IN THE HIGH COURT OF JUDICATURE AT BILASPUR Second Appeal Nogé Of 2006 APPELLANTS/ *1 Banvali S/o Durgu, Age about 50 yLAINTIFFS years «(ft K ‘92. Adhin S/ o Durgu, Age about 45 years ‘g ( 3’fRajnath S/o Durgu, Age about 38 VERSUS RESPONDENTS K1”. ‘Mujnu S/o Raisingh, Age 38 year. f2. Kejau S/o Boda, Age 35year. ”3‘. Dashru S/o Boda, age 30year. ”6.4. Duklha S/o Boda , age 25 year. A11 are cultivators and all Resident of Village Gangpur, Tahsil Kawardha , Distt. Rajnandgaon (presently Kabirdham distn'ct (CG). . v 5. Late. Najaru S/o Pusau, ke Vaidhya Pratinidhi 5" 1) Bipatram S/o Najaru , age 45 year, a x Resident Dargaon Tahsil Kawardha i‘ 2/} Bipatibaj W/o Ishwari, age flO year, Res1dent Gavahabata, Tahs1l Kawardha E Dead Ganga Bai W/o Santram ke Vaidh Vaarisan- 4a? é. K 1 /w> Bihari S/o Ranga Sahu age 36 year, ‘ Resident Birkona Tahsil Kawardh . k6 gj/ Khelan S/o Ranga Sahu, age 40 year, Resident Birkona Tahs1l Kawardha 6' 3f Lala S/o Ranga Sahu, age 38 k/ Resident Indori, Tahsil Kawardha, «a Single Balm“ \ L oia f : 4. Dead SomnathSS/o Durgu E [daiek’élgéeé Vaidhya Pratinidhi “9.: ' 0" AVA) Bhlikhan S/o Somnath Sahu Age 25 years, '§\y All are cultlvators and all Res1dent of A A» Village Gangpur,.Tahsi1 Kawardha ,' Distt. a? \ ah Rajnandgaon (presently Kabirdham district . § (CG). Adhanu Sahu S/o Samaru Sahu, age 35 year, Resident Indori Tahsil Kawardha Parsram S/o Khelau Sahu, age 63 year,Resident Sonda , Tahsil Barela, Distt. Durg. Panchram S/o Parsram age 40 year,Resiclent Sonda , Tahsil Barela, Distt. Durg. Chetram S/o Parsram age 38 year, Resident Sonda , Tahsil Barela, Distt. Durg. Kartlkram S/o Parsram age 36 year, Res1dent Sonda Tahs11 Barela, Dlstt Durg Gopal Ram S/o Parasram age 34 year, Resident Sonda , Tahsil Barela, Distt Durg Jagatram S/o Parasram age 32 year, Res1dent Sonda Tahs11 Barela, Distt Durg Kumaribai Wd/o Loknath age 56 year, Resident Bhedli Tahsil Kawardha, Kunti Bai W/o Premkufn‘ar age 23 year, Resident Kutkipara Tahsil Kawardha . Sonmatbai W/o Hemrai age 56 year ReSIdent Kutkipara Tahs11 Kawardha Khorbahra S/o Baburam age 35 year,Resident Parasvara ' (Pandatarai)Tahsil Kawardha . Chandrika S/o Khorbahra age 35 year, Resident Chardong'ari Tahsil Kawardha. Chameli W/o Shriram age 38 year , Resident Pawani , Tahsil Mungeli. Dhukhiyabai W/o Pakhanram age 52 year, Resident Gangpur Tahsil Kawardha . Vishram S/o Sahoran age 53 year, Resident Gram Sonpuri Tahsi Kawardha. Gokul S/o Vishram age 22 year, Res1dent Gram Sonpurl, Tahsl Kawardha a 10/ &l G‘ll/ Akx" / e12 k/ l 520/ Devnadh S/o Santram age 40 year, z” Resident Sonda‘ Tahsil Barela, e Distt. Durg. k9 g1 / Baijuram S/ o Santram age 34 year, Resident Sonda Tahsil Barela, Distt. Durg. v ‘l ,(3'22/ Fagni Bai W/o Bhukhu Sahu age 60 " year, Resident Sonda Tahsil Barela, w Distt. Durg. ‘¥: ”zsmrg 0%.crq. Au "Thmwk‘ cuitaiwr kawwwm ca. Ag ‘4.“ .cg “W MEMORANDUM OF SECOND APPEAL UNDER sf SECTION 100 OF CODE OF CIVIL PROCEDURE 1908. XI—HCv22 Erma,m, WEI W M. 1e m‘ w 200 é W mam mm WW mmmw WW§WW aamm m i .L 29.8.2006 Shri Awadh Tripathi, sounsel Arguments on admission head. Order dictated as follows: ORAL (29.8 This is the plaintiffs' Second the Code of Civii Procedure. The pi appeal arises out of judgment and d the Additional District Judge (FTC), A/2004, arising out of judgment an in Civil Suit No. 9-A/78 by the Rajnandgaon, Camp-Kawardha. The brief facts are that the partition and separate possession i in Schedule-A of the plaint. The pla including many other lands was the namely— Pusau. Bhukhau and Durg of branch of Durgau, whereas, the branch of Pusau and Bhukhau. Th was no partition of this land in the fa land to the extent of 1/3 share in it. opposed by defendants No.1 to 