1 2025:CGHC:58490 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 48 of 2018 1 - Maahangu S/o Chandru Aged About 63 Years Occupation - Agriculturist, Caste - Muriya, R/o Vilage Badrenga, Tahsil - Lohandiguda, Distt. Bastar, Chhattisgarh, District : Bastar(Jagdalpur), Chhattisgarh 2 - Hari S/o Chandru Aged About 65 Years Occupation - Agriculturist, Caste - Muriya, R/o Vilage Badrenga, Tahsil - Lohandiguda, Distt. Bastar, Chhattisgarh, District : Bastar(Jagdalpur), Chhattisgarh 3 - Khuja S/o Dhursai Aged About 43 Years Occupation - Agriculturist, Caste - Muriya, R/o Vilage Badrenga, Tahsil - Lohandiguda, Distt. Bastar, Chhattisgarh, District : Bastar(Jagdalpur), Chhattisgarh 4 - Boti S/o Dhursai Aged About 40 Years Occupation - Agriculturist, Caste - Muriya, R/o Vilage Badrenga, Tahsil - Lohandiguda, Distt. Bastar, Chhattisgarh, District : Bastar(Jagdalpur), Chhattisgarh 5 - Dhoi S/o Chaitu Aged About 61 Years Occupation - Agriculturist, Caste - Muriya, R/o Vilage Badrenga, Tahsil - Lohandiguda, Distt. Bastar, Chhattisgarh, District : Bastar(Jagdalpur), Chhattisgarh ... appellant(s) versus 1 - Sukali D/o Chaitu Aged About 60 Years Caste - Muriya, R/o Village Badrenga, Tahsi - Lohandiguda, Distt. Bastar, Chhattisgarh, District : Bastar(Jagdalpur), Chhattisgarh 2 - State Of Chhattisgarh Through - The Collector, Jagdalpur, Distt. Bastar (Chhattisgarh), District : Bastar(Jagdalpur), Chhattisgarh ... Respondent(s) (Cause title taken from CIS) For appellant (s) : Mr. Vikash A. Shrivastava, Advocate For Respondent/ State : Mr. Kalpesh Ruparel, Panel Lawyer SAGRIKA AGRAWAL Digitally signed by SAGRIKA AGRAWAL Date: 2026.01.06 10:46:10 +0530 2 Hon’ble Shri Justice Ravindra Kumar Agrawal, J Order on Board 02.12.2025 1. The present second appeal under Section 100 of the Code of Civil Procedure, 1908 has been filed by the plaintiffs against the impugned judgment and decree dated 25-11-2017 passed by learned Second Additional District Judge, Jagdalpur, District Bastar, in Civil Appeal No. 11-A/2017, whereby the first appeal filed by the plaintiffs has been dismissed and the judgment and decree dated 10-04-2017 passed by learned Third Civil Judge, Class-I, Jagdalpur, District Bastar, in Civil Suit No. 95-A/2012, has been affirmed. 2. The plaintiffs have filed a Civil Suit for declaration of title and possession holder of the suit property of 12.260 hectares of land situated at village Badrenga, Tahsil Lohandiguda, District Bastar, shown in Schedule “A” annexed with the plaint, permanent injunction, and the mutation order dated 07-06-2011 passed by Tahsildar, Lohandiguda, be declared as null and void. It is pleaded in the plaint that the parties belong to the Muriya caste and are members of the Scheduled Tribes community. The suit property of Schedule “A” of the plaint was acquired by the great-grandfather of the plaintiffs No. 1 to 4, father of the plaintiff No. 5 and father of defendant No. 1, namely Chaitu, in succession, and they are in joint possession of the same till date. As per the customs of the community of the parties, if the son is in the family, the daughters have no right or title over the ancestral property. After the death of Chaitu, the suit property was recorded in the name of the parties. On 15-04- 2011, the defendant No. 1 filed an application before the Tahsildar, Lohandiguda, for mutation of her name in the revenue records of the suit property, which was allowed on 07-06-2011 and her name is ordered to be mutated. The appeal filed before the SDO (Revenue), Jagdalpur, is pending, in which an interim order was passed. In the meantime, the defendant No. 1 3 has filed an application for partition of the suit property as per his order dated 07-06-2011, which gives cause of action to file the present suit of the plaintiffs, and ultimately, the suit is filed. 3. The defendant No. 1 contested the claim of the plaintiffs and denied the plaint averments and pleaded in the written statement that Chaituram had performed two marriages. The first wife was Sonadai, from whom the father of plaintiffs No. 1 to 4 was born. After the death of the first wife, a second marriage was performed with Budni Bai, from whom the plaintiff No. 5 and defendant No. 1 were born. The father of plaintiffs No. 1 to 4 left Chaitu and started residing separately, and the plaintiff No. 5 was also residing at his matrimonial house at village Kawadgaon, then the defendant No. 1 had taken care of Chaitu. She was married to Samalu of the village Badrenga and started residing as Ghar-Jamai. He denied the claim of the plaintiffs and claimed her title also in the suit property. 4. The defendant No. 1 also filed her counter-claim for declaration of her equal share and possession over the suit property and entitlement of partition, with the pleading that in the Muriya Caste, there is a custom that if the daughter marries and her husband resides as Ghar-Jamai, then she is also entitled to an equal share of the property. The husband of the defendant No. 1 was also a Ghar Jamai, and her father had given her 2.00 acres of land for her livelihood, and she had filed an application for mutation of her name in the revenue records. The other members of the Muriya Community have got the property from their father, whose husband is residing as Ghar-Jamai. Therefore, the defendant No. 1 claimed her right, title and possession over the suit property along with the plaintiffs. 