2024:CGHC:31962 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 145 of 2020 • Bidhul S/o Sukhti Aged About 60 Years R/o Village Gangapur, Tahsil Lundra, District Surguja, Chhattisgarh.

... Appellant/Plaintiff versus

1. Ramkunwar W/o Khalu Aged About 56 Years R/o Village Gangapur, Tahsil Lundra, District Surguja, Chhattisgarh. (Defendant No. 1)

2. Jailal Das S/o Jangli Aged About 35 Years R/o Village Gahila (Gangapur), Tahsil Lundra, District Surguja, Chhattisgarh. (Defendant No. 2)

3. Ramkeshwar S/o Jangli Aged About 35 Years R/o Village Gahila (Gangapur), Tahsil Lundra, District Surguja, Chhattisgarh. (Defendant No. 3)

4. State Of Chhattisgarh Through- Collector, Ambikapur, District Surguja, Chhattisgarh.

... Respondents For Appellant : Mr. Anurag Singh, Advocate For Respondent No.4/State : Mr. Topilal Bareth, Panel Lawyer Hon’ble Shri Justice Naresh Kumar Chandravanshi Judgment on Board

22/08/2024

1. Heard on admission.

2. This second appeal has been preferred by the appellant/plaintiff under Section 100 of the Code of Civil Procedure, 1908, challenging the judgment and decree dated 20.11.2019 passed by Seventh Upper District Judge, Ambikapur (Surguja) in Civil Appeal No.74A/2018, whereby the learned first BINI D byig Bit Ia Nll Iy P s Rig An De Ed EP PRADEEP Date: 2024.08.24 appellate Court has affirmed the judgment and decree dated 25.7.2018 passed in Civil Suit No.502A/2013 by Second Additional Judge to the Court of First Civil Judge Class-II, Ambikapur Distt. Surguja whereby, learned trial Court has dismissed the civil suit filed by the appellant.

(For sake of convenience, the parties would be referred hereinafter as per their status before the trial Court)

3. Facts of the case, as projected by the plaintiff, are that, the plaintiff filed civil suit for declaration of his title and permanent injunction in respect of suit land mentioned in ‘Schedule A’ annexed with the plaint, stating inter alia that, Sibar Panika was owner of the suit land and he had two daughters namely Manmatiya and Budhiyaro. Since Sibar Panika had no son, he kept his daughter Manmatiya as gharjhiya daughter and his second daughter Budhiyaro, after her marriage, was residing in her matrimonial house. Being gharjhiya daughter, Manmatiya and her son were cultivating the suit land. Both the parties belong to Panika caste, which was recognized as Scheduled Tribe till 02.10.1971, therefore, Hindu Succession Act, 1956 is not applicable to the parties and as per the custom prevailing in the Panika community, if the daughter is kept as gharjhiya by father, then, said daughter obtains share on the property of her father as a son. After marriage, Ram Kunwar, who was daughter of Manmatiya, was residing at her matrimonial home and she has not claimed any right over the suit land. Manmatiya’s second daughter, namely Parvati, died issueless, thus, plaintiff Bidhul is having absolute right over the suit land. But, defendants 1 to 3 got mutated their names on the revenue papers of the suit land and taking undue advantage of the same, the revenue authorities partitioned the suit land between the plaintiff and defendants 1 to 3, whereas, defendants have no right over the suit land, hence, the plaintiff has filed civil suit.

4. Defendants 1 to 3 filed their written statement stating inter alia that Sibar Panika had no sons and Manmatiya and Budhiyaro were his daughters. Defendant No.1 is daughter of Manmatiya and defendants 2 & 3 are sons of Budhiyaro, hence, they are also having ownership over the suit land through their mothers and also entitled to get the share on the share of their respective mothers. The plaintiff was appearing before the revenue authorities during the proceedings of the partition, but he did not raise any objection at that time, therefore, final order has been passed on 09.3.2011, which has become absolute as the plaintiff has not challenged that order before higher revenue authorities.

5. Based on the pleading of the respective parties, the learned trial C