The main legal point established in the judgment is the application of the Hindu Succession Act to determine the devolution of property in a dispute, specifically highlighting the provisions of Sections 8, 9, and 11.

JUDGMENT :- This second appeal has been preferred by the plaintiff/appellant against the respondents impugning the judgment and decree dated 2-12-1997 rendered by Additional District Judge, Sabalgarh, distt. Morena in Civil Appeal No. 16-A/89, affirming the judgment and decree passed by the trial Court in original Civil Suit No. 28-A/84. Vide impugned judgment and decree the suit filed by the appellant for declaration of title and injunction has been dismissed.

2. During the course of arguments, both the parties have admitted the following factual status of the case.

1. That the whole of the land Survey numbers 37,236/3, 237, 238, 239, 240 and 241, total survey numbers 7, total land 14 bigha and 9 biswa situated in village Parvati Badoda, Tehsil Vijaypur distt. Morena (presently distt. Sheopurkalan) which has been mentioned in para No. 1 of the plaint was owned by one of the three brothers, Lalji, Budhi and Moti. Moti died without any heirs. Budhi is defendant No. 2 and plaintiff Patiram is son of defendant No. 2 Budhi. Lalji also died and defendant No. 1 Mula is his son.

2. That, Mula defendant No. 1 has sold a part of the above land to his daughters respondents Nos. 3 and 4 Basanti and Bhagvanti. Hence they are also arrayed as respondent/defendants. Respondent No. 5/the State being formal party has been arrayed as respondent No. 5. The main dispute is between respondent/defendant No. 1 Mula at one side and appellant/plaintiff defendant No. 2 Budhi at another side. It is the contention of the appellant that after death of Moti, the whole of his share in land will devolve to the respondent No. 2 Budhi, while as per the respondent No. 1 Mula, only half share will go to him.

3. It is also not disputed that both the Courts below have come to the conclusion that disputed land has not been partitioned, that deceased Moti did not give his share to the appellant before 16 years of his death, that the appellant is not in exclusive possession in the nature of hostile possession on a part of the disputed land, that respondent No. 1 Mula and respondent No. 2 Budhi are having shares in the disputed property and that the sale deed dated 28-5-1984 executed in favour respondents No. 3 and 4 by respondent No. 1 has no adverse affect to the interest of the appellant.

3. Considering this dispute between the parties, the following point of law has been framed vide order dated 5-4-2006 :-

"Whether the entire share left by deceased Moti could go to Mula on his death?"

4. It being second appeal, this Court is not required to look into the concurrent finding of the Court below nor it has been pressed.

5. On perusal of the pleadings, as well as admitted by both the parties during the course of arguments, the disputed land has not been mentioned by the parties as ancestral property. It is only mentioned that in the disputed land, all the three brothers are having equal shares. It is also not disputed that one brother Lalji died seven years before filing of the suit and, thereafter, another brother Moti died before two years of the suit. Still the disputed land is undivided as per the concurrent findings of both the Courts below. It is also agreed by both the parties, during the course of arguments that parties are governed by Hindu Succession Act (hereinafter referred to as the Act). In view of the fact that the disputed land has not been mentioned as coparcenary property, Section 6 of the Act will not apply. The relevant provisions of Sections 8, 9 and 11 of the Act and heirs mentioned in Class I and Class II of the Schedule are as under :-

8. General rules of succession in the case of males :- The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter -

(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule;

(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule;

(c) thirdly if there is no heir of any of the two classe

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