HEMWATI BAI Vs. BAHADUR

JUDGEMENT

(1.) This is the Plaintiffs' Second Appeal filed under Section 100 of the Code of Civil Procedure. It arises out of judgment and decree dated 28.2.89 passed by the District Judge, Durg, in Civil Appeal No. 1 -A/88 arising out of judgment and decree dated 28/9/87 passed in Civil Suit No. 9-A/86 by the Fourth Civil Judge, Class-II, Durg. The trial Court decreed the entire claim of the Plaintiffs. However, in the appeal, the aforesaid decree passed by the trial Court was reversed and the appeal to the extent indicated in para 20 of the impugned judgment was allowed.

(2.) This appeal was admitted for hearing on 07.03.1990 on the following substantial questions of law:

(3.) The brief facts are that the suit lands, which are the agricultural lands and are situated in 2 villages - Nawagarh and Parsada, were the properties belonging to one Biharilal. Biharilal died in the year 1950. He was having two wives. Kejabai was the daughter of Biharilal, who was from the side of the first wife and Sonarin Bai was his second wife, having two daughters namely Hemwati Bai and Jagati Bai, who are the Plaintiffs in the suit. After the death of Biharilal in the year 1950, his properties were recorded in the name of Sonarin Bai. When certain disputes were raised in a village panchayat dated 21/3/1951, the entire properties of Biharilal were divided into 4 shares. One share was given to Hemwati Bai, another share was given to Jagati Bai, third share was given to Kejabai and the fourth share was retained by Sonarin Bai herself. Sonarin Bai died in the year 1966. It is stated that after the death of Sonarin Bai, her share was again divided into three parts and Kejabai, her step daughter, Hemwati Bai and Jagati Bai, her real daughters again received 1/3 share each. Kejabai remained in possession of the property allotted to her in the Panchayat partition of the year 1951 and also received by her on the death of Sonarin Bai in the year 1966. Kejabai died issueless in the year 1969. The original Defendant No. 1 -Narayan was the husband of Kejabai and Defendant No. 2 namely Bahadur, the present Respondent No. 1, was the nephew of Narayan. It is stated that Kejabai has executed an unregistered Will deed dated 16.10.69 in favour of Bahadur -Defendant No. 2 and has bequeathed the properties contained in the Will in his favour. The dispute arose after the death of Kejabai in the year 1969, when the properties were claimed by the Plaintiffs. Narayan and Bahadur filed their joint written statement denying the claim of the Plaintiffs. It was pleaded by them that the properties owned by Kejabai and contained in the Will were bequeathed to Bahadur on 16/10/1969 by Ex. D-l. They also pleaded that since both of them are in actual physical possession of the entire property received by Kejabai in the above partition since the life time of Kejabai, they have perfected their title by way of adverse possession.