Judgment A.K.Prasad, J. 1. This Letters Patent Appeal is by the plaintiffs. They brought Partition Suit No. 182/62 of 1978-82 in the Court of the Subordinate Judge, Ranchi, for partition of their share in the suit properties fully described in Schedules-A and B to the plaint, situated at village Reladih, within P.S. Bundu district Ranchi, The suit was dismissed. Aggrieved by it, they preferred P.A No. 13 of 1983 (R) before this Court, which was also dismissed by learned Single Judge, by the impugned judgment dated 22.12.1989. 2. The genealogical table as set out in the plaint and detailed below depicts the relationship between the parties: 3. It is admitted fact that during C.S. Operation (1902-1910) the mundari khuntkatti tenure of the family was recorded in Khewat No. 5 (which corresponds to R.S. Khewat No. 3) and Bakast lands in Khata No. 1 were recorded in the names of Hemanti Singh Munda and Gandharv Singh Munda, sons of Mohim Singh Munda. It is not in dispute that in Revisional Survey (1927-1935) Khewat No. 3 and Khata No. 1 were recorded exclusively in the name of Gandharv Singh Munda. 4. It is the case of the plaintiffs-appellants that the parties are Mundas by caste and belong to Scheduled Tribe and are governed by their customary law of inheritance and the entries were made in the revisional survey settlement record-of-rights in good faith and the parties jointly inducted tenants on Mundari Khuntkatti tenure lands and the Bakast lands are in joint cultivating possession of the parties. According to the plaintiffs, there has been no partition of the joint family properties either in respect of the tenure property or the Bakast lands. Their case is that the plaintiffs and defendants 6 to 8 being the descendants of Bhura Babu alias Munda Singh Munda and Udhav Babu, the two sons of Mohim Singh Munda, have half-share in the suit properties whereas the other half-share thereof is that of defendants 1 to 5. 5. Defendants 1 to 5 resisted the suit contending, inter alia, in their joint written statement that a suit for simple partition was not maintainable; that it was in the garb of a suit for declaration of title and recovery of possession; that it was barred by limitation, adverse possession, ouster and by the principles of res-judicata, waiver, acquiescence and estoppel. Defendants 1 to 5 resisted the suit contending, inter alia, in their joint written statement that a suit for simple partition was not maintainable; that it was in the garb of a suit for declaration of title and recovery of possession; that it was barred by limitation, adverse possession, ouster and by the principles of res-judicata, waiver, acquiescence and estoppel. The contesting defendants further contended that Hemanti Singh Munda had married a Khangar lady, which was prohibited in Munda community, and Hakim Singh, Bhura Babu alias Munda Singh, and Udhav Babu (the ancestors of the plaintiffs and defendants 6 to 8 born to Hemanti Singh Munda through the Khangar lady were his illegitimate sons; that after the death, of Manki Memant Singh Munda without any legal issue his younger brother Gandharv Singh Munda became the Manki and exclusive owner of the entire Mundari Khuntkatti tenancy as recorded in R.S. Khewat No. 3; that the predecessors-of-interest of the plaintiffs and defendants 6 to 8 were merely Khorposhdars (maintenance holders) and defendant No. 1 being the grandson of Gandharv Singh Munda is the exclusive owner of the lands in suit and that the plaintiffs and defendants 6 to 8 have no right, title or interest in the suit properties as they are descendants of illegitimate sons of Hemanti Singh Munda. The further case of the defendants is that according to the family and customary law governing Mundari Khuntkattidars, the properties of a Manki is inherited by his eldest son and in the said family, the law of lineal primogeniture is prevalent. They further alleged that there was a title suit being T.S. No. 20 of 1922 between Manki Gandharv Singh Munda on one hand and Hikim Singh, Bhura Singh alias Munda Singh Munda and Udhav Babu on the other, which was terminated by compromise and Gandharv Singh Munda had given some lands to them in Khorposh (area 14.47 acres) which came to be recorded in R.S. Khewat No. 4 of the village under Manki Gandharv Singh, owner of R.S. Khewat No. 3. The contesting defendants denied that predecessors of the plaintiffs and defendants 6 to 8 had ever exercised their right as co-owners with Gandharv Singh Munda or his heirs with respect to the suit properties or that there was unity of title of possession between the parties. (emphasis added). 