IN THB HON'BLB HIGH COURT OF CHHATTISGARH AT BILASPUR (C.G.t SBCOND APPBAL N0. ^ 7 7 2011 (S.B.) APPBLLANTS/ DEFENDANTS ^ ^^ ^<..<^^ .-"'A ^y^'-y > ^"'y RESPONDENTS/ PLAINTIFFS / Santram, aged about 65 years, S/o Dukalu Gond. Antram aged about 55 years, S/o Dukalu Gond. Jethu Ram, aged about, 50 years, S/o Dukalu Gond. Bhagat Ram, aged about 48 years, S/o Dukalu, Gond. All resident of Village Nawgaon (Siripara) Tahsil Kota, Distt. Bilaspur (C.G.) VERSUS l^(a) Vidya Bai, aged about 55 years, Wd/o Late Kanhaiya Gond. Jivrakhan, aged about 58 years, S/o Kanhaiya Gond. Dileshar, aged about 35 years, S/o Kanhaiya Gond. Rameshwar, aged about 32 years, S/o Kanhaiya Gond. Baldeo, aged about 60 years, S/o Nanka Gond. Puranjan Singh, S/o Ramhai Gond, aged about 35 years. Pitkunwar (Bachchwan Bai) ^ ^p) (d) 3. 2 <z Wd/o Ramhai Gond, aged about 58 years. All resident of Village Nawagaon, Dabaripara, Tahsil Kota, Distt. Bilaspur (C.G.) State of Chhattisgarh Through - The Collector, Bilapsur (C.G.) SECOND APPEAL UNDER SECTION "100 OF CIVIL PROCEDURE CODE AGAINST THE JUDGMENT AND DECREE DATED 22^2010 PASSED IN FIRST CIVIL 5. / APPEAL N0. 23-^ 10 BY THE COURT OF"^ISTRICT JUDGE BILASPUR PRESIDED BY SMT. ANITA JHA ARISINCr OUT OF THE JUDGMENT AND DECREE DATED ».dl^2 OS.fH.2010 PASSED BY THE COURT OF [IL JUDGE CLASS-II, KOTA, DISTT. BILASPUR IN C.S. N0. 38=A/2007 THE CASE OF THE VIDYA BAI AND OTHERS VS. SANTRAM AND OTHERS HIGH COURT OF CHHATTISGARH AT BILASPUR S.A.No. 27/2011 APPELLANTS Santram and others vv Versus RESPONDENTS Vidya Bai and others SB:- HON»BLESHRI N.K. AGARWAL, J PRESENT:- Shri Ahmad Hussain, Advocate, for the appellants. Shri Vinod Tekam, Panel Lawyer, for the State. ORAL ORDER (23-2-2011) 1. Heard on admission. This is defendants' second appeal again^t the judgment and decree dated 22nd September, 2010 passed by the District Judge, Bilaspur in Civil Appeal No. 23-A/2010 affirming the judgment and decree dated 5-1-2010 passed by Civil Judge Class II, Kota in Civil Suit No. 38-A/2007 whereby and whereunder, plaintiffs suit for declaration of title and permanent injunction was decreed. Brieffacts ofthe case are as under:- According to plaintiffs, suit property bearing Khasra No. 657/3, 696, 697/2, 698/2, 711, 745, 756, 766/1, 770/1, 793,794,795,805,836/2, 895/1 and 749, acres situated at village Nawagaon, P.H. No. 7, Tehsil Kota total area 27.57 was recorded in revenue record in the settlement 1927-28 in the name of late Nanka and thereafter the land stands recorded in the name of their ancestors and thereafter in their name. The suit land was property of Pilia Bai i.e. maternal-grand- mother of Nanka. Pilia Bai was not having any son. Murar Singh was his son-in-law. Nanka was son of first wife of Murar i.e. daughter of Pilia, Bai. Murar Singh entered into second marriage after death of the first wife and Dukalu and ^—-^ ^^^^ ^y' 's>%^^^^ 5. 6. '< Sukalu were sons of Murar from his second wife. As Pilia Bai was not having any son, the name of Murar was also recorded in the revenue papers of the year 1908-09 along with Pilia Bai. As the property was of Pilia Bai, it was recorded in the settlement of 1927-28 in the name of Nanka. Sukalu was issueless. The defendants are legal representatives of Dukalu. In collusion with the revenue authorities, the defendants got their name entered into revenue records along with the plaintiffs and they started claiming partition in the suit land. The above application was dismissed by the Tehsildar. One acre of land out of the suit land was acquired by the Government for canal, for that compensation has already been paid to the plaintiff. Since the order passed by the Tehsildar was set aside by the Sub Divisional Officer