1 2025:CGHC:61299 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 281 of 2018 Dr. Navratan Choudhary S/o Late Shri Ramprasad Choudhary Aged About 49 Years R/o Vrindavan Colony, Khamhardih, Raipur, Tahsil And District Raipur, Chhattisgarh (Defendant), District : Raipur, Chhattisgarh ... Appellant versus 1 - Dropati D/o Late Shri Ramprasad Choudhary Aged About 54 Years R/o Village Sirpur, P.S. And Tahsil Saraipali, District Mahasamund, Chhattisgarh (Plaintiff) 2 - State Of Chhattisgarh Through Collector Mahasamund, District Mahasamund, Chhattisgarh (Defendant) ... Respondents (Cause title taken from Case Information System) For Appellant : Mr. R.S. Patel, Advocate with Mr. Prakhar Dashore, Advocate For Respondent No.2/State : Mr. Arvind Dubey, Govt. Advocate Hon'ble Shri Justice Ravindra Kumar Agrawal Order on Board 16/12/2025 1. This is the second appeal under Section 100 of the Code of Civil Procedure, 1908 filed by the defendant No.1 against the impugned judgment and decree dated 27.01.2018, passed by the Additional District Judge, Saraipali, District Mahasamund (C.G.), in Civil Appeal No. 19-A/2016, whereby the first appeal filed by the appellant has been dismissed and the judgment and decree dated 30.07.2016, VED PRAKASH DEWANGAN Digitally signed by VED PRAKASH DEWANGAN Date: 2025.12.19 17:29:22 +0530 2 passed by learned Civil Judge Class-1, Saraipali, District Mahasamund, in Civil Suit No. 71-A/2014, has been affirmed. 2. The status of the parties, as shown in the suit, are being referred in the present appeal. 3. The plaintiff had filed the civil suit before the learned trial Court for partition, separate possession and permanent injunction over the suit property shown in schedule-A, annexed with the plaint. It is pleaded by the plaintiff in the plaint that, the plaintiff and defendant No. 1 are real sister and brother, and governed by Mitakshara branch of Hindu Law. Their father, Ram Prasad, died in the year 2005, and after his death, the suit property was recorded in the names of plaintiff as well as defendant No.1. The plaintiff as well as defendant No. 1 are having half equal share over the suit property, and when the plaintiff demanded her share, he denied to give her the partition of the property, and therefore, the present civil suit for partition, separate possession and permanent injunction has been filed by her. 4. The defendant No.1 contested the suit of the plaintiff and denied the plaint averments and pleaded in the written statement that, since there was no partition between the father of the parties and his brothers, and therefore, the brothers of their father are the necessary parties to the suit, but they have not impleaded as the party defendant, and therefore, the suit suffers from non-joinder of necessary parties. The plaintiff has already obtained her share of the property in the form of cash amount during the lifetime of their father and relinquished her share from the suit property. The mother of the parties, defendant No. 2- Sabya (since dead), had executed a 3 registered will in favour of the defendant No. 1 on 25.10.2012 and on the basis of the said will, the defendant No. 1 is alone the title and possession holder of the suit property, and therefore, no relief can be granted in favour of the plaintiff and her suit is liable to be dismissed. 5. Based on the pleadings made by the parties, the learned trial Court has framed issues and proceeded for trial of the case. During the trial, the plaintiff has examined Smt. Draupati/PW-1, Lochan Patel/PW-2, Ram Ratan Nag/PW-3, and has relied upon the documents; exhibit P-1, which is the partition deed between the father of the parties as well as his brothers, exhibit P-2, which is the mutation register, exhibit P-3 to P-17, which are the revenue records. The defendants have examined Dr. Navratan Choudhary /DW-1, Kishan Lal Choudhary/ DW-2, and have relied upon the documents; exhibit D-1, which is the will deed dated 25.10.2012. 6. After considering the evidence led by the parties, the learned trial Court comes to the conclusion that, the defendant No. 1 is entitled to the property of their mother- Savya (defendant No.2, since dead) and the plaintiff is only entitled for 1/3rd share of the suit property, and further holding that, the mother of the parties had executed a registered will on 25.10.2012 in favour of defendant No. 1, which has been proved by him. 7. The judgment and decree passed by learned trial Court was challenged by the defendant No. 1 before the learned First Appellate Court, and the First Appellate Court, after hearing the parties, dismissed the appeal filed by the defendant No. 1, which is under challenge in the present second appeal. 