5. The counter-claim filed by the defendant No. 1 was denied by the plaintiff by filing their written statement with the pleading as made in the plaint, and pleaded that as per the prevailing customs of their family, the defendant No. 1 is not entitled to any property of her father. 4 6. The learned trial Court framed issues on the basis of the pleadings of the parties and proceeded with the trial of the case. The plaintiffs have examined Dhoi (plaintiff No. 5) as P.W. 1 and Raturam, P.W. 2. They relied upon the documents of Kishtabandi Khatoni/B-1 Ex. P-1, Khasara Panchsala Ex. P-2, Order sheet of Tahsildar, Lohandiguda, dated 15-04-2011 to 07-06-2011 Ex. P-3, order of Tahsildar dated 07-06-2011 Ex. P-4, mutation application of defendant No. 1 Ex. P-5, application for partition of the suit property Ex. P-6, order sheet of Tahsildar, Lohandiguda, dated 05-09-2011 to 23-01-2012 Ex. P-7. 7. The defendants have examined Sukli Bai D.W.1, Rainu D.W. 2, and Malik Ram D.W. 3. They have not relied upon any documents. 8. After hearing the parties, the learned trial court, vide its judgment and decree dated 10-04-2017, dismissed the suit of the plaintiff and partly decreed the counter-claim of the defendant No. 1, and granted the decree of title and possession over 2.00 acres of the suit land and held that she is entitled to partition of her property. The learned trial Court held that the plaintiffs have failed to prove that in the Muriya community, the daughters have no right or title over the ancestral property if son is there in the family. The father of the defendant No. 1 had given 2.00 acres of land to her for her livelihood, and her husband was residing as Ghar-Jamai. 9. The judgment and decree passed by the learned trial Court was challenged by the plaintiffs before the learned first appellate court. Though the plaintiff has not clarified whether the first appeal is filed against dismissal of his suit, or partly allowing the counter-claim of the defendant No. 1 or against both, but the appeal was entertained by the learned first appellate court. The learned first appellate court has also dismissed the appeal filed by the plaintiffs and affirmed the judgment and decree of the trial Court. Hence, this second appeal. 5 10. Learned counsel for the appellant would submit that the parties are governed by their own customs prevailing in their community, and as per their custom, the daughters have no right or title over the property of their father if there is any son in the family. There is no custom that the daughters would be allotted a share of land if their husband is residing as Ghar Jamai. The husband of the defendant No. 1 was not Ghar Jamai, and she is residing at her matrimonial house. He would also submit that there is no document that the father of the defendant No. 1 had given 2.00 acres of land to her, and there is no specification of the said 2.00 acres of land, and she is not in possession, yet the decree has been granted in her favour. The learned trial Court, as well as the first appellate Court, have misinterpreted the evidence produced by the parties and have passed the decree by dismissing the suit of the plaintiffs and partly allowing the counter-claim of the defendant No. 1. Both the learned Courts below should have drawn an adverse inference against the defendant No. 1, but a decree has been passed in her favour. Therefore, the second appeal involved the substantial question of law about prevailing custom in the community of the parties. 11. I have heard learned counsel for the plaintiffs/appellants and perused the records of the learned trial Court and first appellate Court and gone through the judgments passed by them. 12. The plaintiff’s case is that the daughters have no right or title over the property of their father if their son is in the family. The defendant No. 1’s case is that, as per the custom of the family and community, the daughters are also entitled to a share of the property if her husband is residing as Ghar Jamai, and the husband of defendant No. 1 is residing as Ghar Jamai, and her father had given 2.00 acres of land for her livelihood. Both parties have pleaded that they are governed by their own custom. It is not in dispute that the defendant No. 1, Sukeli Bai, is the daughter of Chaitu. 6 13. With respect to the customs of the family and the Muriya community, the parties led their oral evidence. P.W. 1, Dhoi, who is the plaintiff No. 5 and the real brother of the defendant No. 1, stated in his evidence that he too had gone to village Kawadgaon as Ghar Jamai and still resides there as Ghar Jamai. He admitted that in the Muriya caste, the persons keep Ghar Jamai who have two or three daughters. He also admitted that one Udal had married Gagni Bai and gone to the village Puspal as Ghar Jamai, and 5-6 acres of land were given to him by his father-in-law. He further admitted that Sonaru Muriya married Hungi Bai and resided at village Kilepal Sargiguda as Ghar Jamai, Ratan married Gajbati Bai and resided at village Jadighat Hathidarha as Ghar Jamai, and all of them were given land by their father-in- law to earn their livelihood. He showed his ignorance as to whether his father Chaitu had given 2.00 acres of land to the defendant No. 1 or not. By his evidence, he admitted the custom that in the Muriya community, there is a custom of Ghar Jamai, and lands are being allotted to them to earn their livelihood. 