2025:HHC:30047 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 23 of 2015 Date of decision: 3.9.2025. Prakash Chand ...Appellant Versus Gulshan Nanda & others ...Respondents Coram: The Hon’ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting?1 For the appellant: Mr. Sanjay Dutt Vasudeva, Advocate. For the respondent: Mr. G.D. Verma, Sr. Advocate with Mr. Sumit Sharma, Advocate. Satyen Vaidya, Judge (oral): This Regular Second Appeal has been filed under Section 100 of the Code of Civil Procedure (for short, the Code) against the judgment and decree dated 23.9.2014, passed by the learned Additional District Judge (II), Kangra at Dharmshala in Civil Appeal No. 2-J/2014, whereby the judgment and decree dated 10.12.2013, passed by the learned Civil Judge (Jr. Division) Jawali, District Kangra, in Civil Suit No. 07/2003, has been affirmed. 1 Whether reporters of Local Papers may be allowed to see the judgment? -2- 2. The suit of the appellant/plaintiff has been dismissed by both the Courts. 3. The appellant and respondents No. 1 to 8 are the sons and daughters of deceased Jagar Nath. After the death of Jagar Nath on 28.10.1995, mutation of inheritance of his estate was attested vide Mutation No. 30 dated 25.10.1997 in favour of legal heirs of Jagar Nath i.e. plaintiff, defendants No. 1 to 8 and wife of Jagar Nath, who later died. 4. The land described in para-1 of the plaint (for short the suit land) was also stated to be part of the estate of Jagar Nath. 5. Respondents No. 1 to 8 sold their shares in the suit land in favour of respondents No. 9 and 10 by way of Sale Deed dated 16.8.2002. 6. Appellant/plaintiff filed the suit against the respondents, seeking declaration to the effect that Mutation No. 30 dated 25.10.1997 and Sale Deed dated 16.8.2002 were wrong and illegal. The plaintiff had alleged that the defendants No. 2 to 10 had no lawful title in the suit land. Plaintiff had based his claim on the premise that -3- the plaintiff and defendants No. 1 to 8 belonged to Schedule Tribe named Gaddi. They were the original inhabitants of Tehsil Bharmour of District Chamba. As per plaintiff, by virtue of plaintiff and defendants No. 1 to 8 being members of Schedule Tribe, Hindu Succession Act was not applicable and rather the inheritance was to be governed by the custom prevalent in the tribe. It was alleged that as per custom in Gaddi Tribe in Chamba District, only the male heirs were entitled to inherit the estate of a male and the wife of the deceased would only inherit a right till her life time. As regards the female heirs, it was stated that the custom prohibited inheritance in their favour. 7. The suit was contested by the defendants. The averments with respect to existence of any custom, as alleged by the plaintiff, were denied. It was submitted that the parties were governed under the Hindu Succession Act and in absence of any custom to the contrary, the provisions of the Act would apply and as such, after the death of Jagar Nath, his estate had been rightly inherited by all his heirs including female heirs. -4- 8. Learned trial Court framed the following issues:- “i) Whether the parties being scheduled tribes Gaddis of Bharmour are governed by tribal custom in matter of succession, as alleged? OPP. ii) If issue No.1 is proved in affirmative, whether mutation No. 30 qua the estate of Jagar nath is null & void, as alleged? OPP. ii-A) Whether the plaintiff is the co-owner to the extent of half share in the suit land? OPP iii) Whether customs of Bharmour area is not applicable to the parties, as alleged? OPD. iv) Whether the suit of plaintiff is not maintainable, as alleged? OPD v) Whether the plaintiff has no cause of action to file the present suit? OPD vi) Relief. 8. Issues No.1, 2 and 2-A were answered in negative and rest of the issues were answered in affirmative and the suit of the plaintiff was dismissed by the learned trial Court by holding inter-alia that the plaintiff had failed to prove the existence of any custom as alleged by him for excluding the female heirs from inheritance of a male member of Gaddi Tribe of Chamba District. 9. Plaintiff unsuccessfully filed first appeal under Section 96 of the Code. The learned First Appellate Court vide impugned judgment and decree has dismissed the -5- appeal by affirming the findings recorded by the learned trial Court. 10. This appeal was admitted on 20.5.2015 on the following substantial questions of law:- “i) Whether the Ld. courts below are right in holding that the parties to the suit are not governed by the custom/Rewaj a-aam of scheduled tribes gaddis of Bharmour in the matter of succession? ii) Whether the Ld. courts below are right in holding that Hindu succession Act 1956 is applicable to the parties? iii) Whether the Ld. courts below are right in holding that the appellant is not co-owner of the half share in the suit land.? iv) Whether the Ld. courts below are right in holding that the scheduled tribes do not carry their customs to the other places? v) Whether the Ld. courts below are right in holding that the mutation No. 30 qua the estate of Sh. Jagar Nath is valid and legal? 