Lalit Kumar And Others v. Smt.Chandrabati And Others

4X W V, M @

IN THE HIGH COURT OF JUDICATURE AT BILASPUR

1CHHATTIsGARH) SECOND APPEAL No.

??- 12006 \ APPELLANTS /1.

Lalit Kumar aged about 35 years Defendants S/o Shri Dev Singh /g Dsv Singh aged about 70 years, S/ '

o Prabhu M'4 '

M' 2.

Kanchan Bai aged about 65 years u".

.

W/o Dev Singh Uttar Bastar Kanker m b j A11 by Caste Halba, R/o Vlllage Rahlmat Ba1 aged about 30 years Lohattar Tahs1l Bhanupratappur Dlstt

VERSUS

w RESPOFDENTS Smt Chandrabau aged about 48 years 92'

Smt TulslBal aged about 45 years S Both D/o Ramprasad by caste Halba R/ o Vlllage Lohattar, Tahs11 Bhanupratappur Distt. Uttar Bastar Kanker 3.

The State of Chhattisgarh through Collector, Kanker W CIVIL PROCEDURE 1908

NAFR HIGH COURT OF _\ S.A No.77 of 2006 Lalit KumarAnd Others ---- Appellants

Versus

Smt.Chandrabati And Others ------Respondents ForAp;iell_aht:

For__Respondents Shri Parag Kotecha, Advocate;

-For Respondent No.3/State:

_ Shri Vijay Bahadur Singh. Panel Lawyer.

:Q Mwf"

s i Singlg Bench:Hon'ble Shri Sanigy Agrawal, ,1 Order 0n Board '

05.07.2017 1.

This is the Defendant's Appeal preferred under Section 100 of the Code of'Civil Procedure, questioning judgment and decree dated 17.10.2005 passed by the 1stAdditional District Judge, Kanker, Distt. Kanker K;

L in Civil Appeal No1-A/2005 by which the lower appellate Court, while affirming the judgment and decree dated 27.11.2004 passed 1st Civii Judge Class Bhanupratappur In Civ1l Suit No 6 A/2000 has dismissed the Appeal 2.

The undisputed facts of the case are that the Plaintiffs instituted a swt for declaration title and inJunction submitting inter a/ia that suit property situated at village Lohattar described in Plaint Schedule-A is recorded in the joint name of their father namely Ram Prasad along with his brothers namely Bharose and Dev Singh.

According Plaintiffs Bharose expired on 16.8.1985 ssueless and therefore after the death of Ram Bharose Plaintiffs are swt which described in Plaint Schedule-A in equal share along with the Defendants. lt is

pleaded further that Defendant No.1-Lalit Kumar has obtained revenue papers mutated in his name on the ground that he is the son of Ram Bharose and revenue record was mutated without their knowledge.

It pleaded further that another suit property situated at village Sonadai descried Plaint Schedule-B is the self-acquired property of their father Ram Prasad who acquired purchasing same from one Abdul Rashid and therefore, they alone are inherit the said property of Schedule-B after the death of their father Ram Prasad.' It is pleaded further A('

that Defendant No.1-Lalit Kumar has demanded illegally the suit property from them in the year 2000, therefore they have been constrained to file the Suit in the instant nature,instituted on 28.6.2000.

3.

The Defendants have contested the aforesaid claim by submitting inter alia that the suit property described Plaint Schedule-A is recorded only the name of Ram Bharose and pleaded further that Lalit Kumar although the son of Dev Singh but was adopted by his uncle Ram Bharose, therefore, being an adopted son, he alone left lt is contested further on the ground that under their Halba caste community, Plaintiffs being daughters, would not be father's property.

The Defendants have contested further on the ground that the suit as framed and. instituted is apparently barred by time. 4.

ln support, the Plaintiffs have examined as many as 4 witnesses while .the Defendants have examined 3 witnesses.

5.

The trial Court, after considering the evidence led by the parties, has come to the conclusion that the suit property described in Plaint Schedule-A is M recorded jointly in the name of Ram Prasad, Ram Bharose and Dev Singh and is not in the name of Ram Bharose alone as stated by the Defendants. The

trial Court has held further that another' suit propeny which was situated at village Sonadai (Schedule-B) was a self-acquired property of their father Ram Prasad.

it held further that Lalit Kumar, Defendant No.1 is not the adopted son, of Ram Bharose and that by observing further that the suit was filed well within period limitation, has ultimately decreed suit as claimed Plaintiffs.

6.

The aforesaid finding of the trial Court has been affirmed further in an Appeal preferred by the Defendants.

7., Being aggrieved, Defendants have preferred Appeal.

Shri Parag Kotecha, learned Counsel for the Appellants submits that the judgment and decree as passed by the Courts below is apparently contrary to law. He submits that the Plaintiffs have admitted in their evidence that after the death of their father. the daughters under their Halba caste community, would inherit only in the absence of son.

While ignoring this material piece of evidence, the trial Co'urt has erred holding that the daughters are entitled inherit the left by their predecessor interest namely Ram Prasad and Ram He submits further that the finding with regard to the adoption Defendant No.1-Lalit Kumar is also not sustainable in View of the evidence led Defendant's witnesses.

Lastly, he submits that the suit was wholly barred by time and therefore, the Courts below ought to have dismissed the suit its entirety on point limitation.

He therefore submits that the . judgment and decree as passed by the Courts below are not sustainable and deserves to be set'aside.

8.

l have heard learned Counsel for the Appellant and perused the entire at"

record carefully.

9.

Undisputedly, the parties belong to Halba caste and are governed by

their own law and the Hindu Succession Act, 1956 is not applicable to them. It true that Plaintiff witness No.1-Tulsi has admitted paragraph-4 of her statement that in Halba caste, daughters have no right to inherit the property when sons are there.

But, if we examine the entire evidence of this witness, then it would lead to an irresistible conclusion that she has also stated that daughters are also entitled to inherit the property after the death of their father in their Halba caste community.

Defendant No.2-Bisahu has also admitted the said fact particularly at paragraph-4 of his evidence that daughters are also their Halba caste community.

While examining the evidence as led parties, trial Court as well as the lower appellate Court both have concurrently come to the conclusion that Halba caste community, daughters are also entitled to inherit the property left by their predecessor in interest.

Consequently, l do not find any infirmity as far as this point is concerned and therefore, i affirm the said finding and hold that daughters are entitled to inherit the property in their Halba caste community. 10.

As far as the question with regard to the adoption of Defendant No.1 - Lalit Kumar by his uncle Ram Bharose is concerned, it is clear from perusal of the evidence of both the parties that Defendant No.1-Lalit Kumar has failed completely establish fact that he was ever adopted In view of this fact based on proper appreciation of the evidence of both the parties, Defendant No.1-Lalit Kumar cannot be held to be the adopted son of Ram Bharose and would inherit the property left by him, who expired on 16.8.1985 issueless.

This finding is also based upon the proper appreciation of the evidence.

Therefore, l affirm the same as well.

A...

11.

As far as the question of limitation is concerned, it is settled principles of law that the question of limitation is the the mixed question of law and facts

and since the Courts below have already arrived at a conclusion that the suit is instituted well within time, therefore, under such circumstances, it not \ permissible at stage disturb finding.

Therefore, l affirm the finding ofthe Courts below in this regard also. 12.

In view of above discussions, i do not find any question of law, much less substantial questions law which arise for determination Appeal.

Accordingly, the Appeal being devoid of merits is hereby dismissed at IT'y fELd'AL-e the admission stage itself.

There shall be no order as to cos Sd/- W'évlvgtavval) JUDGE