JUDGMENT : I.A. No. 7533 of 2018 1. The instant interlocutory application has been filed under Section 5 of the Limitation Act for condoning the delay of 15 days in preferring the present appeal. 2. Having regard to the reasons stated in para-5 onwards of the instant interlocutory application, I.A. No. 7533 of 2018 stands allowed and disposed of. Delay of 15 days in preferring the appeal is hereby condoned. Second Appeal No. 153 of 2016 3. Heard learned counsel for the appellant. 4. The appellant is defendant no. 2. 5. The Suit being Partition Suit No. 183 of 2006 had been instituted by the plaintiffs (respondent nos. 1 to 4 in the present appeal) for partition of the suit land, claiming 1/3 share. 6. The case, as set out by the plaintiffs in the plaint that the common ancestor Somra Munda was the holder of the property. Somra Munda had three sons namely Jhari Munda, Sukar Munda and Kundan Munda. Plaintiffs are descendant of Sukar Munda. Original defendant no. 3 is Kundan Munda. Two sons of Jhari Munda are original defendant nos. 1 and 2. 7. The claim had been resisted by the original defendant nos. 1 and 2, who are the son of Jhari Munda. They had disputed the status of the plaintiffs and original defendant no. 3 by taking plea that they are sons of Somra Munda from concubine and not from the legally wedded wife, as such, they are not the family members and are not entitled for share in the suit property. 8. Defendant no. 3, Kundan Munda had supported the case of the plaintiffs. 9. On the basis of the pleadings of the parties, following issues had been framed by the Trial Court: 1. Is the suit maintainable in its present form? 2. Is the suit bad for non-joinder and mis-joinder of necessary parties? 3. Is there any cause of action for the partition suit? 4. Is the suit barred by the principals of waiver and adverse possession? 5. Is there any unity of title and possession between the parties to the partition suit ? 6. Is the plaintiff entitled for any share in the suit property? 7. Is the plaintiff entitled for the relief or reliefs as prayed for?” 10. The specific findings had been recorded by the Trial Court that there is unity of title and possession over the suit land. 6. Is the plaintiff entitled for any share in the suit property? 7. Is the plaintiff entitled for the relief or reliefs as prayed for?” 10. The specific findings had been recorded by the Trial Court that there is unity of title and possession over the suit land. Sukar Munda and Kundan Munda are sons from legally wedded wife and as such, they are entitled for their share in the suit property. On the strength of above findings, 1/3 share had been allotted to each branch and accordingly, preliminary decree had been drawn. 11. Being aggrieved, the defendant nos. 1 and 2 had preferred Title Appeal No. 45 of 2014. The Appellate Court, after re-appreciating the entire evidences had recorded the findings on the issues framed by the Trial Court. The findings recorded by the Trial Court had been approved and accordingly, preliminary decree had been affirmed. Thus, the present second appeal has been filed before this Court by the appellant, who is original defendant no. 2. 12. At this stage, learned counsel for the appellant has submitted that from the pleadings of the parties, it is evident that the parties are Mundas and governed by the local customary law. It has been submitted that as per the local customary law, Mundas are governed by special law of inheritance. Eldest son is entitled to inherit the entire property. Other brothers are only entitled for maintenance. 13. For that purpose, learned counsel for the appellants has relied upon the judgment in the case of Naresh Kumar Singh and Ors. Vs. Gopal Singh and Ors. reported in 2003 AIR Jhar R 613. Para-2 and 3 of the said judgment are quoted hereinbelow: “2. The parties are Mundas as aboriginal tribe of Chotanagpur and suit lands are Mundari Khuntkatti lands. In C.S. Khewat No. 46 of village Landupdih. District-Ranchi, name of Rolya Munda, common ancestor of parties stood recorded as owner of Mundari Khuntkatti tenancy. Roiya Munda died leaving behind four sons, namely, Chaitan, Pirti, Jhabulal and Sukhlal. In Revisional Survey, R.S. Khewat No. 47/1 was recorded in the names of defendants 1 and 2, Gulab and Chhutu, both sons of Chaitan, R.S. Khewat No. 47/2 was recorded in the name of Pirti, father of plaintiffs Nos. Roiya Munda died leaving behind four sons, namely, Chaitan, Pirti, Jhabulal and Sukhlal. In Revisional Survey, R.S. Khewat No. 47/1 was recorded in the names of defendants 1 and 2, Gulab and Chhutu, both sons of Chaitan, R.S. Khewat No. 47/2 was recorded in the name of Pirti, father of plaintiffs Nos. 1 and 2 and grand father of plaintiffs 3 and 5: R.S. Khewat No. 47/3 was recorded in the name of Jhabulal, father-in-law of defendant No. 4 and grand father of defendants 5 to 7. Khewat No. 47/4 was recorded in the name of Sukhlal, father of defendants 8 and 9 namely. Rusu Singh and Purandar Singh. 