6. The contesting defendants denied that predecessors of the plaintiffs and defendants 6 to 8 had ever exercised their right as co-owners with Gandharv Singh Munda or his heirs with respect to the suit properties or that there was unity of title of possession between the parties. (emphasis added). 6. The trial Court on consideration of the evidence, both oral and documentary, adduced by the parties and the materials on record held that there could be no valid marriage between Hemanti Singh Munda and his Khangar wife Sukormani Devi and the sons born out of the wedlack, namely, Hikim Singh Bhura Babu and Udhav Babu, were the illegitimate sons of Hemanti Singh Munda and they were not entitled to succeed to his propertied and the plaintiffs and defendants 6 to 8 being their descendants had no right, title or interest in the suit properties. The trial Court further held that law of lineal primogeniture was not prevalent amongst the Mundas; that in view of the compromise decree (Exhibit G) the entry in the exclusive name of Gandharv Singh Munda was made in Khewat No. 3; that there was no unity of title and possession between the parties; that the suit was barred by estoppel, waiver, acquiescence and res-judicata and that a. simple suit for partition was not maintainable. Ultimately, the suit was dismissed. 7. Being aggrieved by the verdict of the trial Court, the plaintiffs preferred F.A. No. 13 of 1983 (R). In that appeal, the learned Single Judge formulated the following questions: (1) Whether the inheritance and succession in respect of a Mundari Khunt Khatti tenancy is governed by rule of lineal primogeniture? (2) Whether the plaintiffs and the defendants No. 6, 7 and 8 did not inherit the properties in suit as Khemanti Singh Munda, allegedly married a Khangar lady? (3) Whether the plaintiffs having accepted themselves or the Khorposhdars under the defendants, are estopped and precluded from challenging their title? 8. The learned Single Judge answered in negative that the families of the parties were governed by the rule of lineal primogeniture under the family custom. (3) Whether the plaintiffs having accepted themselves or the Khorposhdars under the defendants, are estopped and precluded from challenging their title? 8. The learned Single Judge answered in negative that the families of the parties were governed by the rule of lineal primogeniture under the family custom. Further, the learned Single Judge concurred with the finding-of trial Court that there could be no valid marriage as per the prevalent custom between a Manki Munda and a Khangar lady and under the customary rules of inheritance governing the Mundas an illegitimate son of deceased owner does not get any share in the property left by the deceased and in absence of sons, or widows or unmarried daughters of a deceased Munda, his property goes to the nearest male agnate or agnates. The learned Single Judge, inter alia, held that it was not a case -if the appellants that Hemanti Singh Munda had given up his Khangar wife and his sons were recognised and accepted by the members of the Munda tribe; that Hakim Singh, Bhura Babu alias Munda Singh. Munda and Udhav Babu (the defendants), the predecessors of the plaintiffs and defendants 6 to 8, in T.S. No. 20 of 1922 admitted the title of Gandharv Singh Munda to the properties in dispute (in that suit) in the compromise decree (Exhibit G); they accepted five plots of land in Khorposh and abandoned their claim with regard to other proprio vigore in favour of Gandharv Singh Munda and on the basis of such compromise, the name of Gandharv Singh Munda alone was recorded in the Revisional Survey Settlement record-of-rights, which was never challenged by the Plaintiffs and defendants 6 to 8 before any competent authority; that the admission made by the predecessors-in-interest of the plaintiffs in the compromise decree would be admissible against them propriavigore in relation to the properties in suit; that the fact that the properties in suit in the Revisional Survey Settlement record-of-rights have been recorded in the name of Gandharv Singh Munda alone is pointer to the fact that the compromise decree (Exhibit G) was acted upon and presumption of correctness attaches to such entries in terms of Sec. 84(3) of the Chotanagpur Tenancy Act, 1908. Ultimately, the learned Single Judge concurred with the finding of the trial Court that there was no unity of title and possession amongst the parties and a simple suit for petition without a prayer for declaration of title and recovery of possession was not maintainable and consequently the First Appeal was dismissed. 