BHAGELA SAHU Vs. RAJU SAHU

JUDGEMENT

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

(2.) It is the case of the plaintiff that the suit property mentioned in Schedule A appended with the plaint fell in the share of Bhagela Sahu - defendant No.1 in the family partition between his brother and his father and the property mentioned in Schedule B appended with the plaint was purchased out of the income of the property shown in Schedule A of the plaint. The plaintiff filed suit for declaration of title, partition, separate possession and mesne profit stating inter alia that he is son of Bhagela Sahu out of his marriage with first wife Kumari Bai, whereas defendant No.2, Chandrakali and Dhaneshwari Bai are son and daughters of Bhagela Sahu out of his marriage with second wife Kunti Bai. Defendant No.1 Bhagela Sahu filed written statement and disputed the paternity of the plaintiff stating inter alia that the plaintiff is not his son and therefore not entitled for partition over the suit land, that too during his lifetime.

(3.) The trial Court after appreciating oral and documentary evidence available on record, dismissed the suit holding that the plaintiff is not son of defendant No.1, but in appeal preferred by the plaintiff before the first appellate Court, the first appellate Court held that the plaintiff is the legitimate son of Bhagela Sahu - defendant No.1 out of his marriage with Kumari Bai and defendant No.2, Chandrakali & Dhaneshwari Bai are son & daughters of Bhagela Sahu out of his marriage with Kunti Bai - second wife, during the subsistence of marriage with Kumari Bai (without chod chutti) and accordingly held that the plaintiff is entitled for half share in the suit property against which this second appeal under Section 100 of the CPC has been preferred by defendants No.1 & 2 in which substantial questions of law have been formulated which have been set-out in the opening paragraph of this judgment.