TIHARURAM SAHU Vs. SANTOSHI

JUDGEMENT

(1.) Heard on the question of admission and formulation of substantial question of law in this second appeal preferred by the defendants under Sec. 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC").

(2.) Plaintiffs herein filed a civil suit bearing No. 25A/2006, which was decreed by learned trial Court on 13/04/2017 holding that each of the two plaintiffs are entitled for 1/3rd share in the suit property. On appeal being preferred by the defendants bearing No. 10A/2017, learned first appellate Court modified the decree of the trial Court and held that each of the plaintiffs are entitled for 1/8th share in the suit property and the defendants namely Sunita, Toman, Pankaj, Deva and Rekha are also entitled for 1/8th share in the suit property, being the illegitimate children of Tiharuram out of his customary marriage with Puniya Bai, his second wife, which has been questioned in this second appeal.

(3.) Mr. Viprasen Agrawal, learned counsel for the defendants submits that learned first appellate Court has committed legal error in holding that each of the plaintiffs are entitled for 1/8th share in the suit property. It ought to have separated the share of Tiharuram's sister namely Rukhmani Bai, before defining the share, as Tiharuram was holding the share of his sister Rukmani Bai. As such, the finding recorded by the first appellate Court is contrary to the fact and law available on record and being perverse, it gives rise to substantial question of law for determination in this second appeal.