Decided on November 21,2005

Buddeshwar Singh Appellant
Thakur Bhupendra Singh Respondents


DHIRENDRA MISHRA, J. - (1.) THE appellants/plaintiffs have preferred this second appeal against the judgment and decree dated 16.1.2003 passed by Additional District Judge, Janjgir district Bilaspur in Civil Appeals No. 21 -A/2002 and 26-A/2002 arising out of original judgment and decree dated 22.3.2002 passed in Civil Suit No. 208-A/1996. The first Appellate Court however dismissed the Civil Appeal No. 26-A/2002 and allowed the Civil Appeal No. 21-A/2002 filed by respondent No. 1 herein setting aside the judgment and decree passed in Civil Suit No. 208-A/1996.
(2.) THE facts of the case in brief are that the plaintiffs filed a civil suit averring that they are the sons and daughters of late Shyam Sundar Singh who died in the year 1964. Dr. Bhanu Pratap Singh being the eldest son of late Shyam Sundar Singh was the Karta of the family who succeeded to the movable and immovable property after the death of his father. Partition had not taken place in their family. Dr. Bhanu Pratap Singh got the land of village Chhita Pandariya bearing Khasra No. 30, divided into two parts i.e. Khasra No. 30/1 area 5.27 acres and Khasra No. 30/2 area 30 acres and got the same recorded in his name without the knowledge of other heirs. He also purchased land in village Sarmani and Pondi Sankar in his name through the sale proceeds of the joint property and he as well as the plaintiffs were in joint possession of the same Dr. Bhanu Pratap Singh executed a registered will in favour of defendant No.1 with respect to his 1/3rd share of land recorded in their names jointly and sought a declaration that will dated 21 11.1989 is illegal, void and ineffective. A further declaration was sought to the effect that Dr. Bhanu Pratap Singh was entitled only for 1/5th share in the coparcenary property and perpetual injunction against defendant No. 1. Subsequently, by way of amendment another relief was alternatively prayed for with respect to the possession of the land bearing Khasra No.30, area 30 acres situated in village Chhita Pandariya. The case of the defendants was that the land was partitioned by late Shyam Sunder Singh during his life time and in pursuance of the partition they were in possession over their respective shares. In land ceiling cases the plaintiffs Budhdeswar Singh, Shashi Bhusan and late Shyam Sundar Singh filed separate returns mentioning that each of them were allotted 30 acres of land in village Chhita Pandariya and since then they were in separate possession over their shares of land. However, they have deliberately suppressed this fact in their plaint. They had also sold lands of their shares to various persons in the year 1978.
(3.) THE trial Court partly decreed the suit holding that the partition of the joint family had taken place during the lifetime of late Shyam Sunder Singh and the property purchased by Dr. Bhanu Pratap Singh was not purchased through the proceeds of Joint family property. However, will dated-21.11.1989 was declared illegal and void with respect to 30 acres of land on the ground that wife of Dr. Bhanu Pratap Singh was alive at the time of execution of will and as there was no consent of his wife, the will was illegal and void in the absence of her consent. The plaintiffs as also defendant No.1 preferred first appeal against judgment and decree of the trial Court and the learned first appellate Court vide impugned judgment and decree allowed the appeal of defendant No.1 and dismissed the suit. Will in favour of defendant No.1 was declared to be legal and valid. The appeal preferred by the plaintiff has been dismissed.;

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