11. I have heard learned counsel for the parties and have also gone through the record carefully. 12. Admittedly the suit land is in District Kangra. It is also not in dispute that the forefathers of plaintiff had shifted to District Kangra and the suit land was purchased by grandfather of plaintiff Sh. Tapria about one hundred year prior to filing of the suit. -6- 13. In order to succeed in the suit, the plaintiff in the first instance was required to prove existence of a custom, as alleged by him, in Gaddi Tribe of Chamba District. In addition, it was also incumbent upon the plaintiff to have proved the continuance and prevalence of such custom in the tribe. Another fact which was required to be established by the plaintiff was that after his forefathers shifted to District Kangra, the alleged custom was still prevalent in the family of the plaintiff. 14. The plaintiff, besides himself examined one more witness namely Dhani Ram (PW-2). In his examination-in- chief, PW-2 had stated that after the death of his father, his estate had devolved upon the male members only as per custom. He further deposed that a custom as alleged by the plaintiff was in existence in Gaddi Rajputs in Chamba District. 15. On the other hand, defendants No. 1 and 5 besides examining themselves had produced on record documents to prove that no such custom as alleged by the plaintiff existed and the inheritance even in Gaddi Tribe of Chamba District was in terms of the provisions of Hindu -7- Succession Act. Reliance in this behalf was placed on the copies of mutation Ext. DC and pedigree table Exts. DA, DB and DE. 16. On appreciation of the material available on record, the learned trial Court held that the plaintiff had not been able to establish the existence and continuance of the custom, as alleged by him. The learned First Appellate Court also affirmed the said findings after re-appreciation of the evidence. The findings concurrently arrived at by both the Courts cannot be faulted for the reasons that these are borne from the material on record. The plaintiff cannot be said to have proved the existence and continuance of custom, as alleged by him by oral testimonies of himself and another witness. Both the Courts have rightly drawn adverse inference against the plaintiff for not having produced any documents in the shape of ‘Rewaj-a-Aam’ or any other like document. 17. Noticeably, the plaintiff has filed an application under Order 41 Rule 27 of the Code before this Court in the instant appeal, seeking permission to lead additional evidence for examining the Panchayat Pradhan of Village -8- Sanchui, Tehsil Bharmour, District Chamba with regard to customary right of Gaddi of District Chamba. In this application, a specific admission has been made by the plaintiff that he could not prove the alleged custom before the learned trial Court despite best efforts. 18. As noticed above, the plaintiff was required to prove firstly the existence of custom and thereafter its continuance and prevalence in accordance with law, which he had miserably failed. Though, it was established on record that the grandfather of the plaintiff named Tapia had purchased the suit land in District Kangra about hundred years back still the plaintiff had not made even a whisper that inheritance of Tapia with respect to the suit land had taken place according to the custom, as alleged by him. 19. Thus, there being no evidence either of existence of custom or its continuance or prevalence, no decree, as prayed by the plaintiff could have been passed in his favour. 20. The plaintiff/appellant has not been able to make out a case for leave to lead additional evidence. -9- Firstly, it has not been shown as to how the President of Panchayat and Patwari will be helpful in proving the case of plaintiff and secondly there is no mention of the details of documents sought to be proved through proposed witnesses. 21. I found no material on record which may suggest any illegality, much less perversity in the findings returned by the Courts below. Thus, there is no reason to interfere in the impugned judgment. Substantial questions as reproduced above are answered accordingly. 22. In result, the appeal is dismissed. The judgment and decree dated 23.9.2014, passed by the learned Additional District Judge (II), Kangra at Dharmshala in Civil Appeal No. 2-J/2014, affirming the judgment and decree dated 10.12.2013, passed by the learned Civil Judge (Jr. Division) Jawali, District Kangra, in Civil Suit No. 07/2003, is further affirmed. No orders as to costs. Pending applications, if any, also stand disposed of. Records be sent back forthwith. (Satyen Vaidya) 3rd September, 2025. Judge (kck)