3. Roiya Munda collected rent from raiyats within Mundari Khuntkatti tenancy and according to custom of lineal male primogeniture, which was prevailing in their family in the matter of inheritance, the senior most branch after death of Roiya Munda inherited the whole property and junior branches were allotted the portions suitable to them either in subordinate or in coordinate rights.” 14. Referring the above judgment, counsel for the appellant has raised, for the first time, before this Court, the traditional rule of inheritance on the principle of primogeniture. 15. From mere perusal of para-3 of the above judgment, it is evident that if claimant is Munda (Village Headman) of the village and receives rent from all the co-villagers and as such, he becomes holder of a post of Village Headman. The above post or social status is inheritable on the basis of primogeniture. 16. To further appreciate the Rule of inheritance, among the Mundas, having Khuntkatti rights, some of the authorities is required to be referred. 17. For better appreciation, para-188 of the Final Report on the Survey and Settlement Operations in the District of Ranchi from 1902-1910, is quoted herein below: 188. Mundari khuntkatti tenancies.-The ancient system of land tenure still survives in scattered blocks in the Munda country. The Munda system of land tenure has been fully described in a valuable note by Father Hoffman, S.J., and Mr. Lister, C.S., which will be found in Appendix I to my edition of the Chota Nagpur Tenancy Act. Father Hoffman is a missionary, who has spent 10 or 12 years in the Munda country and has made a special study of the Mundari language and Mundari social customs and land tenures. Mr. Lister, C.S., which will be found in Appendix I to my edition of the Chota Nagpur Tenancy Act. Father Hoffman is a missionary, who has spent 10 or 12 years in the Munda country and has made a special study of the Mundari language and Mundari social customs and land tenures. Mr. Lister was the Settlement Officer, who initiated the settlement operations in the district, and devoted four years of assiduous and untiring labour to the study of the agrarian question, especially in the Munda tract. For a full and complete description of the Munda land tenures, reference must be made to the note. It will be sufficient to give here brief description of a purely Mundari khuntkatti village. The khuntkattidars are the descendants in the male line of the original founders of the village, and a group of these khuntkattidars are the owners of all the land included within its boundaries. The annual rent payable was originally made up of the subscriptions (chandas) of the khuntkattidars; but the subscriptions of many of them have been reduced, and the deficits have been made good from the rents paid by the raiyats, who hold raiyati tenancies under the joint brotherhood. There is a headman in each village called the Munda, who collects the chandas and pays the rent to the superior landlord, the Manki, or his successor in interest. The Manki is the head of a patti, which is constituted usually of 10 or 12 villages. He realizes the rents from the Mundas, and pays them to the superior landlord. The Mundas and the Mankis are not landlords. The Munda is merely a village official appointed by the community for the performance of certain duties. He is a khuntkattidar himself, and one of the co-owners of the village property. As a village official only is he the head of the community. The Manki is similarly the head of a confederation of villages. The rents payable by the co-owners of the intact Mundari khuntkatti villages really represent the small tribute which the founders or their descendants agreed to pay as a subsidy for the support of their feudal chiefs. They are, therefore, generally insignificant quit-rents, and average only Rs. 19.4 per village. The system, no doubt, existed throughout the whole Munda country, but it has been broken down by processes described below throughout the greater part of the area.” 18. They are, therefore, generally insignificant quit-rents, and average only Rs. 19.4 per village. The system, no doubt, existed throughout the whole Munda country, but it has been broken down by processes described below throughout the greater part of the area.” 18. Book written by S.C. Roy, titled “THE MUNDAS AND THEIR COUNTRY” published in the year 1912 and Fourth Reprint in 2010. The contents of this book had been taken note by the Division Bench of Hon’ble Patna High Court in the case of Jena Munda vs. Dukhan Pahan reported in A.I.R. 1948 Patna 10 at paragraph-4, it has been observed that “ practically the only authority on the Munda custom is Sri S.C. Roy’s Book on the Mundas, and the Courts should therefore have confined themselves to what was laid down in that book and to the evidence.” 