and, therefore, the instant suit for claiming relief of declaration and permanent injunction has been filed. Defendants contested the claim by filing their written statement..It was pleaded, Nanka was not son of Murar Singh and daughter of Pilia Bai. Marriage of daughter of Pilia Bai was not performed with Murar Singh. In fact, Pilia Bai was aunt of Murar. After death of father of Murar, the land stands recorded in the year 1908-09 in the name of Pilia Bai and Murar and after death of Murar Singh, it should have been recorded in the name of his son because Nanka was Lambardar of the family therefore, only his name was recorded in the revenue records but the property remained as joint property. Murar Singh was not having two wives and, therefore, the suit is liable to be dismissed. Learned trial Court framed issues. Both the parties led evidence. Learned trial Court on appreciation of entire evidence produced on record, decided the issues in plaintiffs' favour and decreed the plaintiffs' suit. The respondents herein preferred first appeal. Learned first appellate court on re- [••.li E w;^^y'" appreciation of entire evidence and considering the specific admission of D.W. 2 Parasram who happens to be 82 years of age at the time of recording of statement and happens to be well versed with the fainily affairs of the parties held, Nanka was son of Murar and Pilia Bai was his maternal-grand- mother, the property was exclusive property of Nanka; Dukalu and Sukalu were living separately as per admission of Parasram and, therefore, the defendants have no claim over the suit property and dismissed the suit. 7. Shri Hussain, learned counsel for the appellants would submit, the finding that Nanka is maternal-grand-son of Pilia Bai is not correct. Plaintiffs failed to prove exclusive title over the suit property and, therefore, both the Courts below have erred in decreeing plaintiffs' suit. 8. I have heard learned counsel for the parties and perused the record of both of Courts below. 9. The land stands recorded in the settlement of 1927-28 in the name of Nanka. There is categorical admission of Parasram who was of the age of 82 years at the time of recording of statement and who knows the parties including Pilia Bai and Nanka, that Nanka was grand-son of Pilia Bai. The suit property was recorded in the revenue papers of 1927-78 in the napie of Nanka. The defendants' ancestors were living separately meaning thereby there was no joint family of Nanka, Dukalu and Sukalu and the land remains recorded in the name of Nanka and thereafter in the name of his legal heirs till 2005. In view of above, the defendants have failed to bring on record any material showing property as joint property. Learned counsel for the appellants failed to show any per^ersity, absurdity or illegality in the above factual finding recorded by both the courts below and in the considered opinion of this Court, no substantial question of law arises for determination in this appeal. ^v\ "%^ ,^?%? .:-^./ % • . •^y ^y 10. This court cannot proceed to hear a second appeal without there being any substantial question of law involved in the appeal. Existence of substantial question of law is the sine- qua-non for the exercise of the jurisdiction under the amended Section 100 ofthe Code. Learned counsel appearing for the appellant failed to point out any substantial question of law which may arise for determination in the case. In the absence of any substantial question of law arises for determination of this Court, this Court has no option but to dismiss the appeal. 11. Therefore, the appeal being devoid of substance deserves to be and is hereby dismissed. 12. No order as to costs. Sd/- N.K. Agarwal Judge v\