14. P.W. 2, Ratu Ram, also stated that he did not know as to the husband of defendant No. 1 was residing as Ghar Jamai or not. He admitted that the plaintiff No. 5, Dhoi, had also gone to his matrimonial house as Ghar Jamai, and he was given land by his father-in-law to earn his livelihood. His brother Ratan also resided as Ghar Jamai at village Jadighat Hathidarha, and he was also given land by his father-in-law for his livelihood. 15. From the evidence of the plaintiffs themselves, the custom that the Ghar Jamai are to be allotted lands by their father-in-law to earn their livelihood is found to be proved. 16. The defendant No. 1 has stated in her evidence that her husband is also residing as Ghar Jamai and her father had given 2.00 acres of land out of total 12.26 acres of land to earn their livelihood. Though she admitted that she has not filed any document with respect to allotment of the lands to 7 Ratan, Udal, Sonaru, Mahangu and Dhoi, who are residing as Ghar Jamai, but the plaintiff No. 5 has admitted in his evidence the fact of allotment of land to Ghar Jamai. She denied that the daughters have no right or title over the property of their father. 17. From the admitted facts and evidence of the parties, the learned trial court comes to the conclusion about the existence of custom in the Muriya community and the family of the parties that the daughters are allotted lands for their livelihood, who are residing along with their husbands as Ghar Jamai. The learned trial Court also found that the evidence of the defendant No. 1, that her father had given her 2.00 acres of land for their livelihood, which could not be rebutted in the evidence. The plaintiff has not specifically denied the allotment of 2.00 acres of land to the defendant No. 1, but stated that he did not know about the allotment of any land to her by their father, Chaitu. Therefore, under the preponderance of probability, and under the prevailing custom of the family and community of the parties, the allotment of 2.00 acres of land to the defendant No. 1, by her father, is considered and passed the decree in her favour with respect to title and possession over the 2.00 acres of land and entitled her for partition of the suit property to that extent. Accordingly, the learned first appellate Court has also considered the evidence and prevailing custom in the family of the parties and has affirmed the judgment and decree passed by the learned trial Court and dismissed the first appeal. 18. Recently, the Hon’ble Supreme Court in the matter of “Ramcharan and Others v. Sukhram and Others”, 2025 SCC Online SC 1465, has dealt with the situation where either party could not establish the particular law of a community or custom, and then the principle of justice, equity and good conscience would be applicable. In para 15 to 17 and 29 of its judgment, it has been held that:- 8 15 . Given the above situation that neither any particular law of a community nor custom could be brought into application by either side, we now proceed to examine the argument advanced before the High Court that is the principle of justice, equity, and good conscience. These principles find statutory recognition in the Central Provinces Laws Act, 1875, Section 6 whereof is extracted herein below:- 6. In cases not provided for by Section five, or by Rule in cases any other law for the time being in force, the Courts shall act according to justice, equity and good conscience. 16. At the outset, it is observed that regarding the 1875 law, the impugned judgment notes that the same has been repealed as of March 2018 and, therefore, cannot be applied. We find this position to be mistaken. The Repeal Act No. 4 of 2018 provides for a saving clause, which reads as under:- 4. Savings.- The repeal by this Act of any enactment shall not affect any other enactment in which the repealed enactment has been applied, incorporated or referred to; and this Act shall not affect the validity, invalidity, effect or consequences of anything already done or suffered, or any right, title, obligation or liability already acquired, accrued or incurred, or any remedy or proceeding in respect thereof, or any release or discharge of or from any debt, penalty, obligation, liability, claim or demand, or any indemnity already granted, or the proof of any past act or thing; nor shall this Act affect any principle or Rule of law, or established jurisdiction, form or course of pleading, practice or procedure, or existing usage, custom, privilege, restriction, exemption, office or appointment, notwithstanding that the same respectively may have been in any manner affirmed or recognised or derived by, in or from any enactment hereby repealed; nor shall the repeal by this Act of any enactment revive or restore any jurisdiction, office, custom, liability, right, title, privilege, restriction, exemption,usage, practice, procedure or other matter or thing not now existing or in force. (Emphasis supplied) 17. The effect of Section 4 is clear that no right having been accrued prior to the repeal of