Kamla Bai Vs Sabana Bai and Others

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2025:CGHC:1309

NAFR

AVINASH SHARMA

HIGH COURT OF CHHATTISGARH AT BILASPUR

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Digitally signed by AVINASH SHARMA Date: 2025.01.10 10:22:51 +0530

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SA No. 124 of 2009

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Kamla Bai Wd/o Late Basawan Sahu, aged about 54 years, R/o Village Bergaon, PS Sahaspur Lohara, Tahsil Kawardha, Distt. Kabirdham C.G. ... Appellant/Defendant No.1.

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versus

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1. Sabana Bai Wd/o of Jawahar Sahu, Aged about 47 years, R/o Village Agari at Present Village Bergaon Police Station Sahaspur Lohara, Tahsil Kawardha Distt.- Kabirdham (C.G.). Plaintiff.

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2. Heera Ram S/o Prabhu Ram Aged about 33 years, R/o Bergao, P.S. Sahagpur Lohara, Tahsil- Kawardha, Distt.- Kabirdham (C.G.).

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3. Naphiz Mohd. S/o Dheloo Mohd. Aged 44 years, R/o Village Singhangarh, Police Station Sahaspur Lohara Tah.-Kawardha, DisttKabirdham (C.G.).

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4. Pawan Kumar S/o Ram Sundar Sahu, Aged about 24 years.

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5. Heeralal S/o Ram Sundar Sahu Aged 04 years, Through Guardian father Ram Sunder S/o Shambhoo Sahu Respondent no. 4&5 both R/o VillageBergao Police Station- Sahagpur Lohara, Tahsil -Kawardha; Distt.Kabirdham (C.G.).

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6. State of Chhattisgarh Through: Collector Kawardha, Distt. Kabirdham (C.G.). Defendant No.3

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7. Bhole Kumari D/o late Basawan Sahu, Aged 30 years, R/o VillageBergao, Police Station- Sahagpur Lohara, Tahsil- Kawardham; Distt. Kabirdham (C.G.) Defendant No.2

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... Respondent(s)

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For Appellant	:	Shri Sudhir Verma, Advocate.
For Respondent No.1	:	Shri Avishek Bharti appears on behalf of Ms. Renu
		Kochar, Advocate.
For State		Shri Topilal Bareth, PL.

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Hon'ble Shri Justice Deepak Kumar Tiwari Judgment on Board

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08.01.2025

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1. This Second Appeal has been preferred against the judgment and decree dated 02.01.2009 passed by District Judge, Kabirdham(Kawardha) Chattisgarh in Civil Appeal No.20A/2007 whereby, while dismissing the appeal, the judgment and decree dated 28.04.2007 passed by First Civil Judge Class-1, Kawardha in Civil Suit No.26A/2006 whereby, suit was decreed in favour of Respondent No.1/plaintiff by holding that she/respondent No.1 along with Respondent No.7-Bhole Kumari, daughter of present appellant is equally entitled for their share in the suit property and the order passed by SDO, Kawardha on 15.12.2003 is not binding on the plaintiff as she has successfully proved that she is legally wedded wife of late Basawan Sahu, was afÏrmed.

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2. Necessary facts of the case are that Respondent No.1 has filed a civil suit for declaration, partition and separate possession making averment inter alia, that in the name of her husband late Basawan Sahu, 12.66 acre

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agricultural land in the village Bargaon and a house as per the Schedule-B exists. It has been further averred that appellant is the earlier wife of late Basawan Sahu and out of their relations, Respondent No.7-Bhole Kumari was born. In their society, there is custom of चूड़ी शादी/Chudi Marriage’. After some time, as per the छोड़ -छु्ሾी /social chor chutti custom with the earlier wife Kamla Bai, Basawan Sahu solemnized chudi marriage with the plaintiff Sawana Bai. After the death of Basawan Sahu, dispute arose for partition. Taking the benefit of illiteracy of plaintiff, present appellant and her daughter took two shares in the suit property and to that effect an order has been passed by concerned Tehsildar, against which, an appeal has been preferred by the plaintiff which was dismissed. It has been further averred that earlier there was separation of marriage of Kamla Bai with late Basawan Sahu, therefore Kamla Bai is not entitled for half of the share in the subject property and the plaintiff is entitled for half of the share in the suit property.