19. Further, this book had been taken note by the Hon’ble Apex Court in the case of N.E. Horo vs. Jahanara Jaipal Singh reported in (1972) 1 SCC 771 . Reference has been made in paragraph-15 of the said judgment. 20. Further, in the case of Bhaiya Ram Munda vs. Anirudh Patar and others, reported in 1970 (2) SCC 825 , the contents of this book has been taken note of. At page no.233 of this Book, Customary Law has been explained, which is quoted hereinbelow:- Customary Law. Having thus examined the indigenous Mundari method of administration of justice, we shall now proceed to give a brief account of the ancient customary law which still obtains amongst the Mundas and is administered by the Panch when that tribunal is resorted to. The joint family system of the Munda resembles the Hindu system. In the lifetime of the father, the sons do not generally separate from him in mess or property. Sons with their wives and children live under the paternal roof. They all join hands in cultivating the family fields, have their meals cooked in the same family hearth, and bring even their separate earnings, if any, to the common family fund. If a member of the joint family goes away temporarily to the labour districts or elsewhere, he does not lose his right to his proper share in the ancestral lands in the event of a partition during his absence. If a member of the joint family goes away temporarily to the labour districts or elsewhere, he does not lose his right to his proper share in the ancestral lands in the event of a partition during his absence. But as for the accumulated savings of the family up to the date of partition, the absentee may not claim' a share in them unless he brings his own individual earnings into the hotchpot. But no member of the family can at partition claim a higher share in consideration of any special private earnings or for any extra ordinary toil or trouble for the improvement of the joint family property. (i) Partition. As we have said, the members of an undivided Munda family share all they have, in common, till the death of the father. But, the father may, during his life-time, expel a disobedient son from his house even without giving him any movable property or share of the lands. It is optional with the father, however, to separate a son with such share of the family property as the father thinks proper. The father is now-a-days regarded as having almost absolute control over the family property during his life-time, although any disposition of family property in contravention of the customary rules of inheritance will not be binding on his heirs. The sons cannot, as of right, demand a partition during the lifetime of their father. But the father may, and sometimes does, make a partition of family property amongst his sons. This is almost always the case when the mother of the sons being dead, the father has married a second wife. At partition, the eldest son generally gets a slightly larger share than the other sons,—the excess being ordinarily one kat (sala) of land, and, in well-to-do families, a yoke of plough cattle or only one bullock or one goat, and sometimes also one ‘mora’ or bundle of paddy measuring from ten to sixteen mounds. With this difference, the sons all get equal shares of moveable and immoveable property, and a similar share of both real and personal property is taken by the father. An unmarried son, however, will get, in addition to his proper share, some cash or cattle or both by way of provision for his marriage. The cattle, and &c, which a married son received at his marriage will be given to him at partition. An unmarried son, however, will get, in addition to his proper share, some cash or cattle or both by way of provision for his marriage. The cattle, and &c, which a married son received at his marriage will be given to him at partition. Females amongst the Mundas are not entitled to inherit, but the father may in his life-time make presents of cash or moveables to a daughter, but not of lands. When, however, the father effects a partition during his life-time, an unmarried daughter usually gets some land to be held by way of maintenance till her marriage, and also a few kat of paddy for her consumption till the following harvest. Almost invariably, an unmarried daughter, after such partition, lives either under the protection of her father or of one of her brothers; and the land allotted to her by way of maintenance till her marriage, remains till then in the possession of her chosen guardian who supports her. The bride-price received at her marriage too will go to that guardian if he