JUDGMENT :

1. This is defendant’s No.1 Second Appeal filed under Section 100 of CPC against the judgment and decree dated 02.07.2004, passed by 2nd Additional District Judge (FTC), Mungeli, District Bilaspur, in Civil Appeal No.3-A/2003 reversing the judgment and decree dated 31.10.2003 passed by Civil Judge, Class-I, Mungeli in Civil Suit No. 103-A/1997, whereby, the plaintiff's suit has been decreed.

2. For the sake of convenience, parties would be referred to as per their description shown in the plaint filed before the trial Court.

3. The Instant appeal has been admitted by this Court on 27.08.2004 on the following substantial questions of law :-

“1. Whether the 1st appellate Court was justified in reversing the judgment and decree of the trial Court holding that the marriage of the appellant herein with late Mohar Singh was not valid marriage in view of the provisions of Section 5(1) of the Hindu Marriage Act ?

2. Whether the 1st appellate Court was justified in reversing the judgment and decree of the trial Court on the ground that in view of Section 24 of the Hindu Succession Act, 1956 the appellant herein was not entitled for inheritance ?”

4. The brief facts of the case, as reflected from the record are that, respondent No. 1/original plaintiff has instituted a Civil Suit before Civil Judge, Class-1, Mungeli for declaration of title and permanent injunction stating inter alia that deceased Sadhu Singh was residing at Patwari Halka No. 34 Village- Khapri. He had two sons namely- Mohar Singh and Puhup Singh. Puhup Singh and Mohar Singh, both have expired. Mohar Singh married with Hirdoi Bai and out of their wedlock one daughter namely- Son Bai was born, who is plaintiff in the instant suit. A partition took place between Mohar Singh and Puhup Singh. In the life-time of Hirodi Bai, defendant No. 1, namely, Looli Bai was residing with Mohar Singh as his concubine and after death of Mohar Singh, defendant No. 1, Looli Bai has performed chudi Marriage with Puhup Singh, who is real brother of Mohar Singh and after the death of Puhup Singh, she was residing as widow of Puhup Singh in his house and accordingly she was in possession of the property, which belonged to Puhup Singh and earned her livelihood. It has also been contended that in the year 1963, Mohar Singh died. It has been further submitted that Mohar Singh had given some part of the land bearing Khasra No. 62, area 1.96 acres of agricultural land situated at Village Kapri as well as land measuring 0.66 decimal have been given to original defendant Luli Bai in lieu of living with him as concubine. Defendant No. 1 – Luli Bai has made false and fabricated sale deed in favour of Mukut Singh with regard to aforesaid lands, which is pending before the Competent Court.

5. It has been further contended that Defendant No. 1 – Luli Bai has filed an application for partition before Tahshildar Pathariya on the ground that she is widow of Mohar Singh whereas actually she is widow of Puhup Singh and even without knowledge of plaintiff, name of defendant No. 1 has been recorded in the revenue records. The partition proceeding is pending before the Nayab Tahshildar, Pathariya. It has been contended that neither the defendant No. 1 has any right or title over the suit property nor she was ever in possession of the suit property. The plaintiff and her husband & children are the sole owner of the suit land and they are still in possession of the suit land. Defendant No. 1 being the legal heirs of the Puhup Singh, she obtained the property in partition and she in peaceful possession of the said property and there is no dispute between legal heirs of Puhup Singh and the plaintiff. The defendant No. 1 after filing the application before the Tahshildar Pathariya has started creating dispute which has necessitated the plaintiff to file the present suit for declaration of title and permanent injunction mainly praying that the plaintiff be declared as sole owner and occupier of the suit property an