1 2025:CGHC:36466 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 188 of 2018 1. Jaleshwar S/o Bodhuram Kurmi Aged About 31 Years R/o Village Pacheda, Tahsil Janjgir, District Janjgir-Champa, Chhattisgarh. 2. Dileshwar S/o Bodhuram Kurmi Aged About 26 Years R/o Village Pacheda, Tahsil Janjgir, District Janjgir-Champa, Chhattisgarh. 3. Kaleshwari Bai Wd/o Bodhuram Kurmi Aged About 63 Years R/o Village Pacheda, Tahsil Janjgir, District Janjgir-Champa, Chhattisgarh. 4. Rukmani Bai D/o Bodhuram Kurmi Aged About 36 Years R/o Village Mununand, Tahsil Janjgir, District Janjgir-Champa, Chhattisgarh. 5. Rahin Bai D/o Bodhuram Kurmi Aged About 33 Years R/o Village Pankha Dafai, Tahsil Korba, District Korba, Chhattisgarh (Plaintiffs), ... Appellants versus 1. Padma Bai D/o Bodhuram Kashyap Aged About 39 Years Caste Kurmi, R/o Village Pacheda, Tahsil Janjgir, District Janjgir-Champa, Chhattisgarh 2. State Of Chhattisgarh Through Collector Janjgir, District Janjgir- Champa, Chhattisgarh (Defendants) ... Respondents For Appellants : Mr. H.B. Agrawal, Sr. Advocate along with Ms. A. Sandhya Rao, Advocate For State : Mr. Kalpesh Ruparel, Panel Lawyer Hon'ble Shri Justice Narendra Kumar Vyas Judgment on Board 28.07.2025 1. Heard on admission. BHUMIKA ANGARE Digitally signed by BHUMIKA ANGARE Date: 2025.09.30 16:33:20 +0530 2 2. The second appeal has been filed by the appellants/plaintiffs under Section 100 of the C.P.C. against judgment and decree dated 09.05.2016 passed by Additional District Judge (F.T.C.), Janjgir, District Janjgir Champa (C.G.) in MJC No. 9/2016 decided arising out of Civil Appeal No. 06-A/2013 arising out of judgment and decree dated 24.08.2013 passed in Civil Suit No. 10-A/2011 by Second Civil Judge, Class-II, District Janjgir-Champa (C.G.). 3. For the sake of convenience, the parties shall be referred to in terms of their status in Civil Suit No. 10-A/2011. 4. The brief facts, as reflected from the plaint averment, are that the plaintiffs have filed suit for declaration of title and permanent injunction mainly contending that: (a) It is the case of the plaintiffs that the plaintiffs and defendants are governed by Banaras Mitakshara Branch. The genealogy is also mentioned in plaint according to which Bodhu and Kaleshwari are husband and wife and have 05 children namely Jaleshwar (plaintiff No. 1), Dileshwar (plaintiff No. 2), Padma Bai (defendant No. 1), Rukmani (plaintiff No. 4) and Rahin Bai (plaintiff No. 5). It is the case of the plaintiffs that the land situated at village Pacheda Patwari Halka No. 38 bearing Khasra No. 10/1 area 0.82 acres and khasra No. 755/2 area 1.29 acre total area admeasuring 2.11 acre is ancestral property as it has been purchased from the nucleus of joint Hindu property (hereinafter referred to as “suit property”) and same has been mixed with the joint family property. (b) It is also case of the plaintiffs that Bodhu expired in the year 2004 and Bodhu and plaintiffs No. 1 & 2 have 1/3rd share each being 3 coparcener. After death of Bodhu, his 1/3rd share was distributed as 1/3rd share to plaintiffs and 1/6th share to defendant No. 1 as such plaintiffs No. 1 & 2 got 7/18th each and plaintiffs No. 3 to 5 got 7/18th and defendant No. 1 got 1/18th share in the suit property. 5. It is also the case of the plaintiffs that Bodhu expired without execution of the Will but on the basis of forged Will the defendant No. 1 has recorded the suit property in her name and also mutated the same, therefore, they have preferred an appeal before Sub-Divisional Officer, Janjgir which has been dismissed on 28.05.2010, therefore, they have filed a suit for declaration that the plaintiffs are title holder of the suit property to the extent of 17/18th share and the defendant may restrained from interfering in peaceful possession of their share. 6. Defendant No. 1 has filed written statement denying the allegations made in the plaint and also specifically denied that her father Bodhu has mixed his self acquired property in the ancestral property. It is further contended that the land was purchased by defendant’s father Bodhuram from his own money and being pleased with the care taken by defendant, Bodhuram executed a registered Will dated 16.03.2003 in her name. On the strength of the Will, she has mutated her name in the revenue record. It is also denied that the plaintiffs are entitled to get any share in the suit property as it is self acquired property of the father of the plaintiffs and defendants and would pray for dismissal of the suit. 7. Learned trial Court on the pleadings of the party has framed as many as 04 issues. Issue No. 1 and 3 are relevant therefore they are being extracted below: ^*1- D;k oknhx.k okn Hkwfe ds 17@18 ds Lokeh gksdj izfr0 dz0 1 ds 4 lkFk mlds dCts esa gSa 3- D;k izfroknh dks oknhx.k ls 5000@& :0 crkSj izfrdkjkRed O;; izkIr djus dk vf/kdkj gS\^* 8. Thereafter additional issue was framed which reads as under: ^*D;k ekStk ipsM+k i0g0y0 38 fLFkr oknHkwfe] ftldk [kljk uacj 10@1 jdck 0-82 ,dM+] [kljk uacj 755 jdck 1-29 dqy ;ksx jdck 2-11 ,dM+ gS] oknhx.k ,oa izfrokfnuh dh iSr`d laifRr gS\^* 9. The plaintiffs and defendants have examined their witnesses. Learned trial Court on the basis of evidence and material on record has dismissed the suit and while dismissing the suit in detail has discussed