BIHARI Vs. KUWARIYA BAI

JUDGEMENT

(1.) The substantial question of law involved, formulated and to be answered in this defendants' second appeal is as under: -

(2.) The suit property was originally held by Hangru and after death of Hangru, the suit property was succeeded by his sons namely Shivcharan and Bihari. The plaintiffs are successor-in-interest of Shivcharan, whereas defendant No.1 is Bihari and defendants No.2 to 4 are close relatives of defendant No.1-Bihari. The plaintiffs filed a suit for declaration of title, possession and permanent injunction stating inter-alia that the suit property fell in share of Shivcharan on partition and during his life-time, he was in possession and after his death, they are in possession of the suit property, as such, they are entitled for declaration of title, possession and permanent injunction and also claimed that they have perfected their title by way of adverse possession.

(3.) The defendants set-up a plea that no partition has been taken place between Shivcharan and Bihari, as such, the plaintiffs are not entitled to decree for declaration of title, possession and permanent injunction. The trial Court after appreciating oral and documentary evidence available on record, by its judgment and decree dated 26.7.90 held that the suit property fell in share of Shivcharan on partition between Shivcharan and Bihari and defendants No.1 and 3 have forcibly taken possession of the suit property and interfered with the plaintiffs' peaceful possession and also held that they have also perfected their title by way of adverse possession. The first appeal taken by the defendants was partly allowed by the first appellate Court holding that the plaintiffs have not perfected their title by way of adverse possession, however, maintained the finding that there is prior partition between Shivcharan and defendant No.1-Bihari and therefore, the plaintiffs have succeeded the property of Shivcharan after his death, which fell in his share on partition. Being aggrieved and dissatisfied with the judgment and decree of the first appellate Court, this second appeal under Section 100 of the Code of Civil Procedure, 1908 has been filed by the appellants/defendants, in which, substantial question of law has been formulated and set-out in the opening paragraph of this judgment.