1 2025:CGHC:14536 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 497 of 2023 1 - Tulsiram S/o Rajman Aged About 48 Years Caste- Panara R/o Hikmipara, Jagdalpur, District : Bastar Chhattisgarh (Legal Heir Of Late Jamvati) 2 - Tularam S/o Rajman Aged About 37 Years Caste- Panara R/o Hikmipara, Jagdalpur, District : Bastar(Jagdalpur), Chhattisgarh (Legal Heir Of Late Jamvati) 3 - Renuka Bai D/o Rajman Aged About 44 Years Caste- Panara R/o Hikmipara, Jagdalpur, District : Basta r(Jagdalpur), Chhattisgarh (Legal Heir Of Late Jamvati) 4 - Tilovati D/o Rajman Aged About 45 Years Caste- Panara R/o Hikmipara, Jagdalpur, District : Bastar(Jagdalpur), Chhattisgarh (Legal Heir Of Late Jamvati) 5 - Miss. Parvati D/o Late Jagdev Aged About 40 Years Caste- Panara R/o Hikmipara, Jagdalpur,, District : Bastar(Jagdalpur), Chhattisgarh ... Appellants/Defendants versus Asmati D/o Late Jagdev Aged About 55 Years Caste- Panara, W/o Late Mangalram, R/o Hikmipara, Jagdalpur, District : Bastar(Jagdalpur), Chhattisgarh ... Respondent/Plaintiff For Appellant : Mr. Sourabh Sharma, Advocate For Respondent : Ms. Priya Agrawal, Advocate on behalf of Mr. Punit Ruparel, Advocate (Hon’ble Shri Justice Naresh Kumar Chandravanshi) Judgment on Board 26.3.2025 1. Heard on admission. 2. This second appeal has been preferred by the appellants/defendants under Section 100 of the Code of Civil Procedure, 1908, challenging the judgment and decree dated 26.10.2023 (Annedure-A/1) passed by Second Upper District Judge, Bastar, Jagdalpur (CG) in Civil Appeal No.09A/2022, BINI PRADEEP Digitally signed by BINI PRADEEP Date: 2025.03.29 10:16:37 +0530 2 upholding judgment and decree dated 29.9.2022 (Annedure-A/2) passed by Second Civil Judge Class-I, Bastar, Jagdalpur (CG) in Civil Suit No.40A/2016, whereby, learned trial Court has allowed the suit filed by the respondent/plaintiff and granted decree in her favour. (For sake of convenience, the parties would be referred hereinafter as per their status before the trial Court) 3. Facts of the case, as projected by the plaintiff are that, plaintiff filed suit against original defendants 1 & 2 for declaration of title, permanent injunction and for declaring the alleged Will dated 30.5.1983 as null and void. It is pleaded that plaintiff and original defendant No. 1 & 2 are real sisters and are legally entitled to hold the ancestral property of Late Jagdev and late Smt. Punibai. It is also pleaded that ancestral property situated at Hikmipara (Dalpat Sagar Ward), City Jagdalpur, District Bastar (C.G.), Sheet No. 32, Plot No. 8, 31/1, area 0.74 acre/32234 sq. ft. (hereinafter referred as ‘suit property’), in which house and open land exist and complete detail was given in a Schedule 'A' along with plaint. In a part of suit property, the plaintiff has constructed the house and is residing along with her family, as she was having title over the property. After the death of mother and father of the plaintiff and defendants, all three sisters have equal share over the suit property and the house, in which, the plaintiff resides was in a dilapidated condition, therefore, she approached the Tahsildar Jagdalpur, for partition of suit property, in which, Tahsildar has issued notice to the defendants, wherein they denied the equal share of the plaintiff in a suit property, stating inter alia that the plaintiff is entitled only for 600 sq. ft land, in which she has already constructed house and on the remaining part of the suit property defendants have acquired their title and apart from that their mother late Punibai has executed a Will dated 30/05/1983 in favour of the defendants. The application 3 for equal partition has been rejected leading to filing of civil suit by the plaintiff seeking equal title and possession of both the parties over the suit property and permanent injunction to protect her possession and for declaration of Will dated 30.5.1983 executed by late Puni Bai as null and and void. 4. The original defendants 1 & 2 (sisters of the plaintiff) filed their written statement denying the averments made in the plaint stating inter alia that during the life time of Punibai, she has given 600 sq. ft. of land by way of partition to the plaintiff and apart from 600 sq. ft. of land, the remaining land was fallen in the share of defendants 1 & 2 and after death of Punibai i.e. after more than 20-23 years, the alleged family settlement was challenged, though the suit property was already partitioned during life time of Punibai and she has also executed Will in favour of defendant No.2 & 3, therefore, the plaintiff is not entitled to get 1/3rd share of the suit property. 5. On the basis of the pleadings of both the parties, learned trial Court framed as many as 08 issues and after providing opportunity of hearing to the parties to adduce evidence and after considering the same, allowed the suit in favour of the plaintiff holding therein that the plaintiff and original defendants 1 & 2 are having equal share over the suit property after death of their father Jagdev and mother Puni Bai, against which, the appeal filed by the defendants has also been dismissed, hence, this appeal. 6. Learned counsel for the appellants/defendants submits that the learned appellate Court as well as the trial Court have failed to decide the ground raised by the defendants and the arguments advanced in this regard, hence, it is prayed that question of law, as proposed, may be framed. 7. On the other hand, learned counsel for the respondent supported the impugned judgment and decree. 8. Undisputedly, the plaintiff and original defendants 1 & 2 were real 4 sisters and late Jagdev and late Smt. Puni Bai were their father and mother respectively. It is also not in dispute that the suit property was received to Smt. Puni Bai from her parental side, which was also accepted by learned counsel for the appellants/defendants. Since the plaintiff and original defendants 1 & 2 were daughters of Smt. Puni Bai, therefore, they are entitled for equal share of suit property. 9. Claim of the plaintiff for equal share was challenged by the original defendants No.1 & 2 on the ground that their mother late Puni Bai had partitioned the suit property between her daughters and she has given only 600 sq.ft. land to the plaintiff and remaining suit property was given to defendant No.2 & 3. Further Puni Bai has also executed Will dated 30.5.1983 in favour of late Munia Bai (sister of the plaintiff and original defendants 1 & 2) and defendant No.2 Parvati Bai, but neither that Will has been exhibited before the trial Court, nor it has been proved by examining any of the attesting witnesses or by other mode as contemplated in the Evidence Act, 1872. Alleged partition has also not been proved. Therefore, the Will does not attain status of legal Will, hence, on the basis of that, claim of equal share of the plaintiff cannot discarded as has been held by the trial Court as well as the first appellate Court. 10. Having considered the evidence available on record and further considering the fact that since the suit property belongs to maternal property of the plaintiff and original defendants 1 & 2, therefore, it can be safely held that both the parties (plaintiff and original defendants 1 & 2) are having equal title/share and constructive possession over the suit property. 11. Thus, having considered the concurrent finding recorded by both the Courts below, which does not suffer from any gross perversity or illegality, as such, I do not find any substantial question of law to be involved in the 5 instant case. Learned counsel for the appellant could not satisfy the Court in this regard. 12. Thus, since no question of law is found to be framed, the appeal is dismissed in the motion stage. 13. A Decree be drawn accordingly. 14. The parties to bear their own costs. Sd/- (Naresh Kumar Chandravanshi) Judge Bini