^ HIGH COURT OF CHHATTISGARH. BILASPUR Second Appeal No.304 of 2011 ^ APPELLANTS/: (Plaintiffs) Smt. Kesha Bai - Dead. 1. 2. 3. RESPONDENTS/: (Defendants) 2. 3. 4. Sardul Singh, aged about 67 years S/o Lt. Dayaram Sube Singh aged about 50 years, S/o Lt. Dayaram Jayendra Singh aged about 45 years, S/o Lt. Dayaram All of them are R/o Vill. Narayanpur, District Narayanpur (C.G.) Versus Smt. Hiramani aged about 41 years W/o Lt. Virendra Singh Smt. Kamieshweri aged about 20 years, D/o Lt. Virendra Singh Smt. Rukhmani aged about 45 years W/o Lt. hlarendra Singh All of them are R/o Vill. Narayanpur, District Nargyanpur (C.G.) State of Chhattisgarh Through Collector Narayanpur, District Narayanpur (C.G.) {Second appeal under Section 100 read with Section 103 and Order42 Rule 1 and Order41 Rule 1 ofthe Code ofCivil Procedure, 1908} /Present: Mr. Rakesh Thakur, counsel for the appellants. Mr. Akhil Agrawal, Panel Lawyer for the State/respondent No.4, on advance copy. Sinale Bench: Hon'ble Mr. T.P. Sharma, J JUDGMENT (11-11-2011) 1. By this second appeal under Section 100 of the CPC, the appellants have challenged legality & propriety of the judgment & decree dated 5-4-2011 passed by the 2nd Additional District Judge, Jagdalpur in Civil Appeal No.1A/2011 affirming the judgment & decree dated 6-2-2008 passed by the Civil Judge Class-11, Narayanpur in Civil Suit No.4A/2006, whereby both the Courts below have dismissed the suit for declaration and injunction filed on behalf of the appellants herein/plaintiffs against the respondents herein/ defendants. / ^ '1. ^^^ 'y^" ^ ^l^ 2. I have heard learned counsel for the pari:ies, perused the judgments & decrees and records of both the Courts below. 3. Learned counsel for the appellants submits that this is dispute relating to property of father's brother of the appellants herein and mother's father i.e. brother of the respondents herein namely Ganesh Ram. Both the Courts below have held that it was joint property of the plaintiffs and the defendants and thereby committed illegality. Learned counsel further submits that by arriving at finding that the property is joint property of both the parties, the Court was under obligation to pass decree for partition, even in absence of specific relief claimed by the plaintiffs/appellants herein. Learned counsel placed reliance in the matter of Smt. Neelawwa v. Smt. Shivawwa (AIR 1989 Karnataka 45) in which the Karnataka High Court has held that in suit for declaration oftitle and for injunction restraining defendant from alienating suit property, relief of partition and separate possession can be granted even in absence of specific prayer for such relief. 4. On the other hand, learned State counsel opposes the appeal. 5. Suit for declaration and injunction was filed before the trial Court in which the appellants herein have not claimed any rfeljef that they are joint owners of the property. In these circumstances, the Court was under obligation to decide whether the appellants herein were sole owners of the property or not which the Court has decided in negative. Finding of spedfic share or grant of relief for partition in the present case would only be an academic question of law. Finding of both the Courts below clearly reveals that the appellants herein are also having right over the property. They are still at liberty to file suit for partition or application for partition before the revenue authorities. 1 do not find any substance or substantial question of law for decisionofthisappeal. 6. Consequently, the appeal is liable to be dismissed and it is hereby dismissed with the aforesaid observation, at the admission stage itself. No order as to costs. 7. I.A.No.1 standsdisposed of. Soma Sd/- T.P. Sharma Judge