^ HIGH COURT OF CHHATTISGARH AT BILASPUR APPBLLANTS DEFENDANTS RBSPQNDBNTS PLAINTIFPS DEFENDANT DEFENDANT DEFENDANT 8.A. No.167/2006 1. SoniBai (DIBD AND DBLBTBD) 2. Murll S/o Uttam, aged about 32 years. 3. Sharda Bai D/o Uttam aged about 38 years, 4. Kisun S/o Uttam aged^ about 28 years, 5. Anjaa Bai D/o Uttain aged about 26 years 6. Kanti Bai D/o Uttam aged abut 24 years. 7. Devendra S/o Uttam, aged about 22 years AU Cultivator and R/0 Vmage Mara, Tah. Dondi Lohara, Distt. Durg (M.P.) now C.G. VERSUS 1. 2^ 3. 4. Unnila Bai Wd/o Ishar Halba, aged about 42 years R/ o Vilage Marra Tali. Dondi Lohara, Distt. Durg. Lala Bai D/o Itwari W/o Prabhuram, aged 54 years, R/o ViUage Bhaagaon, Tah. Dondi Lohara, Distt. Durg. Pennila Bai D/o Itawari, W/o Bhaairain aged about 37 years, Cultivator R/o Vmage Achhola, Tah. Dondi Lohara, Distt. Durg. State of M.P. Now C.G. Through CoUector Distt. Durg (C.G.). SECOND APPEAL U/S 100 OF THE CIVIL PROCEDURE CODE. (SB sHoa?ble Mr. T.P.Sharma, J.) Present:- Shri Vimlesh Bajpai, Advocate for fhe appeHants No, 2 to 7. Shri Malay Shrivastava, Advocate for the respondent No. 1, Shri U.K.S. Chaadel, P.L. for the State/respondent No. 4. None for fhe respondents No, 2 & 3, ORAL- JUDGBMBNT (Passedon 10/12/2010) 1. Heard on adniission. -^- r^> Vide judgmient aad decree dated 30/1/99 m civil Suit No, 139- A/98 passed by 2nd Civil Judge Class-II, Balod has decreed fhe suit for declaration of tiUe, possession aad permaaent iajunction filed on behalf of fhe respondent No. 1 agaiast fhe predecessor ia title of present appeUaat i.e. Uttaai aad respondents No, 2 & 3 on fhe ground fhat UrniUa Bai is a daughter of Itawari, si^ter of Uttaia aad respondents No, 2 & 3 and she is entiUed for share ia property aad partition efiTeeted by Itwad fafher of respondents No, 1, 2, 3 and Uttam same was challenged before fhe lower appeUate Court while dismissing fhe civil appeal No. 15-A/99 vide judgment aad decree dated 29/12/05 AdditionalDistrictJudge, Balod, District Durg has affirmed fhe Judgment aad decree passed by tdal Court. As per pleadiag of appeUants No. 2 to 7 Itwad was owner of fhe property, he was haviag one son nainely Uttani aad two daughters respondents No. 2 & 3 namely Lala Bai & Perxmla Bai. Respondent No, 1 Urmila is not a daughter bf Itwari, mother of Uniula Tikautmbai was never xnarded to Itwad therefore UnnUa was not entiUed aay shai'e over fhe suit property. By fUiag plamt Unnila has clafcmed suit property on fhe ba^is of her relation as a daughter of Itwari from second wtfe Tikautinbai and partition effected by Itwari during his Ufe time. Both fhe pardes had led evidence. After appreciating the evidence both fhe Courts below arrived at a findmg that Urmila is a daughter of Itavari aad Itwad effected the partitiou aiid has aUotted share to respondent No. 1 therefore aay wiU of entire property is not valid alfhough Itwari was coinpetent to execute wiU rclating to his share fherefore wiU would be valid to the extent of share of Itwad, ^^fs^" N^ '^. '? ^ 8. Shri Vimlesh Bajpai, Advocate for tlie appeUants No, 2 to 7, Shri Malay Shrivastava, Advocate for ftie respondent No. 1 aad Shri U,K.S, Chaadel, P,L, for fhe State/respondent No, 4 are heard, Judgnient aad decree of bofh fhe Courts below aad record of bofh fhe Courts below perused, Leamed counsel for the appeUaats No. 2 to 7 veheraenUy argued fhat appellants No. 2 to 7 have proved the fact that Unnila is not a daughter of Itwad aad she is not entifled to succeed property left by Itwad or she is not entiUed for aay partition during Ufe time of Itwari or even after his death. Uttam has succeeded the property as a testainentary successor ia exclusion of respondents No, 2 & 3 also exclusion of respondent No. 1 ia case of aay fiadmg fhat respondent No. 1 is also daughter of Itwari. On ftie ofher hand, leamed counsel for the respondent No, 1 opposed fhe appeal aad subxnits that present appeUaats No. 2 to 7 have denied each aad every fact of plaint aad has spect&caUy taken fhe ground fhat Unidla is not a daughter of Itwari, no partition took place prior to fiUng of suit fherefore Urmila is not entitled for aay share but documentary evidence wiU Ex, D-4 reveal that Itwari was havmg 3 daughters. Attestmg witness ofwill DW2 Bahuri Ram has spect&cally deposed ia Para-2 of his evidence tiiat Itwari was haviag 3 daughters namely Unaiila Bai, Lala Bai aad Pennila Bai. Oral aad docuinentary evidence adduced on behatf of appellaats No, 2 to 7 is sufiicient for provuig tfie fact that Unnila is also daughter of Itwari. Concurrent findmg of fact relatuag to partition of both the Courts below are not liable to be disturbed aad again question relating to 1 K^* •^». ^ pardtion woiild not be fhe question of law for decision of ftiis second appeal. 9. As per docuuient Ex. D-4 aUeged will Itwad was haviag 3 daughters. As per Para-3 of evidence of appellant's witaess Bahuri Ram tiiat respondent No. 1 UnnUa Bai is also daughter of Itwad. As per evidence of plamtiffs witaess which has not been rebutted by the evidence ofdefeadaats/appeUaats No. 2 to 7 reveal fhe factum of possession. Bofh flie Courts below ardved at a concurrent fiadiag of partition aad entifleinent of possession of respondent No. 1, Considenng fhe facts fhat Urmila was also daughter of Itwan aad concurrent findiag of facts of both fhe Lower Courts below relating to partition aiid entiUement of possession over suit property, I do not fiad aiiy substaatial question of law for decision of this second appeal. Consequentiy, this second appeal is Uable to be dismissed and is hereby disniissed. 1- No order as to costs. ! Sd/- T.P. Sharma Judge <^