JUDGMENT :

1. Appellants/defendants have preferred the instant appeal against the judgment of affirmation in appeal of the Judgment and Decree of the trial Court.

2. The plaintiffs filed the suit for declaration of title and recovery of possession with respect to 5 katha of land and house constructed over it over southern portion of M.S. Plot No. 564, Holding No. 174 under Ranchi Municipal Corporation. The plaintiff’s claim the suit property which stands recorded in the name of Peter Christian also known as Patras Christian the father of the original plaintiffs who have constructed a house over it. The plaintiffs are by caste Oraon and that Peter Christian died leaving behind his four sons and four daughters. As per Oraon customary law after the death of Peter Christian his entire property devolved upon his four sons and as such the plaintiffs being one of the recorded owner became the owner of the suit property. Out of the four daughters, Annee Minz married to John Minz and was survived by two sons Bimal Minz and Erastus. Bimal Minz was married to Keroline Minz and out of their wedlock two daughters namely Sandhay Rekha Lakra and Renu Purty were born who have been impleaded as the defendant No.1 and 2 in the original suit. On the request of Bimal Minz the present suit property was handed over to him for residential purpose on the condition that he shall vacate the same as and when required. In the year 1990 there was amicable partition between the heirs of Peter Christian and southern half of Plot No. 564 measuring 319 karies was allotted to the share of the plaintiff and Northern half was allotted to the share of Biraj Roba. The plaintiff claims that the suit property fell in his exclusive share Bimal Minz who died in the year 1980 and was survived by his two daughters were the present defendants and when the plaintiff requested them to vacate the full suit property they refused to do the same. A SAR case number 74/91 was filed by the plaintiff which was finally dismissed on the ground that the land was not raiyati/agricultural land rather the same was Municipal Chapparbandi and hence Section 71A of the Chhotanagpur Tenancy Act was not applicable.

3. The main plea of defence is that parties are Christians since several generations and do not practice the customs of Oraon Community and, therefore, Oraon Customary Law of inheritance will not be applicable, rather they will be governed by the provisions of Succession Act and therefore daughter through whom the defendants are claiming also have equal rights in the property of the father. An alternative plea of adverse possession has also been pressed into service.

4. On the pleadings of the parties the following main issues were framed by the trial court :

i. Whether the parties to the suit are members of scheduled tribe belonging to Oraon Community and in the matter of inheritance and succession they are governed by their own customary law or Indian succession act?

ii. Whether the original plaintiff J.C. Roba had allowed Bimal Minz and his wife Caroline Minz to occupy the suit premises on lease and licence basis?

5. Both the Courts of fact have answered these issues in favour of the plaintiffs and against the defendant. Relying on the decision of the apex court reported in AIR 1996 SC 1864 it has been held by the first appellate court that intestate succession among tribals are neither governed by Hindu Succession Act nor by the Indian Succession Act nor by the Shariat Law. The later Court below held that they were governed by their customary law. On factual aspect the plea of adverse possession was also not admitted and consequently the appeal was dismissed.

6. Admittedly both the sides claim the right and title over the suit property through their common ancestor Peter Christian. There is no dispute with regard to the genealogy.

The plaintiff is the heir from his son side and defendants are descendants from the daughter side.

7. The entire case turns on the pivotal question whether th