JUDGEMENT

This appeal under Section 100 of the Code of Civil Procedure has been preferred by defendant no.2/appellant being aggrieved by the judgment and decree dated 06.07.1999 passed in Civil Appeal No.34-A/1998 by the Second Additional District Judge, Sagar, Camp Khurai, arising out of the judgment and decree dated 12.02.1997 passed in Civil Suit No.110-A/1991 by the Second Civil Judge Class II, Khurai.

2. As per the plaintiffs, they are sons of Dhunna through his wife Rajiyabai, defendant no.3. Dhunna was earlier married to Nimiya, who has expired and from their cohabitation, defendant no.2 was born. Upon death of first wife of Dhunna, he had married defendant no.3, Rajiyabai as per Kari system of marriage, from whom plaintiffs were born. Thus, plaintiffs and defendants have equal share in the lands of Dhunna. A partition was effected between defendant no.1 and his other brothers in which 3.79 acre of land was allotted to defendant no.1, over which a house has been constructed. Defendant no.2 had instituted an action against defendant no.1 for half share in the suit property in which a compromise was arrived at between them and 1.50 acre land and 1/3rd share in the house was given to defendant no.1. In July 1991, plaintiffs acquired knowledge of the compromise and asked defendant no.1 for their share, which was denied by him. The compromise decree is not binding upon the plaintiffs since they were not impleaded as parties therein. On such contentions, the plaintiffs instituted an action for declaration of their 2/3rd share in the suit property and for symbolic possession of the same.

3. The defendants 1 and 3 admitted the plaintiffs' claim. Defendant no.2, however, contested the plaintiffs' claim by filing his written statement in which it was submitted that defendant no.3 is not legally wedded wife of defendant no.1 as per Kari system of marriage. She is instead illegitimate wife of defendant no.1 and plaintiffs are his illegitimate children. The land, which has been shown to be allotted to defendant no.1, had in fact been allotted to defendant no.1 and his wife Nimiya. In the 1/3rd share of Nimiya, defendant no.2 has acquired a share. In civil suit between him and defendant no.1, a compromise has already been entered into, in view of which, defendant no.2 has been allotted 1.50 acre of land and 1/3rd share in the suit house. The plaintiffs cannot challenge the same, hence they are not entitled for any relief as claimed by them.

4. The trial court only partly decreed the plaintiffs' claim holding that they are entitled to their share in the suit property after deduction of the share of defendant no.2 as per the judgment and decree passed in the earlier suit. However in appeal having been preferred by the plaintiffs, the judgment and decree passed by the trial court has been set aside and it has been held that the plaintiffs have 2/5th share in the lands of defendant no.1 and as well as in the suit house and are entitled for symbolic possession of the same.

5. Being aggrieved by the judgment and decree as aforesaid, this appeal has been preferred by defendant no.2, which was admitted for final hearing by order dated 04.07.2000 on the following substantial questions of law:-

"1. Whether the lower appellate court having held that it was not proved that Smt. Rajiya was married to Dhunna in accordance with Kari form of marriage, could it draw a presumption u/s 114 of the Evidence Act?

2. Whether the court below could have held that in case the plaintiff failed to establish the marriage in accordance with Kari form of marriage, then presumption of marriage by long cohabitation would weaken his case?

3. Whether the compromise entered into by respondent no.3 Dhunna in the capacity of karta of the family was binding on the coparceners, including the plaintiff, unless it is established that a fraud was played upon him by other coparceners?"

6. Learned counsel for the appellant has submitted that from the ev