JUDGMENT :

1. This second appeal has been filed by the appellants/plaintiffs under Section 100 of the C.P.C. against judgment and decree dated 14.08.2012 passed by Additional District Judge, Sarangarh, District- Raigarh (C.G.) in Civil Appeal No. 04A/2011 (Vijay Lal & others Vs. Nanki Dai & others) whereby the judgment and decree dated 30.03.2011 passed by Civil Judge Class-I, Sarangarh, District- Raigarh (C.G.) in Civil Suit No. 52A/2011 for declaration of title and possession of the suit property mentioned in Schedule- C & D of the plaint, has been set aside.

2. For the sake of convenience, the parties shall be referred to in terms of their status in Civil Suit No. 52A/2011 which was filed for declaration of title and possession of the suit property.

3. The instant Second Appeal is admitted for hearing by this Court vide its order dated 08.11.2012 on the following substantial question of law:-

“Whether the lower appellate Court was justified in allowing the appeal and dismissing the suit filed by the appellant instead of remanding the same in absence of any valid written statement/ pleadings on behalf of the then defendant Harihar ?”

4. The brief facts, as reflected from the plaint averment, are that the plaintiff has filed Civil Suit No. 16A/2007 before Civil Judge Class-II, Sarangarh, District- Raigarh (C.G.) for declaration of title and possession mainly contending that the property mentioned in Schedule-A of the plaint situated at Village- Kandola, Patwari Halka No. 35, Revenue Circle- Sariya, Tahsil- Sarangarh, District- Raigarh (C.G.) is recorded in the name of ancestor of plaintiffs and defendants namely Anandram. The property mentioned in Schedule-B of the plaint situated at Village- Sukhapali, Patwari Halka No. 30, Revenue Circle- Sariya, Tahsil- Sarangarh, District- Raigarh (C.G.) is agricultural land, which is also recorded in the name of ancestor of the plaintiffs and defendants. The property situated at Village- Bhikhampura, Patwari Halka No. 39, Revenue Circle- Sariya, Tahsil- Sarangarh, District- Raigarh (C.G.) total 14 plots, area admeasuring 4.634 Hectares is also ancestral property recorded in the name of their ancestor, which has already been partitioned between the parties on the basis of oral partition and recorded in the revenue record.

5. It has been further contended that after death of Anandram, the property mentioned in Schedule-A & B of the plaint has already been partitioned between husband of plaintiff No. 1- Late Hemraj and Harihar prior to 35-40 years in the year 1970. Accordingly, the property mentioned in Schedule- C & D of the plaint are separate share of Late Harihar and he was in possession of that property and doing agricultural work. Plaintiff No. 1- Nanki Dai's husband-Late Hemraj and Harihar have already orally partitioned the house and movable property situated at Village- Kandola and they are in possession of their separate share of property, as such, there is no dispute with regard to this property. It has been further contended that plaintiff No. 1- Nanki Dai is second wife of Hemraj. His first wife-Sukhelibai expired prior to 50-52 years having two daughters, thereafter, plaintiff No. 1 got marriage as per family customs and from their wedlock, four daughters were born. It has been further contended that on 27.11.2002, since the plaintiffs have no male child, defendant No. 1 with intent to take possession of the agricultural land, has removed crop stand in the land allotted to plaintiff No. 1 through oral partition. Against that, the plaintiff has lodged FIR at Police Station- Sariya and also filed an application before the Sub Divisional Officer, Sarangarh for seizing the crop, in which, possession has been directed in favour of plaintiff No. 1 whereas defendant No. 1 is still continuing the dispute. Considering this aspect of the dispute created by defendant No. 1, plaintiff has filed an application before Naib Tahsildar, Sariya for recording their names in the property situated at Vi