the material and evidence, particularly in paragraph 12 wherein it has been stated that the plaintiffs are unable to produce any evidence to contend that the suit property has been purchased from the nucleus of the joint Hindu family property and similarly, defendant No. 1 is unable to prove the execution of the Will as no attesting witness have been examined which is mandatory in compliance of Section 68 of the Indian Evidence Act accordingly and it has held that the Will has not been proved in accordance with law, but the plaintiffs are unable to place any sufficient material or evidence to record the finding that the suit property has been produced from the nucleus and fund generated from the ancestral property is being used by Bodhuram to purchase the same. The defendant No. 1 in her evidence before the trial Court has stated that Bodhuram was working as Government servant and retired as Peon in the School Education Department and also stated that before 2 or 3 years of his death, he has purchased the property. The defendant No. 1 has also stated that Bodhuram has 7 acre land and before his death he has done the partition of the properties, but at the 5 time of partition no share was given to the defendant No. 1. The trial Court has also recorded its finding that Bodhu was working as Peon in the School Education Department and from there he is getting good amount of salary and he may have purchased suit property and it is self acquired property therefore he can give it to anyone. 10. Being aggrieved with this judgment and order, the plaintiffs have preferred first appeal before First Appellate court which has also been dismissed. The Appellate Court vide its judgment dated 14.05.2014 has dismissed the appeal by recording its finding that learned trial Court has rightly recorded the finding that the plaintiffs are unable to prove that the suit land is ancestral property. 11. The plaintiffs have filed a review application under Order 47 Rule 1 read with Section 114 of the C.P.C. before the learned first appellate Court. Learned First Appellate Court has also dismissed the review application after recording its finding that no illegality or irregularity has been committed by it or there is no apparent mistake on the face of the records which requires review of the judgment and decree passed by it. 12. Being aggrieved with the orders of both the Court the plaintiffs have preferred the instant appeal. 13. Learned Senior Advocate for the appellants would submit that the findings recorded by the trial Court and affirmed by the Appellate Court that the suit property is not ancestral property is perverse and suffers from perversity and illegality and warrants interference. He would further submit that the trial Court has recorded its finding that the Will executed in favor of defendant No. 1 is not proved, therefore, this 6 property should have been distributed among all the legal heirs of the Bodhu Ram and would pray for admission of appeal as substantial question of law exists in the present appeal. 14. Learned counsel for the State would submit that the judgment and decree of the trial Court is legal, justified and does not warrant interference by this Court. 15. I have heard learned counsel for the parties and perused the documents placed on record with utmost satisfaction. 16. From the records, it is quite vivid that the learned trial Court in paragraph 13 of his judgment has recorded finding of fact that the plaintiffs are unable to establish that the suit property is ancestral property as no material was placed on record as to how the fund accrued from the ancestral property is being utilized by Bodhu to purchase the suit property. On the contrary there was sufficient evidence brought on record by the defendant No. 1 that Bodhu was working as Peon in the School Education Department, therefore, he must have been getting good amount of salary and from that only he can purchase the suit property and there were no such material available to rebut such finding, as such, its a concurrent finding of facts which is neither suffers from perversity or illegality warranting interference by this Court. 17. Even otherwise, it is well settled position of law that the suit property has been acquired from the nucleus of the joint family property and burden lies upon the person who claims that the property has been purchased from the nucleus of joint Hindu family property. The trial Court has recorded finding of fact with regard to concurrent finding of 7 facts that the plaintiffs are unable to establish that the suit property is not self acquired property and it has been generated from the nucleus of the ancestral property which has been rightly affirmed by the Appellate Court on re-appreciation of the evidence. 18. From the above stated discussion and facts of the case, I do not find any illegality or irregularity in the judgment and decree passed by learned trial Court which has been affirmed by the learned first appellate Court. As such, no substantial question of law is required to be framed which is sine-quo-non for admission of the Second Appeal. The appeal deserves to be dismissed at the admission stage itself, accordingly it is dismissed. 19. No order as to costs. 20. A decree be drawn up accordingly. Sd/- (Narendra Kumar Vyas) Judge Bhumika