.^ ^- '1)^^ ^f 'B IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR (C.G.1 SECOND APPEAL N0.43^—OF_2006 APPELLANTS DEFENDANTS r?^'' X"'^ 'i A.-' RESPONDENTS : PLAINTIFFS 1.(a){ Janak, aged about 61 years, Son of Mankharan; 2. (b) /' Dayaram, aged about 61 years, Son of Mankharan; Both residents of Village Dadgaon, Tahsil Mungeli, District Bilaspur (C.G.). VERSUS l./ Hemandas Son of Bachcharam, aged about 35 years, Resident of Village Dadgaon, Tahsil Mungeli, District Bilaspur (C.G.). DEFENDANT N0.2 2. -' State of Chhattisgarh, Through: The Collector, Bilaspur (C.G.). ^' SECOND APPEAL UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE. 1908 ,<»»w Post for 5.?' 08-291! Sd//- Prashant Kumar Mishra Judge i.'-t- •'"'^J^* ^'r- ^il;'S ^ 'h^^ 'l^ln Cl i' Appearance: . Shri K.S. Kurre with Shri G.P. Kurre, counsel for the appellaats. Shri Vishnu Koshta, counsel for respondent No. 1. Shri Ajay Dwivedi, Deputy Govemment Advocate for the State/respondent No.2. 1S (5.y .08.2010) ts appeal under section 100 ofCPC. (2) Plaintiff, Hemaiidas preferred the suit for partition and separate possession against the original defendant Soni Bai. The suit was filed on the pleadings that the plaintiff is the son of Manchan Bai and Bachcharam. The suif property was purchased in the naine of defendant Soni Bai and Bachcharain. Soni Bai was sister of iachcharam. After death of Soni Bai and Bachcharam, the suit land was recorded in the name ofplaintifi, Irowever, the defendants are not allowing the plaintiffto enjoy the propeily by possessing 1/2 shai-e. (3) The defendant contested the suit by pleading that she is sister of Bachcharam, however, the propert}' vvas purchased by her alone \ from her streedhan and fhe name of Bachcharam was mentioned in -1- the sale deed as he vvas her brother. She stated 'that the plaintiffis the son ofone Ghaman alias Ghanshyam ofVillage Jaitpuri and he is not the son of Bacfacharam. According to the defendant plaintifTs name was wrongly recorded in the revenue record and that she has executed a will in favour ofone Sadhram. (4) The trial court dismissed the suit after finding that plaintifl: is not the son of Bachcharam. No issue was framed regardin? maintainability ofthe suit for non-joinder ofSadhram. (5) The first appellate court, by the impugned judgment and decree, has set aside the judgment and decree of the trial court and has held that the plaintifF is entitled to Vz share in the suit land. Tlie first appellate couil, after elaborate discussion, has held that the plaintiffis the son ofBachcharam. (6) In another suit filed by the respondent No. 1/plaintifF Hemandas similar issues were involved. Finding recorded in the other suit has been confirmed by tlus court in S.A. No. 431/2006 to the efiect that 'Jie plaintiffHemandas is the son ofBachcharam. (7) Counsel for the appellant has argued that the suit is not maintainable on account of non-joinder of Sadhram, however, on perusal of the trial courts judgment, it is found fhat no issue was framed to this effect. la the fu'st ate court also no such arguments were i'aised by filing cross objection that the suit shpuld . also have been dismissed by the trial court on t!ie ground of non- joinder of necessaty paity. lt h; .!!:•.:!.-'T -•3 ^1 <7 !) Once it has been found tfaat the plaintiffis.son ofBachcharam he is entitled to succeed to '/z share in the suit propert;- which vvas recorded in the name of Bachcharam along with Soni Bai as both of them had purchased the property. Consequently, the first appellate court has also found that the will executed by Soni Bai in favour of defendant/appellant Janakram bequeathing the entire suit land in his favour is illegal to the extent of'/s; share ofBachcharam for which the plaintiffis entitled. (9) No substantial question of law arises for determination in this appeal which fails and is hereby dismissed. Sd//- prashantKumar Judge Mishra vf 1