RESHAMLAL BASWAN Vs. BALWANT SINGH JWALASINGH PUNJABI

JUDGEMENT

(1.) WHETHER the appellant, an "illegitimate son" of deceased Baswan, is the 'son' of said Baswan, within the meaning of Section 8 read with the schedule to the Hindu Succession Act, 1956, is the crucial question that this Court is called upon to decide in this second appeal under Section 100, Civil Procedure Code by the defendant. The appeal is directed against the judgment and decree dated 25 -11 -1982 passed by IV Additional Judge to the Court of District Judge, Bilaspur in Civil Appeal No. 31 -A/80 arising out of judgment and decree dated 29 -12 -1976 passed by Civil Judge, Class II in Civil Suit No. 14 -A/1971 decreeing that the respondent/plaintiff Balwant Singh was the owner of the suit -lands and was entitled to possession thereof.

(2.) RESPONDENT Balwant Singh filed the present suit claiming possession of lands described in 'Schedule A to the plaint. According to him, these lands belonged to Baswan, who died sometime in 1966 leaving behind respondent Laxmidayal, his son from first wife, his second wife, Smt. Shyambai, now dead, and his two daughters, respondents 7 and 8. He claims to have purchased suit -lands from these legal heirs of Baswan. He alleged that respondent Jhunjhibai was the legally married wife of one Pusau and had developed illicit relationship with Baswan from whom she had appellant Reshamlal and respondents 3, 4 and 5 as her offsprings. Neither Jhunjhibai nor her offsprings were heirs of Baswan. He further alleged that since these people disturbed his possession and the Sub -Divisional Officer, Mungeli by his order dated 1 -6 -1970 handed over possession of the suit -lands to them, it was necessary for him to file the present suit for obtaining possession. The appellant, his mother respondent Jhunjhibai and his brothers and sisters, respondents 3 to 5, defended the suit on the ground that they were legitimate sons and daughters of Baswan and had interest in the suit -property and, therefore, they are entitled to remain in possession. The learned trial Judge, on appreciation of evidence, came to the conclusion that respondent Jhunjhibai was not a married wife of Baswan and, therefore, she could not inherit his properties as his widow. The learned Judge further held that she could not have got remarried during the life time of her first husband. As a necessary consequence, the learned Judge held that appellant and respondents 3 to 5 were not heirs of Baswan. That is how, the suit was decreed. The learned lower appellate court affirmed these findings and dismissed the appeal. It may be mentioned that though respondents 2, 3, 4 and 5 along with the appellant have suffered the decree in the hands of the trial court, they remained satisfied with the same and did not appeal. The appeal before the lower appellate court and also in this court is by one of the 5 suffering the decree. The decree in so far as respondents 2 to 5 are concerned, must be deemed to have become final.

(3.) THIS court, while admitting this appeal for final hearing on 19 -3 -1983, had framed the following substantial question of law for its decision : -