the Act shall be affected thereby. As we have already observed, the parties to the instant lis are neither governed by Hindu nor Muslim laws and, therefore, would be covered by Section 6 of the 1875 Act. So, the right having been accrued in favour of the Appellant-Plaintiffs' mother upon the death of her father, which was approximately 30 years before the filing of the plaint became crystallized and would not be affected by the fact that the Act was no longer in the statute book. This Act, therefore, necessarily had to be applied by the High Court. At this juncture, it is pertinent to consider the meaning of 'justice, equity and good conscience' 29. In view of the above discussion, we are of the firm view that in keeping with the principles of justice, equity and good conscience, 9 read along with the overarching effect of Article 14 of the Constitution, the Appellant-Plaintiffs, being Dhaiya's legal heirs, are entitled to their equal share in the property. The judgments of the Courts below are accordingly set aside to that extent. The civil appeal is allowed accordingly. 19. The coordinate bench of this Court, in the matter of “Daduram v. Bhuri bai (dead) Th. LRs Tirith Kumar and Others”, S.A. No. 270/2003, decided on 06-02-2019, has discussed the justice, equity and good conscience. In para 19 of its judgment, it has been held that:- 19. Now, the question is what is meaning and significance of the expression “justice, equity and good conscience”. The Formula "Justice, Equity and Good Conscience"—The origin of the formula lie in the Romeo canonical sources, way back in the 16th Century. Late the formula was applied in Italy, Germany and France. It appealed the English legal system which modified and incorporated it in their own system. The preamble to the Act of Succession enacted in 1536 used the expressions "Equity, reason and good conscience". The East India Company carried the principle to India. In 1688, the Judges appointed in Bombay under the Company's Law were "to behave themselves according to good conscience". The Royal Charters of 1683, 1687, 1726 and 1753 also used the expressions "Equity and Good Conscience" and "Justice and Right". The Regulation of 1781 enjoined that in all cases for which no directions were given the respective Judge "do act according to justice, equity and good conscience". The principles were to be applied where positive law or custom did not assist the Court to dispense judicial Justice. Indeed, the term "Justice'' eludes a precise definition. It means the constant and perpetual disposition to render to every man his due. The Courts are to administer "commutative justice" and "distributive justice" as well. The expression "commutative justice" means that virtue whose object is to render to every one what belongs to him, as nearly as may be, or that which governs contracts. To render commutative justice, the judge must make an equality between the parties, so that no one may be gainer by another's loss. The expressions "distributive justice" means that virtue whose object is to distribute rewards and punishments to each one according to his merits, observing a just proportion by comparing one person or fact with another, so that neither equal persons have unequal things nor unequal persons things equal. "Equity' is a system of law or rules more consonant than the ordinary law which opinions current for the time being as to a just regulation of the mutual rights and duties of men living in a civilized society, vide Halsbury's Laws of England, 3rd Edn,, Vol. 14, p. 464. "Equity' according to Blackstone means "that portion of remedial justice which was formerly exclusively administered by a court of Equity as contra-distinguished from that portion which was formerly exclusively administered by a court of common law” – vide Blackstone's 10 Commentaries, 429-437. The meaning of the expressions "Justice, equity and good conscience” was summed up by Lord Hobhouse in Waghela Rajsanji v. Shekh Masludin (1887) 13 Ind. Appl. 89(96). "Justice, equity and good conscience" could be interpreted to mean the rules of English Law and found applicable to Indian society and circumstances". (See U. Bransly Nongaiang v. U. Drolishon Syiemiong and others1) 20. In the present case, it is not in dispute that defendant No. 1 is the real sister of the plaintiff No. 5 and stepsister of plaintiffs No. 1 to 4, born from Chaitu. Her husband had resided as a Ghar jamai, and her father had given 2.00 acres of land for their livelihood. The custom of the family has been admitted by the plaintiff No. 5 in his evidence. Even otherwise, under the principles of justice, equity and good conscience, the defendant No. 1 is entitled to a share of the property of her father, which has been decreed by the learned trial Court and the first appellate Court. 21. This Court does not find any illegality or perversity to interfere with the impugned judgment and decree passed by the learned trial court and first appellate Court, and there is no question of law, much less a substantial question of law, involved in the appeal for its determination. Accordingly, the present second appeal is dismissed without notice to the other side. 22. No order as to cost(s). Sd/- (Ravindra Kumar Agrawal) Judge sagrika 1 (1986) 2 Gauhati Law Reports 487