defrays the expenses of her marriage. This khorposh land of the sister, however, will be repartitioned amongst the brothers, after the sister’s marriage. When a Munda father, after marrying a second wife, makes a division of the family property with his sons by his first wife, there cannot be a redistribution of the lands on the birth of other sons to him by the second wife. Till the father’s death, such subsequently-born children will be maintained out of the share of their father. (ii) Inheritance. We now come to the customary law regarding inheritance amongst the Mundas. After the death of the father, if the sons do not agree to live together, a Panchayat is convened, and the property divided according to Mundari rules of inheritance. When the deceased has left behind widow and grown up sons and daughters, the Panch will first set apart some land, generally equal to a younger son’s share, for the maintenance of the widow; and, if any cash has been left by the deceased, a small sum (generally not more than twenty rupees) is paid to the widow for her subsistence till the following harvest. In the land thus allotted to her, she can only have a life-interest. In the land thus allotted to her, she can only have a life-interest. If, for the rest of her days, she lives separate from her sons and independently of any pecuniary assistance from any of them in particular, her maintenance-land will, on her death, be equally divided amongst the sons. But, in most cases, the widow prefers to live with one or other of the sons. In such a case, her maintenance-land is cultivated and practically enjoyed by that son, and if he meets all her funeral expenses, he becomes entitled to those lands. The residue of the real and personal property left by the deceased father will be divided by the Panchayat in equal shares amongst all the sons of the deceased, except that the eldest son will, in most cases, get a little land in excess, and, in well-to-do families, also one ‘mora’ of paddy besides one or two bullocks or a goat, according to circumstances. If there had been a partition during the father’s life-time, and, since then, other sons were born to the father, the entire immoveable property will on the father's death, be re-partitioned by the Panch amongst all the sons of the deceased on the principles indicated above. If, however, no son was born to the deceased father between the previous partition and his death, only the deceased father’s share will be partitioned amongst the sons. If any of the legitimate sons of the deceased, owing to his marriage with a nonmundari girl or other misbehaviour, has been outcasted and lost his tribal rights, he will not be entitled to a share at partition, unless he has been restored to caste by the Panch after he has given up the alien wife. Trivial moveable articles which do not yield themselves to accurate division, generally go to the eldest son, but the Panch may make them over to any one of the sons they think proper. 21. From the above authority, it is evident that all sons are entitle for equal share, with exception in some cases, the eldest son gets “Jetansh”. 22. The custom among the Mundas is that the entire villagers are the co-owners of the land. Among them, one of the Khunts is appointed as Village Headman known as Munda. 21. From the above authority, it is evident that all sons are entitle for equal share, with exception in some cases, the eldest son gets “Jetansh”. 22. The custom among the Mundas is that the entire villagers are the co-owners of the land. Among them, one of the Khunts is appointed as Village Headman known as Munda. The holder of this post of Munda has to collect Chanda or quit rent from the other villagers and also from the Raiyats to forward the same to Manki. The Manki is religious head of the group of villages, who, on receiving the rent from Mundas, transmit the same to the proprietor or tenure holder. This post of Munda is inheritable on the line of primogeniture. 23. For adjudication of the case, some of the provisions of Chota Nagpur Tenancy Act, 1908, are required to be taken note of, which are quoted herein below: Section 3(xvi): “Mundari khunt-kattidari tenancy” means the interest of a ‘Mundari khunt-kattidar’; Section 3 (xxvii): “tenure” means the interest of a tenure-holder, and includes an under-tenure, but does not include a ‘Mundari khunt-kattidari’ tenancy; Section 4: Classes of tenants.-There shall be, for the purposes of this Act, the following classes of tenants, namely: (1) Tenure-holders, including under-tenure-holders; (2) Raiyat, namely :- (a) Occupancy-raiyats, that is to say, raiyats having a right of occupancy in the land held by them, (b) Non-occupancy raiyats, that is to say, raiyats not having such a right of occupancy, and (c) Raiyats having khunt-katti rights; (3) Under-raiyats, that is to say, tenants holding, whether, whether immediately or mediately, under raiyats; and (4) Mundari khunt-kattidars Section 5: Meaning of a “tenure-holder”.