IMPORTANT POINT
Custom – Custom evolves by conduct – Customs too, like law, cannot remain stuck in time and others cannot be allowed to take refuge in customs or hide behind them to deprive others of their right.

JUDGMENT (CAV)

Heard on admission.

2. This is plaintiff’s Second Appeal under Section 100 of the C.P.C. challenging the judgment and decree dated 19.12.2013 passed by the learned Additional District Judge, Kunkuri District - Jashpur in Civil Appeal No. 2/2009, by which learned Additional District Judge has dismissed the appeal and affirmed the judgment and decree dated 20.02.2009 passed by the Civil Judge Class-2, Kunkuri, District - Jashpur in Civil Suit No. 9-A/2008.

3. For the sake of convenience, the parties shall be referred to in terms of their status in Civil Suit No. 9-A/2008 before the trial Court.

4. The plaint averments, in brief, are that plaintiff filed a civil suit before the Civil Judge, Class II, Kunkuri on 27.08.2004 for declaration of title and confirmation of possession over the land bearing Khasra No. 18 Area 8738 Ha situated at P.H. No.19, Village - Jhargaon, Tahsil - Kunkuri, District - Jashpur (hereinafter referred to as ‘the suit property’) mainly contending that :-

A. The plaintiff and the defendants are permanent residents of the village Jhargaon and by caste they are Gond which comes under the Scheduled Tribe category. They are governed by their local customs and traditions. It has been further contended that the suit property detailed in the Schedule “A” of the Suit was owned by Late Ganpat. Late Ganpat had three wives namely Sukri Bai, defendant No. 1 Somari and Defendant No. 2 Bhukli. He is son of Sukri Bai and defendant No. 3 is the daughter of defendant No. 2.

B. It has been further contended that as per the custom in their society which is prevalent since ancient times second and third wives of the deceased have no right or authority of any kind on the property of the deceased. Similarly, if there is a son, then the daughters have no right or authority of any kind over the property of the deceased. However, defendants No. 1 to 3 after death of Ganpat in 1986, fraudulently without intimation to the plaintiff, got their names mutated in the revenue record, whereas the suit property is still in possession of the plaintiff.

C. It has been further contended that the defendants No. 1 to 3 moved an application on 09.1.2004 before the Naib Tehsildar for partition. On receiving notice from the Tahsildar, the plaintiff came to know that the defendants in connivance with the revenue officers mutated their names in the revenue record. The plaintiff submitted his objection before the Tehsildar wherein the Tahsildar directed the plaintiff and defendants to file civil suit for declaration of title and deferred the case for three months. However, civil suit could not be filed within three months. The plaintiff preferred civil suit for declaration of title and decree of possession and also moved application under section 151 of the CPC along with an affidavit before Naib Tehsildar to keep the matter on hold till the pendency of the civil suit. It has also been contended that plaintiff is in continuous possession of the suit property and as per their custom, the defendants No. 1 to 3 have no right over the suit property, therefore, the suit may be decreed in his favour.

D. Defendants No. 1 to 3 filed written statement and counter claim denying the allegation levelled in the plaint and contended that they have adopted Hindu Rituals, therefore, they are governed by the Hindu Succession Act, 1956. It has been further contended that the plaintiff is not the son of late Ganpat but he was servant of Late Ganpat and they are the legal heirs of Late Ganpat, therefore, they are the title holder of the suit land and prayed for dismissal of the suit.

E. The plaintiff filed reply to the counter claim contending that his mother performed second marriage with Pano Gond, at that time he was 6-7 years old but he lived with Late Ganpat. It has been further contended that defendant No. 1 Sumari Bai married to Narayan Manjhi and defendant No. 2 was married to Sukhsai, but they developed illicit relationship with Late Ganpat,