4 8. Learned counsel appearing for the appellant would submit that, the suit property is owned by their mother- Savya, who had executed a registered will on 25.10.2012, and by the said registered will, the defendant No. 1 is entitled for entire suit property. However, despite finding the genuineness of registered will, the learned trial Court as well as First Appellate Court have erred in holding that, the plaintiff is entitled for 1/3rd share of the suit property, the will dated 25.10.2012 is found proved, which is a valid deed of transfer of the suit property in favour of defendant No. 1. The learned trial Court, only on the ground that, the suit property is the ancestral property of the parties, and the plaintiff is having 1/3rd share from her birth, and their mother, Savya, was competent to execute the will only to the extent of her share over the suit property to bequeath the same, and therefore, in 1/3rd share of each of the parties, held that the plaintiff is only entitled for 1/3rd share, and remaining part will go to the defendant No. 1, as their mother has already executed the will in favour of defendant No. 1, which is an erroneous decision, and the same is liable to be set aside. He would further submit that, the entitlement of the suit property and validity of the will would give the substantial question of law for its determination in the present second appeal. 9. I have heard learned counsel for the parties and perused the record of the trial Court. 10. It is undisputed fact in the present case that, the suit property was inherited by the mother of the parties through her husband, and it is the pleadings of the plaintiff as well as the defendants, that the suit property was owned by the father of the parties as well as their three 5 other brothers, meaning thereby, the property was an ancestral property of the parties and inherited by Sabya through her husband and their ancestors. Learned trial Court as well as the First Appellate Court has considered the provisions of Section 6 of the Hindu Succession Act, 1956, and after considering the status of the female in the coparcenary property, has held that the female member of the joint family is also a coparcener in the ancestral property along with the male member of the family and having equal right and title over the property. On this analogy, the learned trial Court as well as First Appellate Court have held that, the plaintiff is having 1/3rd share, defendant No.1 is having 1/3rd share, and their mother, Sabya, is also having 1/3rd share. The learned trial Court as well as the First Appellate Court has further considered that, since the will has been found proved in favour of the defendant No.1, executed by their mother, Sabya, which can be validated only to the extent of the share of their mother i.e. 1/3rd share of the total property, which goes in favour of the defendant No.1, and thereby held that, the plaintiff is entitled only to the 1/3rd share of the total suit property. 11. The findings recorded by the learned trial Court as well as First Appellate Court appears to be correct findings recorded under the facts and circumstances of the case as well as under the provisions of the Hindu Succession Act. The appellant could not demonstrate any perversity in the findings recorded by the learned trial Court as well as First Appellate Court, which gives rise to any substantial question of law. 6 12. In the matter of “Vishwanath Agrawal vs. Sarla Vishwanath Agrawal” 2012 (7) SCC 288, the Hon’ble Supreme Court held in paragraph 36 & 37 as under: “36. In Major Singh v. Rattan Singh (1997) 3 SCC 546: AIR 1997 SC 1906) it has been observed that when the courts below had rejected and disbelieved the evidence on unacceptable d grounds, it is the duty of the High Court to consider whether the reasons given by the courts below are sustainable in law while hearing an appeal under Section 100 of the Code of Civil Procedure. 37. In Vidhyadhar v. Manikrao(1999) 3 SCC 573, it has been ruled that the High Court in a second appeal should not disturb the concurrent findings of fact unless it is shown that the findings recorded by the courts below are perverse being based on no evidence or that on the evidence on record no reasonable person could have come to that conclusion. We may note here that solely because another view is possible on the basis of the evidence, the High Court would not be entitled to exercise the jurisdiction under Section 100 of the Code of Civil Procedure. This view of ours has been fortified by the decision of this Court in Abdul Raheem v. Karnataka Electricity Board18. 13. In the matter of “State of Rajasthan and Others vs. Shiv Dayal and Another” 2019 (8) SCC, 637, the Hon’ble Supreme Court held in paragraph 16 & 17 as under: “16. When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded dehors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against b any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably 7 have reached. (See observation made by learned Judge, Vivian Bose, J., as his Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar v. Dashrath Narayan Chilwelkar para 43.) 17. In our opinion, if any one or more ground, as mentioned above, is made out in an appropriate case on the basis of the pleading and evidence, such ground will constitute substantial question of law within the meaning of Section 100 of the Code.” 14. From the aforesaid discussions, I do not find any question of law, much less substantial question of law involved in the present appeal for its determination, and accordingly the present second appeal is dismissed without noticing to the other side. 15. Parties shall bear their own costs. Sd/- (Ravindra Kumar Agrawal) Judge ved