-“Tenure-holder” means primarily a person, who has acquired from the proprietor, or from another tenure-holder, a right to hold land for the purpose of collecting rents or bringing under cultivation by establishing tenants on it, and includes,- (a) The successor-in-interest of persons, who have acquired such a right, and (b) The holder of tenures entered in any register prepared and confirmed under the Chota Nagpur Tenures Act, 1869 (Ben. Act 2 of 1869) But does not include a Mundari khunt-kattidar. Act 2 of 1869) But does not include a Mundari khunt-kattidar. Section 6: Meaning of “raiyat”.-(1) “Raiyat” means primarily a person who has acquired a right to hold and for the purpose of cultivating it by himself or by members of his family, or by hired servants or with the aid of partners; and includes the successor-in-interest of persons who have acquired such a right, but does not include a Mundari-khunt-kattidar. Explanation.-Where a tenant of land has the right to bring it under cultivation, he shall be deemed to have acquired a right to hold it for the purpose of cultivation, notwithstanding that he used it for the purpose of gathering the produce of it or of grazing cattle on it. (2) A person shall not be deemed to be a raiyat unless he holds land either immediately under a proprietor or immediately under tenure-holder or immediately under a Mundari-khunt-kattidar. (3) In determining whether a tenant is a tenure-holder or raiyat, the Court shall have regard to,- (a) local custom, and (b) the purpose for which the right of tenancy was originally acquired. Section 8: Meaning of “Mundari-khunt-kattadari”.- Mundari-khunt-kattidar means a Mundari, who has acquired a right to hold jungle land for the purpose of bringing suitable portions thereof under cultivation by himself or by male members of his family, and includes.- (a) The heir male in the male line of any such Mundari when they are in possession of such land or have any subsisting title thereto, and (b) As regards any portions of such land which has remained continuously in the possession of any such Mundari and his descendants in the male line, such descendants. Section 18: Bhuinhars and Mundari khunt-kattidars to be settled raiyats in certain cases.-The following classes of persons shall be deemed to be settled ‘raiyats’ for the purposes of this Act, in regard to the land in their villages which they cultivate as ‘raiyats’ (other than their own ‘bhuinhari’ or ‘Mundari khuntkattidari’ land, and other than landlords privileged lands as defined in Section 18 and the provisions of sub-sections (3) to (6) of Section 17 shall apply to such persons as if they were ‘raiyats’, namely :- (a) Where any land in a village, other than land known as ‘manjhihas’ or ‘bethkheta’, is entered in any register prepared and confirmed under the Chota Nagpur Tenures Act, 1869 (Ben. Act 2 of 1969) – all members of any ‘Bhuinhari’ family, who hold, and have for twelve years continuously held, land in such village, and (b) Where any village contains lands not forming part of Mundari khunt-kattidari tenancy and an entry of Mundari khunt-kattadari or of Mundari khunt-kattidars in such village has been made in any record of-rights as finally published under this Act or under any law in force before the commencement of this Act – all male members of any Mundari khuntkattidar family who hold, and have for twelve years continuously held land in such village. 24. From the conjoint reading of the above Sections of Chota Nagpur Tenancy Act, 1908, it is evident that the Mundas are neither Raiyat nor tenure holders, but, they are approximate to Raiyat. Mundari Khunt-Kattidars frequently hold Raiyati land in addition to their privileged tenancies and, therefore, they are to be treated as Raiyat. 25. Further from perusal of Section 8(a) of the Chota Nagpur Tenancy Act, 1908, the phrase used therein “the heir male in the male line”, which suggests the rule primogeniture, as “heir male” phrase has been used, but this is for the right to hold jungle land for the purpose of bringing suitable portions thereof, under cultivation as head of the village. 26. In the present case, the parties are Munda, as is evident from their title, but they are in the status of Raiyat. The predecessor of the parties was recorded Raiyat and some part of the lands had been acquired by purchase. Thus, being the status of Raiyat not as Munda of the village, the contention raised by the appellant is not tenable. 27. In view of the above discussion, this Court finds no substantial question of law involved in the present appeal. Accordingly, the same is, hereby, dismissed.