Order on Board

04/01/2021

1.Heard on admission and formulation of substantial question of law in this second appeal preferred by the appellants/plaintiffs under Section 100 of CPC. By the impugned judgment and decree, the first appellate Court has affirmed the judgment and decree passed by the trial Court partly dismissing the suit of the plaintiffs/appellants herein.

2.Mr. H.B. Agrawal, learned senior counsel appearing on behalf of the appellants/plaintiffs, would submit that both the Courts below are absolutely unjustified in dismissing the suit qua the recovery of possession sought by the plaintiffs by recording a finding which is perverse and contrary to the record, as such, the appeal deserves to be admitted for hearing by formulating substantial question of law.

3.The suit house was originally held by Narayan.

He firstly married with Umabai. The original defendant namely Toman is the son of Narayan born out of his wedlock with Umabai whereas plaintiff No. 1 Kailashbai is the second wife of Narayan with whom Narayan married after the death of Umabai and plaintiffs No. 2 to 6 are the sons and daughter of Narayan born out of his wedlock with Kailashbai.

4.Plaintiff No. 1 Kailashbai and the other plaintiffs brought a suit for declaration of title, possession and for declaring the Will dated 04/02/1981 allegedly executed by Narayan in favour of the original defendant Toman Singh as null and void and also for declaring the mutation of the said suit house in favour of the defendant, which was opposed by the defendant by filing written statement.

5.Learned trial Court, after appreciating the oral and documentary evidence on record, partly decreed the suit declaring the Will dated 04/02/1981 and mutation order as illegal, but declined to grant decree for possession in favour of the plaintiffs, which was appealed by both the parties by way of filing first appeals. By the impugned judgment and decree, learned first appellate Court dismissed the first appeals preferred by both the parties. Now, only the plaintiffs have preferred this second appeal questioning the part of the judgment and decree passed by the trial Court dismissing the suit for recovery of possession.

6.Both the Courts below have concurrently recorded a finding that plaintiffs have failed to establish that defendant has forcefully taken the possession of the suit house in November, 1987. The aforesaid finding is a finding of fact based on material available on record. I do not find any substantial question of law involved in this appeal.

7.The second appeal, being devoid of merits, deserves to be and is accordingly dismissed in limine without notice to the other side. No cost(s).