C A V Order

1. This second appeal has been filed by appellants against the judgment and decree dated 18.11.2019 passed by the learned Additional District Judge, Pendraroad in Civil Appeal No.25A/19, reversing the judgment and decree dated 22.2.2019 passed in C.S. No.32A/2015 by which learned Civil Judge Class-1 Pendraroad has dismissed the suit filed by plaintiffs/ respondent No.1 and 2 herein.

2. Facts leading to filing of this second appeal are that the parties to the civil suit are predecessors of Late Bhagirathi who was having total 6.45 acre land of different khasra numbers situated in village Girari, PH No.31, RI Circle Pendra, Teshil Pendra, District Bilaspur (CG). Defendant Nos.1 and 2, who are sons of defendant No.3, daughter of Late Bhagirathi, got submitted an application by another person impersonating as Bhagirathi for mutation of suit property in their name and in which on 21.9.2006 an order was passed recording name of defendant Nos.1 and 2 herein against the suit land. After the death of Bhagirathi, when plaintiffs/respondents No.1 and 2 approached the Patwari concerned for mutation of the land recorded in the name of Bhagirath, they came to know that the suit land has already been recorded in the name of defendants No.1 and 2. An appeal against the mutation order was filed before the Sub- Divisional Officer, Pendrraod and the same was dismissed vide order dated 11.5.2009 on the ground of limitation. After dismissal of appeal, plaintiffs filed civil suit for declaration, partition and separate possession of the suit land on the ground that plaintiffs and defendants are entitled to get equal share in the suit property, which is the ancestral property.

3. Defendants filed written statement denying title of the plaintiff and that they have equal share in the suit property. It was pleaded that plaintiffs and defendants belong to Gond community and as such the provisions of the Hindu Successions Act will not apply. As per customs prevailing in the Gond community, married daughters have no right in the property of the father. If the married daughter did not leave house of her father and continued to reside alongwith her husband in the paternal house, then the married daughter is is entitle to equal right in the property. As defendant No.3, after her marriage, did not leave house of her father, continue to reside along with her husband in the parental house and taken care of her father during his lifetime, therefore, she is entitled to inherit property of her father. It was further pleaded that Bhagirathi with the consent of defendant No.3, had given half of his land and house to defendant No.1 and 2 and since then defendants are in occupation and possession of the same. Bhagirathi has also executed a Will on 30.12.2006. After the death of Bhagirathi, defendants have become owner of the property, therefore, the question of title of plaintiffs over the suit property does not arise. Plaintiffs have not properly valued their claim nor affixed proper court fee. Their claim is also barred by limitation because they should have laid their claim after the death of Bhagirathi.

4. On the basis of above pleadings of both the sides, trial Court framed as many as six issues and after affording opportunity of leading evidence, oral and documentary, to the respective parties, by the judgment dated 22.2.2019 the trial Court although recorded that it has not been properly proved by defendants that order of mutation in their favour has been validly passed and that Will stated to have been executed in favour of defendants is surrounded by suspicious circumstances and as such it does not convey any right over the suit property to defendants, however, dismissed civil suit holding it to be barred by limitation.

5. On civil appeal, after appreciation of oral and documentary evidence, the first appellate Court recording the reasons in detail in Para 13 onwards of the impugned judgment dated 18.11.2019, reversed the judgment of trial Court, dec