NAND KISHORE Vs. RAMESH CHANDRA

JUDGEMENT

(1.) IT is a second appeal filed under Section 100 of CPC by the defendant No. 1 against the judgment/decree, dated 12-9-2002, passed by learned VIIth Additional District Judge, Indore in C. A. No. 9 of 2002, which in turn arises out of Civil Suit No. 55-A of 1995, decided on 6-3-2002, by Civil Judge, Class II, Depalpur. It is being contended by the appellant in this second appeal that the appeal involves substantial question of law within the meaning of Section 100 of CPC and hence, it is liable to be admitted for final hearing. So the question that arises for consideration in this second appeal is, whether appeal involves any substantial question of law within the meaning of Section 100 ibid ?

(2.) THE dispute relates to a suit land which originally belonged to one Onkar Lal. He died intestate leaving behind his wife Kamla Bai and two sons Ramesh Chandra and Nand Kishore, i. e. , plaintiff and defendant respectively. One son, ie. , Ramesh Chandra and his mother Kamla Bai filed a suit out of which this second appeal arises against Nand Kishore for partition and possession of the entire suit land belonging to Onkar Lal on the assertion that on the death of Onkar Lal, the suit land devolved equally on the survivors, i. e. , two sons and widow in equal share - each getting l/3rd. It was alleged that defendant alone had no right to remain in possession of suit land but he (defendant) is entitled to remain in possession of suit land to the extent of l/3rd only, as against both the plaintiffs who are entitled to inherit and has in fact inherited l/3rd each, i. e. , 2/3rd. Since, during pendency of the suit, Kamla Bai died leaving behind her two sons but she executed a Will in favour of plaintiff - son - Ramesh in respect of her l/3rd share. This is how Ramesh, i. e. , plaintiff claimed 2/3rd share in the suit land as against defendant's share of 1/3rd. The defence of defendant was two fold. In the first place he claimed to have become owner of the suit land by virtue of adverse possession. In the second place he denied the validity and genuineness of the Will executed by Kamla Bai, i. e. , his mother in plaintiff's favour. It is on the basis of this defence, the defendant contended that plaintiff is not entitled to claim any share in the suit land and hence, suit be dismissed. Parties led evidence on these pleadings.

(3.) BOTH, Trial Court as also the First Appellate court decreed plaintiff's suit. It was held that Will executed by Kamla Bai is valid and genuine. It is legal and properly executed in favour of plaintiff. It was then held that defendant has failed to prove his defence of adverse possession on the entire land and hence, has no right to remain on the entire land, as claimed by him. It is with these findings, plaintiff's suit stood decreed to the extent of 2/3rd share, i. e. , his l/3rd share which he got by inheritance from his father and l/3rd share of his mother which he got by Will. It is against this decree, the defendant has come up in second appeal under Section 100 of CPC.