisional Survey, R.S. Khewat No. 47/1 was recorded in the names of defendants 1 an