9. While pressing the L.P.A. Mr. N.K. Prasad, learned Sr. Counsel for the appellants, raised the following points: (i) That in view of the fact that in Tamar area Khangars, known as Patars in Temar, have been held to be sub-tribe of Mundas, vide AIR 1971 SC at page 2538 Bhaiya Ram Munda V/s. Anirudh Patar, there could be no absolute prohibition in marriage of a Munda in one of his sub-tribes/sub-castes and that the expression" hut a Munda will, not marry even into a Khangar family, although Khangars are believed to have originally formed one tribe with the Mundas (in Sarat Chandra Roys book the Mundas and their country, at page-250) does not mean that inter-caste marriage is prohibited between a Munda and a Khangar lady (underline-emphasis added by me). Hence, Hukim Singh, Bhura Babu alias Munda Singh Munda and Udhav Babu, though born from a Khangar lady are to be treated as legitimate and not illegitimate sons of Hemanti Singh Munda and the plaintiffs and defendants 6 to 8 being their descendants are entitled to their share in the suit property by inheritance. Further, according to him, there is presumption of legitimacy of children. Alternatively, Mr. Prasad argued that even if Hikim Singh, Bhura Babu alias Munda Singh Munda and Udhav Babu, are treated to be illegitimate sons of Hemanti Singh Munda, the plaintiffs and defendants 6 to 8 being their descendants are entitled to the share in the suit properties. (ii) Lastly, Mr. Prasad contended that there was settlement of rival claims by give and take under the compromise decree (Exhibit G) and it cannot be taken as admission binding the plaintiffs in the present suit and an admission does not create or extinguish title. On the other hand, Mr. Debi Prasad, learned Sr. Counsel for the respondents, has resisted the appeal. Prasad contended that there was settlement of rival claims by give and take under the compromise decree (Exhibit G) and it cannot be taken as admission binding the plaintiffs in the present suit and an admission does not create or extinguish title. On the other hand, Mr. Debi Prasad, learned Sr. Counsel for the respondents, has resisted the appeal. While refuting the arguments advanced by the learned Counsel for the appellants, he has asserted that the marriage between the Munda and a Khangar lady is prohibited and the offsprings of such wedlock are illegitimate and according to the Munda custom, an illegitimate son is not entitled to inherit the property of the father, but he may claim maintenance. He further argued that the admission made by the predecessors-in-interest of the plaintiffs in the compromise decree (Exhibit G) is admissible against the plaintiffs proprio vigore in relation to the suit property. 10. Learned Counsel for the appellants in the instant appeal did not dispute that Hikim Sigh Munda, Bhura Babu alias Munda Singh Munda and Udhav Babu were born to Hemanti Singh Munda through Sukhmoni, a Khangar lady, who was the second wife. This fact was also not challenged by the appellants before the learned Single Judge. In their joint written statement in T.S. No. 20 of 1922 Hikim Singh Munda, Bura Babu alias Munda Singh Munda and Udhav Babu admitted that their mother was a Khangar by birth (Exhibit F). 11. The crucial point which arises for determination in the instant appeal in whether the marriage of a Munda with a Khangar lady, according to the Munda custom, was permissible. One may reproduce the view of Sri Sarat Chandra Roy on the subject in his book Mundas and their Country at page-250 (reprinted in 1995) which runs thus: But a Munda will not marry even into a Khangar family, although Khangars are believed to have originally formed one tribe with the Mundas. The reason asserted is, that Khangars were ex-communicated in the days of tradition for having eaten unclean meat. In Parganas Bundu, and Tamar, these Khangar Mundas are known as Pator Mundas, in parts of Khunti Thana as Mahli Mundas, in Singhbhum as Tamarias, in Gangpur as Bunduars, and in Pargana Belkaddi by significant name of Marang Mundas" (underline-emphasis added by me). The shows that inter-marriage between a Munda and Khangar lady is prohibited. In Parganas Bundu, and