IN THE HON'BLE HIGH COURT OFGHHAmSGAim AT BILASPUR . N0. M D SECOND APPEAL No, /2009 APPELLANTS PLAINTIFFS 1. Kondi Bai wd/o Bisahu Satnami, aged aboyt 53 years. ^^^^ 2. Ubaran s/o Bisahu Satnami, aged about 21 years. \>y. ^^•••"" Both R/o village- Garra, Tahsil- Saja, District: Durg (C.G.) VERSUS RESPONDENT DEFENDANT 1. Jhau Lal s/o Bharosa Satnami, aged about 50 years, Occupation- Agriculturist, R/o viUage - Garra, Tahsil- Saja, District Durg (C.G.). 2. State of Chhattisgarh, through Collector, Distriet Durg (C.G.) SECOND APPEAL UNDER SECtIQNlOOOF CIVIL PROCEDURE CODE HIGH COURT OF CHHATTISGARH AT BILASPUR Second Appeal No. 40 of2009 Kondi Bai & Another Post ofpronouncement ofjudgment and orders on )2^/05/2009. Sd/- N.K-Agarwal Judge .—»-< HIGH COURT OF CHHATTISGARH AT BILASPUR Second Appeal No. 40 of2009 1. Kondi Bai Wd/o Bisahu Satnami, aged about 53 years. 2. Ubaran S/o Bisahu Satnami, aged about21 years. Both R/o village GaiTa, TahsU Saja, District Durg (CG). Versus 1. Jhau Lal S/o Bharosa Satnami, aged about 50 years, occupation Agricultorist, R/o Village Garra, Tahsil Saja, District Durg (CG). 2. State of Chhattisgarh through Collector, District Durg (CG). Second Appea! under Section 100 ofCode ofCivil Procedure ('SingIe Bench: Hon'ble Mr. N.K. Agarwal, J.) : Shri Vimlesh Bajpai, Advocate for the appellaats. Shri Saiijay Shyam Agrawal, Advocate for the respondent No. 1. Shri Ajay Dwivedi, Dy. Govt. Advocate forthe State. (Passed on )l^ day of May, 2009) Heard on admission. The instant secoad appeal is directed against the judgment and decree dated 29.11.2008, passed by the Additional District Judge (FTC) Bemetara, District Durg (CG), m Civil Appeal No. 16-A/2008, which was preferred by the appellants/plaintiffs against thejudgment and decree dated 14.11.2006, passed by Civil Judge, Class I, Bemetara, District Durg, in civil suitNo. > 3. 41-A/05, whereby, . the appeal appellants/plaintiffs was partly allowed. by the 2. The brief facts of the case are that, the appellants instituted a suit against the respondent/defendaut herein, seeking a relief of declaration oftitle and possession overthe suit land and for its pos.session. The plaintiffs case in Eutshell was that late Bisahu, who was husband of plaintifF No. 1 and father of plaintifF No. 2, was having 3.19 Hectare of land in village Garra, P.H. No. 3. The land was recorded in the name oflate Bisahu. After death of Bisahu, the said land stands mutated in the aame ofplaintiffs as well as one Smt. Rambati (first wife of Bisahu). Smt. Rambati died on 27.04.94. After death of Rambati, the defendant No. 1 applied for mutation of 1.59 Hectares ofland out oftotal land i.e. 3.19 Hectare, before the Naib Tahsildar, on the basis of registered Will deed said to be executed by late Rambati on 12.02,93 in his favour. The plaintiffs opposed the said mutation. The matter went up to Revenue Board and ultimately, vide order dated 26.05.2003, the appeal of defendant No. 1 was allowed and suit land bearin^ Khasra No. 115/02, 190/2 and 150/2 total 1.59 Hect. of land stands mutated in the name ofdefendant No. 1 and in pursuance ofthis mutation, the defendantNo. 1 took over possession. The main grounds of ehallenge of the plhintiffs was that the said Will deed was fake and forged. Late Rambati was not liaving any legal right to bequeath the suit property in favour of defendantNo. 1. 4. The defendant No, 1, in his written statement, pleaded that ti' plaintiffNo. 1 was not legally vvedded wife oflate Bisahu and therefore, she cannot inherit the property, left behmd by late Bisahu. He further pleaded that Will deed dated 12.02.93 was legal and was binding upofl the plaintifis. The trial court, upon ths appreciation of pleadings and material brought on record, and evidence led by the parties, held that the said Will was validly executed, PlaintiffNo, 1, being second wife in the life time of first wife, will not have any right in the 7. suit propertv'. The plaintiff No. 2, beiag son of Bisahu, will inherit 1/3 share ofthe property, and allowed the suit in part. The plaintiffs went in appeal. The first appellate court, while affinning the findings, held that the plaintifFNo. 2 and Rambati are entitled to half share of total land i.e. 3.19 Hect. and therefore, the plaintififNo. 2 and defendant No. 1 will get half- halfshare over the total land i.e. 3.19 Hect. Being aggrieved by the aforesaid findings of the court below, the instant second appeal has been preferred by the appellants/plaintifFs herein. Shri Bajpai, leamed counsel appearing for the appellants submits-that both the courts below have erred in holding the said Will deed as genuine. 9. I heard the contentions raised by counsel for the appellants, and ^-^£ ^ also perused tfae record with utmost circumspection. The counsel'for the appellants failed to point out any illegality, perv'ersity 6r infirmity in the findings arrived at by both the 1;-K F—-: a --"•"T' h^^^B'i^'fli^ii^ii-i.t^A.-^ T courts below. The finding regarding due execution of Will is essentially a finding of fact, the courts below have reached to the said finding concurrently based on appreciation oforal, as well as documentary evidence led by the parties. Therefore, I am ofthe considered opinion that no substantial question oflaw arises for determination in this appeal. The appeal is liable to be and is accordingly dismissed at admission stage. Sd/- N.K.Agarwal Judge Sahu *2