SOORAJ BAI Vs. HIRAN BAI

JUDGEMENT

(1.) The present Second Appeal has been filed by the appellant/defendant No.1 under Sec. 100 of the Code of Civil Procedure, 1908, assailing the judgment and decree dtd. 29/1/2005 passed by the learned Additional District Judge, Balod, in Civil Appeal No. 54-A/2002 (Smt. Hiran Bai & Anr. V Smt. Suraj Bai & Ors.), whereby the judgment and decree dtd. 13/9/2002 passed by the learned Civil Judge, Class-I, Balod, in Civil Suit No. 40-A/1988 (Smt. Hiran Bai & Anr. V Smt. Suraj Bai & Ors.) has been reversed. For the sake of convenience, the parties are referred to as per their status before the Trial Court.

(2.) The instant appeal was admitted by this Court on 5/4/2005 on the following substantial question of law:

(3.) (a) The facts of the case are that Sagnuram (died) was the owner of 2.47 hectares of agricultural land situated at Village Dhameli. The first wife of Sagnuram, namely Nikmi Bai expired, and at that time defendant No.1, Suraj Bai (appellant herein), who is the daughter of Sagnuram and Nikmi Bai, was about five years of age. After the death of his first wife, Sagnuram, about 37 years prior to the institution of the suit, in accordance with the prevailing customary practice (Chudi marriage), brought Gwalin Bai, a widow, as his wife from her parental home at Village Birwad. At that time, the plaintiffs, namely Hiran bai and Sukhiya Bai, aged about five years and two years respectively, were living with their mother Gwalin Bai. It was noted that Sagnuram brought Gwalin Bai along with the plaintiffs to his house, maintained them, brought them up, and solemnized their marriages. Subsequently, Sagnuram died on 29/12/1987, whereafter his widow Gwalin Bai and daughter of first wife Nikmi Bai namely; Suraj Bai (defendant No.1) succeeded to his estate. Subsequently, Gwalin Bai died on 3/2/1988. After her death, except for the plaintiffs and defendant No.1, there remained no other legal heirs of Sagnuram. It was also noticed that after the death of Sagnuram and Gwalin Bai, the names of the plaintiffs and defendant No.1 were recorded in the revenue records in respect of the suit land. However, defendant No.1 objected to the said entry by contending that the plaintiffs were the children of Gwalin Bai from her previous husband and, therefore, had no right, title or interest in the property of Sagnuram. Consequently, the plaintiffs instituted the civil suit seeking declaration of title to half share, partition, and delivery of possession over the suit land.