Tamar, these Khangar Mundas are known as Pator Mundas, in parts of Khunti Thana as Mahli Mundas, in Singhbhum as Tamarias, in Gangpur as Bunduars, and in Pargana Belkaddi by significant name of Marang Mundas" (underline-emphasis added by me). The shows that inter-marriage between a Munda and Khangar lady is prohibited. In another book "Encyclopaedia Mundarica" (Vol. IX) by John Hoffman and Arthur Van Emelen, at page-2881, the Mundas are described as follows: Munda...namex which has been given to the Mundas by the Hindus, and is exclusively used by all but the Mundas themselves. They, as a rule, call themselves Horoko (or Hoko, in Singhbhum), though they use also the term Munda. The latter is the one always used as post. In the-following differentiations : Kumput Munda, the ordinary Mundas; the Mundas of the Ranchi plateau; Ho, Homunda, Larka, Larkamunda, the Hos or Mundas of central Singhbhum, not a different tribe, they eat and inter-marry with the ordinary Mundas; Uranmunda, the scattered Mundas of the Oraon country, not a different tribe, they may eat and inter-marry with the ordinary Mundas, but they have forgotten their mother tongue and speak Sadani; Erenquamunda, a separate tribe of wild Mundas; Birmunda, generally called Biruru or, Birhore by the Mundas, the Birhors, a separate tribe living nomadically in the Jungles; Mahali, Mali, Mahalimunda, Malimunda, Khangar, Khangarmunda, Tamadia, Tamadiamunda, the elder branch of the Mundas, a separatetribe, inhabiting mostly Tamar; Santara Saotara, Saotaramunda, the Santals; Meramunda, the Mundari speaking Oraons living arougn Ranchi. In the same work at page-2756, the authors have expressed the view, which is extracted as under: Mahali, Mahali-munda, Mundamahali, Nag. Mali, Malimunda, Munda-Mali Has. Maran Munda Has Nag. sbst., a Munda of the elder branch. They form a separate tribe with whom intermarriage is prohibited to the members of the younger branch (the Kompat Mundas and the Hos) though they may eat rice prepared by a Mahali provided the salt be served up separately.... In the aforesaid connection, one may also usefully refer to the following extract from Bihar District Gazetteers of Ranchi, 1970 publication on Mundas (at page 129): The Mundas are divided into two branches. The elder branch comprises the Mahali Mundas, also called Tamarias (or Tamadias) because of their habitation in the Tamar country, who form a separate tribe with whom the other Mundas (including the Ho Mundas) refuse to inter-marry. The elder branch comprises the Mahali Mundas, also called Tamarias (or Tamadias) because of their habitation in the Tamar country, who form a separate tribe with whom the other Mundas (including the Ho Mundas) refuse to inter-marry. Another branch is subdivided into Kompat Mundas (generally called Mundas) and the Ho Mundas (simply called Hos). These two divisions comprise the main body of the Mundas and the Hos of Singhbhum though geographically detached are part of the same tribe. Thus from the authorities cited above, it is evidently clear that the marriage between Munda and a Khangar lady is prohibited under the customary law governing the Mundas. The learned Counsel for the appellants has not placed any authority to the contrary. One may bear in mind that in latter part of Nineteenth Century and in early part of the present Century the custom governing the marriage within the Munda community must have been observed with full vigour. Here, one may extract a passage (at pages-85-86)from the book, namely, The Changing Munda (1979 publication) of Dr. Sachchidananda, a well known anthropologist, which is as under: SOCIAL STRATIFICATION In Tamar although the Munda belong to a single tribe, deep-seated social stratification has come to be formed. Such special distinction may be the result of their long contract with the semi-feudul Hindu castes living among them six distinct classes may be distinguished. These may be grouped into two e.g. (a) the Zamindars or landlords, and (b) the tenants. In group (a) there are at the apex, landlords called Thakur who hold above fifteen villages each. Next come Manki who are lesser landlords holding up to ten or eleven villages each. Some of these then got themselves enumerated as Kshatriyas in the 1961 Census with a view to raise themselves in the eyes of their Hindu neighbours. But for all practical purposes they are Munda. Both these classes are endogamous and only in rare cases does an intermarriage take place