NARBADIYA BAI Vs. RAMDAS

JUDGEMENT

(1.) THIS appeal has been filed by the appellants being aggrieved by the judgment and decree dated 20.8.1998 passed by the 2nd Additional District Judge, Shahdol, in C.A. No. 24A/97, affirming the judgment and decree dated 26.2.1997, passed by the Civil Judge Class II, Shahdol, in C.S. No. 21 A/94, whereby the suit filed by the appellant/plaintiffs for declaration and partition relating to 1/3rd share of the lands comprising of Khasra Nos. 48, 91, 92, 96, 164, 243, 298, 308, 309, 310, 351, 366, 423, 424, 473, 516 and 518 total measuring 19.54 acres situated at village Samantpur and Khasra Nos. 37 and 54 situated at village Kodwar, has been dismissed.

(2.) IT is submitted by the learned counsel for the appellant/plaintiffs that the appellant No. 1 is the daughter of Shobhaiya who was the son of the original owner Charka and the appellant No. 2 is the daughter-in-law of Shobhaiya and wife of Atmaram son of Shobhaiya. It is submitted that the property initially belonged to Charka, who had three sons, namely, Shobhaiya, Ramdas and Ramswarit. It is stated that on the death of Shobhaiya and his son Atmaram the appellants/plaintiffs had sought a decree of declaration and partition in respect of l/3rd of the property of Charka which claim has been dismissed by both the Courts below.

(3.) IT is submitted by the learned counsel for the appellant/plaintiffs that the Courts below have erred in law in determining the date of death of Shobhaiya as well as Atmaram and has also erred in law in placing the burden of proof on the appellant/plaintiffs to establish the date of death of Shobhaiya and Atmaram. It is also contended that as the respondents asserted that Shobhaiya and Atmaram had died priod to 1956 but had failed to produce any document or evidence in that respect, adverse inference in respect of their claim should have been drawn by the Court below. It is submitted that as Sobhaiya and Atmaram had died subsequent to 1956, both the appellants are entitiled to l/3rd share in the property in accordance with the provisions of section 14 of the Hindu Succession Act.