5, They contented that in fact, there w back and all the 3 brothers namely far the appellants. ORDER 2006) ppeal, filed under Section 100 of intiffs Iost in both the Comte, This cree dated 27.10.2005, passed by Kabeerdham in Civil Appeal No.8- decree dated 21.12.1979, passed Additional Civil Judge- Class-ll, laintiffs tiled a suit for declaration, respect of the suit land. described nt allegations are that the suit land, oint property among the 3 brothers . The plaintiffs are the successors defendants are the successors of plaintiffs claimed that since there ily, they are the owners of the said This contention of the plaintiffs was ho are the successors of Pusau. s a partition in the family 48 years Pusau, Bhukhau and Durg XI—HC—22 mailman, m,W @2 } m fxA. 2g m. W mam mm mmmw _z# mm§wm WW ‘ émfa‘manéa separated from each other. The also contented that in the said ll; partition, the suit land was allotted i the share of Pusau, who remained in exclusive possession of the sam till his life-time and after his death, the same is being possessed by is successors i,e. defendants No. 1 to 5. Learned trial Court framed v xioius issues in this case and after recording evidence of the parties, ismissed the suit of the plaintiffs, holding that there was a partition in between 3 brothers namely:Pusau, Bhukhau and Durgau and in the sai partition, the suit land was allotted in the share of Pusau and thereaft r, the same was suceeeded by his successors i.e defendants No. 1 to ' Against the aforesaid judgm nt and decree, passed by the trial a Court, the plaintiffs filed a First Ap al before the lower appellate court. The lower appellate court also to k the similar view, confirming the finding of partition in the family of 3 brothers and also confirming the \v l finding that in consequence of the artition, the suit land was allotted to a t: the share of Pusau, whose succ ssors (defendants No.1 to 5), are holding the possession thereof. Learned counsel for the ap ellants submits that the finding in relation to partition is perverse. H also submits that the Courts below L erred in law in holding that there as a partition in the family and the suit land was allotted to the shar of one of the brothers in the said partition. l have heard learned coun el for the appellants at length and have also gone through the recor of the Courts beiow. XI-HC-ZZ mam mm WW sunita For the purpose of finding >f partition, the Coults below have relied on the oral evidence of the defendants. which shows that there was a partition in the famiiy. They have also relied on the documentary evidence i.e. revenue records, per:aining to the suit land, which does not stand on the namee of the pia ffs and they stand on the names of successors of Pusau. The Courts elow have also referred to the facts in ragareto Chakbandi proceedin s in relation to this land, in which, this land was recorded on the soli ry name of one of the grand-sons of Pusau namely- Mujnu(defendant No.1) and on the basis of this evidence, they have come to the c nclusion that there was a partition in the family and in the said partition, is land was allotted to the share of Pusau and it was ultimately succee ed by his heirs, who are defendants No.1 to 5. Since the tinding in relation to factum of partition is a finding of fact and the same has been con urrently recorded by the 2 Courts below and there appears to be no erversity in this tinding recorded by the said Courts, l am of the opinion hat this appeal does not involve any ideration under Section 100 of the substantial question of law for c Code of Civil Procedure. The appeal has no merit. e same is dismissed at the motion stage itself. Sunii Kumar Sinha Judge # Sd/— i i h o h