RAMHIN BAI Vs. RAM RATAN

JUDGEMENT

(1.) This second appeal preferred under Section 100 of the CPC by defendants No.1 & 2 / appellants herein was admitted for hearing by formulating the following substantial question of law: -

(2.) Original plaintiff Ramratan, S/o Dhanesar Sahu, filed a suit for declaration of title that his father were two brothers namely, Dhanesar & Dukla and the lands mentioned in paragraphs 2 and 5 of the plaint namely, 2.941 hectares & 1.290 hectares, respectively, were partitioned between him and Dukla and in the said partition, 2.072 hectares came in his share and 2.159 hectares fell in the share of Dukla which Dukla has bequeathed in his favour by way of will dated 1-7- 1988 (Ex.P-7) and as such, he is the title-holder of the entire suit land in exclusion of defendants No.1 & 2 who are daughters of Dukla, which defendants No.1 & 2 refuted by filing written statement stating inter alia that Sukuram had five sons namely, Nanhe, Jagesar, Suklal, Dhanesar & Dukla, and the plaintiff was son of Dhanesar, whereas defendants No.1 & 2 namely, Ramhin Bai & Surja Bai, respectively, are daughters of Dukla and defendant No.3 Prem Bai is daughter of Dhanesar and partition between Suklal, Nanhe and Jagesar, who are also brothers of Dhanesar and Dukla, had already taken place 50 years back from the date of filing of suit and as such, no will was ever executed vide Ex.P-7 in favour of the plaintiff by late Dukla.

(3.) The trial Court upon pleadings of the parties struck ten issues and held that Sukuram had five sons namely, Nanhe, Jagesar, Suklal, Dhanesar & Dukla and partition had already taken place between them 50 years back from the date of institution of suit and no will was ever executed by Dukla in favour of Ramratan on 1-7-1988 and accordingly, dismissed the suit. Questioning the judgment & decree of the trial Court, the plaintiffs preferred first appeal before the first appellate Court under Section 96 of the CPC in which the first appellate Court accepted the finding of the trial Court with regard to non-execution of valid will by Dukla in favour of plaintiff Ramratan, but the first appellate Court reversed the finding of the trial Court on issue Nos.2 & 3 and accordingly, decreed the suit granting declaration in favour of the plaintiffs that the plaintiffs are entitled for declaration of title with regard to ten khasras, total area 2.072 hectares against which defendants No.1 & 2 being daughters of Dukla preferred this second appeal under Section 100 of the CPC in which substantial question of law has been formulated which has been set-out in the opening paragraph of this judgment.