between the two. In the third class may be placed Munda or the village headman who owns only one village either in Khutkatti right or as a lessee of the landlords. He settles lands with some members of the family and these landholders known as Babu form the fourth class of the social hierarchy. Similarly, the respective agnates of Thakur and Manki are also known as Babu. In group (b) are Munda tenants. He settles lands with some members of the family and these landholders known as Babu form the fourth class of the social hierarchy. Similarly, the respective agnates of Thakur and Manki are also known as Babu. In group (b) are Munda tenants. Intermarriage between Munda tenants and the above mentioned four classes is unusual due to great disparity in economic and social status. At the bottom of the Manda society in Tamar are the Patar, who belong to the Mahali-Mundako branch of the tribe. Though they hold small bits of land, there is no social inter-communication between them and the upper five groups. Not only is intermarriage unthinkable, but even water cannot be taken from the hands of a Patar: In Encyclopaedia Mundarica (Vol. IX) at page 2757, referred hereinabove, it is stated as under: The Mahalis are also called Tamadirin Has and especially by Hindus and in Nag., Khangar. In Tamar they are called Pators.... Sri Sarat, Chandra Roy in his book as quoted above has been expressed as follows: ...In Parganas Bundu and Tamar itself Khangar Mundas are known as Pator Mundas.... the expression Pator Munda is a synonym for Patar Munda. The observation of Dr. Sachindananda in his book The Changing Munda, cited above, is a pointer to the fact that even in the changing modern time the marriage custom within the Munda community prohibits inter-marriage between a Munda and a Khangar lady. 12. Mr. N.K. Prasad urged that there is presumption of marriage and legitimacy of children. The learned Counsel in this connection has placed reliance in S.P.S. Balasubramanyam V/s. Suruttayan alias Andali Padayachi and Ors. -- . The facts in that case were that the appellants brought a suit for declaration of title after purchasing the property in 1971 from Ramaswamy under a sale deed. The admitted wife of Chinnathambi was called Pavayee. But Chinnathambi was living with another woman having the same name, i.e. Pavayee No. 2, and Ramaswamy, a son, was born to them. Chinnathambi on basis of compromise in a suit with his brothers in year 1952 got a share in the family property and he executed a settlement deed in 1968, by which he gave the property to his wife and his children, whereby Ramaswamy got 1/3rd of the properties including the property sold to the plaintiff-appellant. Chinnathambi on basis of compromise in a suit with his brothers in year 1952 got a share in the family property and he executed a settlement deed in 1968, by which he gave the property to his wife and his children, whereby Ramaswamy got 1/3rd of the properties including the property sold to the plaintiff-appellant. The defendants resisted the suit contending, inter-alia, that Ramaswamy was not legitimate son of Chinnathambi. The trial Court dismissed the suit holding that there was no evidence about the marriage of Chinnathambi with Pavayee No. 2. But the appellate Court decreed it, which was reversed by the High Court in second appeal. The plaintiff applied to the Apex Court. The Apex Court held that since Chinnathambi and Pavayee No. 2 continuously lived within the same roof and co-habited for number of years, law would raise a presumption that they lived as husband and wife; that the presumption was not destroyed by the circumstance and evidence proved in the case and the appeal was allowed. In that case, the parties were governed by the Hindu Marriage Act, 1955 and validity of marriage based on custom was not at issue. In my view, the ratio of that decision in Balasubramanyam (supra) has no application to the facts of the present case. It is suffice to say that there is no presumption in favour of legitimacy of a child unless it is established that a valid marriage of the parents had taken place. It has been noticed above that the custom, governing the parties herein, prohibited the marriage between a Munda and Khangar lady. The learned Single Judge has opined that it was not a case of the appellants that the sons of Hemanti Singh Munda were recognised and accepted by the members of the tribe. 