^ HIGH GOURT OF CHHATTISGARH, BILASPUR SeGond Appeal No. 165 of 2007 •^ APPELLANTS/: (Defendants) RESPONDENTS/: (Plaintiffs) 1. Mahasingh, aged about 38 years, S^ Shiv Shingh/Caste Gond, 2. Kadamiya Bai, aged about 32 years, Caste Gond, wife of Mahasing/ Both are R/o Village Ghaghra, Tahsil Pendraroad, Distt. Bilaspur (C.G.) Versus l.(a) Babua, aged about 50 years, S/o Narinda, husband of Fulmati Bai/ (b) (c) 2. Kalam Singh, aged about 13 years, Minor, S/o Babua, Sukhdev Singh, agedabout 8 years, Minor S/o Babua, Minors (b & c) through natural guardian father Babua, S/o Narinda. Jankunwar, aged about 68 years, widow of Kashiram, Caste Go.nd, All are R/o Village Ghaghra, Tahsil Pendraroad, Distt. Bilaspur (C.G.) 3. State of Chhattisgarh, Through the Collector, Bilaspur (C.G.) (Defendant No.3) {Second appeal under Sectjon 100 of the Code of Civil Procedure, 1908} Present: Mr. Rakesh Pahdey, counsel for the appellants. None presentfor respondents No.l (a), (b), (c) & 2. Mr. Rajendra Tripathi/ Panel Lawyer for the State/respondent No.3. Sinale Bench: Hon'ble Mr. T.P. Sharma, 3 ORAL JUDGMENT (20-8-2009) 1. This second appeal under Section 100 of the C.P.C. is directed against the judgment & decree dated 26-2-2007 passed by the AddJtional DistrictJudge,PendraRoad in Civil Appeal No.73-A/2006 reversing the judgment & decree of dismissal of the suit, dated 9-7- 99 passed by the Civil Judge Class-II, PendraRoad in Civil Suit N0.308-A/98. 3 F Judgment & decree are challenged on the ground that leanTg^ lower appellate Court has notconsidered the substantial question of law that respondent No.2 herein has remarried therefore, she is not entitled for any share in the property after the death of her previous husband i.e. Kashiramandcommitted illegality. 3. BFief facts of the case are that the prQperty in dispute was originally owned bydeceased Kashjram, alleged first husband of respondent No.2, Appellant No.2 is daughter of deceased Kashiram thFOugh his secQnd wife and appellant.No.l is husband of appellant No.2. Respondents No.l (a), (b) & (c) are husband & children of deceased Fulmati Bai, daughter of deceased Kashiram through his first wife respondent No.2. According to the case ofthe plaintiffs/respondents No. 1.8i 2, the property in dispute was owned by deceased Kashiram, respondentsNo.l & 2are heirs of Kashiram and entjtled tosucceed the property. On the ground of interference, suit for permanent injunction was filed by the plaintiffs. Allegation of the plaint was denied by the present appellants/defendants No.l & 2 and it was alleged that during the life time of Kashiram, respondent No.2 marned Bhajan Singh and she left the house of Kashiram along with her daughter Fulmatj, wife of respondent No.l (a) Babua, respondent No.l (b) Kalam Singh & respondent No.l (c) Sukhdev Singh, therefore, they are not entitled for any succession. The present appellants have also alleged that they have pyrchased the property in dispyte from Kashiram vide sale deed dated 4-1-1994 and they are in possession of the suit property. After affording Qpportunity of hearing to the parties/learned Civil Judge Class-II has dismissed the suit and lower appellate Court has reversed the judgment & decree and deciared 2/3rd share of respQndents No.l & 2 herein. 4, I have heard learned counsel for the parties and perused the judgment & decree as also the records of the Courts below. 5. Learned counsel for the appellants vehemently argued that respQndent No.2 has remarried during the life time of Kashiram, therefore, she is-not entitled for anyshare and the Court below has committed illegality.by declaring her l/3rd share. 6. Both the parties are members ofScheduled Tribe, but they have not pleaded and proved any specific custom of succession in theircaste. They have pleaded andadduced evidence that after the 8eath of a male member, his wife, son & daughter are entitled for share. Both the parties have adduced evidence but there is no substantive evidence to show that respondent No.2 Jankunwar has remarried durihg the life time of Kashiram and therefore, she is not entitled for any share. In absence of such evidence, after the death of Kashiram all his heirs shall be entitled for share over the property left by Kashiram. Mother of present appellant No.2 died during the life time of Kashiram, therefore, at the time of death of Kashiram only one daughter Kadamiya Bai, wife Jankunwar & heirs of deceased daughter Fulmati were alive and they will take equal ,share, as such, they are entitled for l/3rd share percapita. 7. After appreciatjng the evjdence available on record, learned lower appellate Court has rightly declared the share of the parties. I do npt fjnd any illegality in the judgment& decree impugned orany substantial question of law. 8. Consequently, the appeal is liable to be dismissed and it is hereby dismissed. No order as to costs. Soma Sd/- T.P. Sharma Judge