13. In Surjit Kaurv. Garja Singh and Ors. -- , it has been held that in case of customary marriage under the Hindu Marriage Act where custom is not pleaded, nor the nature of the ceremonies performed were brought out, mere living together as husband and wife would not by itself confer the status of husband and wife. In that case, the first defendant (Surjit Kaur), the widow, claimed to be the legally-wedded wife of Gulaba Singh (who was a stranger to the family) and the Karewa Nama dated October 28, 1965, had been executed. In that case, the first defendant (Surjit Kaur), the widow, claimed to be the legally-wedded wife of Gulaba Singh (who was a stranger to the family) and the Karewa Nama dated October 28, 1965, had been executed. The appeal was dismissed by the Apex Court. In B.S. Lokhande V/s. State of Maharastra AIR 1965 SC at page 1565, it was held as under: ...If the marriage is not a valid marriage, it is no marriage in the eye of law. The bare fact of a man and a woman living as husband and wife does not, at any rate, normally give them the status of husband and wife even though they may hold themselves out before society as husband and wife and the society treats them as husband and wife. 14. The learned Single Judge rightly held that Hikim Singh, Bura Babu alias Munda Singh Munda and Udhav Babu were the illegitimate off springs of Hementi Singh Munda. Sarat Chandra Roy in his work Mundas and their Country (re-printed in 1995) at page-273 while dealing with the customary rule governing inheritance amongst the Mundas states as hereunder: Illegitimate sons of the deceased owner or sons of deceased wife by the former husband, do not get any share in the property left by the deceased. But if any such son had been living in the same house with the deceased, he is sometimes given small plot of land for his maintenance, although he cannot claim this as a matter of right. He can have no legal right even to any lands that his father (the deceased owner) might have given him to cultivate.... There is no major change in this customary rule of inheritance as said by Sachidananda in his book The Changing Munda at page 94 (1979 publication). Hence, Hikim Singh, Bhura Babu alias Munda Singh Munda and Udhav Babu could not inherit the property of Hemanti Singh Munda. The plaintiffs or defendant 6 to 8 being the descendants of deceased Bura Babu alias Munda Singh Munda and Udhav Babu were not entitled to anywhere in the suit property. Sarat Chandra Roy in the aforesaid book while dealing with the rule of inheritance among Mundas at page-273, has said as follows: In absence of sons or widow or any married daughters of a deceased Munda, his property goes to the nearest male agnates. Sarat Chandra Roy in the aforesaid book while dealing with the rule of inheritance among Mundas at page-273, has said as follows: In absence of sons or widow or any married daughters of a deceased Munda, his property goes to the nearest male agnates. If the deceaseds father is alive, the property passes to him. If he is dead, the brothers of deceased owner will inherit in equal share. Gandharv Singh Munda was the sole surviving full brother of Hemanti Singh Munda. 15 It is significant that the predecessors-in-interest of the plaintiffs in the compromise decree (Exhibit G) in T.S. No. 20 of 1922 admitted the title of Gandharv Sing Munda with regard to the subject matter of that suit and by accepting some plots of land in Khorposh they accepted the fact that they were not entitled to inherit the estate of deceased Hemanti Singh Munda. It is equally significant that the predecessors-in-interest of the plaintiffs were inducted on small area of land measuring 14.47 Acres on payment of cess only by Gandharv Singh Munda vide Exhibit C/1. This supports the inference that the got they land as Khorposhdars. The admissions made by the predecessors-in-interest in the compromise decree in the previous suit (Exhibit G) as held by the learned Single Judge, will bind the plaintiffs in the present lis. The learned Single Judge has rightly held that the compromise decree (Exhibit G) was acted upon and that there was no unity of title and possession amongst the properties and simple suit for partition was not maintainable. 16. There is no reason to disagree with the findings arrived at by the learned Single Judge. 17. In the result, there is no merit in this appeal and it is dismissed. However, in the facts and circumstances of the case, the parties and directed to bear their own cost in this appeal. R.A.Sharma, J. 18 I agree.