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3. Defendant Nos.1 & 2 in their written statement denied the plaint averments. It has been stated that plaintiff was only kept of late Basawan Sahu, as no divorce with Kamla Bai was sought. It is further averred that Basawan Sahu did not like Defendant No.1/appellant and after harassing her, Basawan Sahu ousted her from the matrimonial home and thereafter he solemnized 10-12 ‘Chudi Marriage’. Due to misbehaviour, no one continued relationship with late Basawan Sahu and thereafter he had kept the plaintiff with him. After social counseling, Basawan Sahu agreed to keep the appellant and her daughter with him. Plaintiff was not the legally wedded wife of Baswan and as such, she has no right in the property of late Basawan. The Tehsildar has rightly passed the order. It has been

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further averred that plaintiff only with the consent of appellant is residing in their home but she has no right in that property.

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4. Learned trial Court based on the pleadings of the parties framed as many as 7 issues. Plaintiff(PW-1) has examined herself alongwith Bhagwati(PW-2) and Bahalram Kotwar(PW-3) and has exhibited two documents viz Ex.P/1A and Ex.P/2A about the birth report of Chuman Kumari and Lutan Kumari on 09.08.1993 and 10.06.1996 respectively as both were born out of the relations of appellant Kamla Bai with one Indel Ram, resident of Thengabhat.

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5. Appellant(DW-1) has examined herself along with Gunuram(DW-2) and Bihariram (DW-3) and has exhibited four documents viz ownership certificate issued in the name of Bhole Kumari by the Additional Tehsildar, Birendranagar( Ex.D/1) and sale deed executed by plaintiff Sawanabai in favour of Nafees Mohd(Ex.D/2), Pawan Kumar & Hiralal(Ex.D/3) and Hiraram( Ex.D/4 ).

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6. Learned trial Court after evaluating evidence has recorded the finding that the plaintiff is legally wedded wife of late Basawan Sahu and there was separation of marriage of appellant Kamla Bai with her husband Basawan, therefore she has no right in the property of late Basawan Sahu. Hence, order passed by the SDO, Kawardha on 15.12.2003 and the order passed by Naib Tehsildar on 11.03.2003 are not binding on the plaintiff and the plaintiff is entitled for 1/2 share of the subject property. Accordingly in her favour, the suit was decreed, against which, appellant and her daughter Bhole Kumari preferred First Appeal, however the same was dismissed. Hence this Second appeal has been preferred.

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7. On 30.03.2009, this Second Appeal was admitted for hearing on the

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following substantial questions of law:-

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“➤ Whether Court below has erred in holding that respondent No. 1 Sabana Bai is entitled for ½ share in the suit property?

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➤ Whether Court below has erred in holding that respondent NO. 1 Sabana Bai is a legally wedded wife of deceased Basawan?”

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8. Learned counsel for the appellant would submit that findings recorded by both the courts below are perverse to the evidence. He would submit that there is no evidence to the effect that Kamlabai is legally separated with her husband Basawan Sahu, hence a wrong finding has been recorded. He would further submit that unless the divorce has been proved, existence of second marriage with plaintiff is not acceptable in law. Learned counsel prays to allow the appeal and the decree passed by court below be setaside.

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9. On the other hand, learned counsel for Respondent No.1 would support the impugned judgment and decree.

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10. There is concurrent finding of the fact recorded by the trial Court as well as the first appellate Court that the plaintiff/Respondent No.1 after ‘social chorchutti’, as per the rituals solemnized Chudi marriage with late Basawan and accordingly Respondent No.1/plaintiff successfully established the fact that after dissolution of marriage of the appellant with her husband late Basawan Sahu, their relationship came into existence and the said fact has been duly proved by Sawana Bai(PW-1) and supported by her witnesses Bhagwati(PW-2) and Bahalram Kotram (PW-3).

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11. Bahalram Kotwar(PW-3) further disclosed the material fact that after such

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separation Kamla Bai came in relation with one Indelram resident of Thengabath and out of their relations, two children were born and their birth certificate has also been proved vide Ex.P/1A and Ex.P/2A by the plaintiffs. However, the appellant failed to explain that during the existence of relationship with Basawan Sahu, how come these two children were born with one Indelram. Witnesses of the appellant Gunuram (DW-2) and Bihariram(DW-3) categorically admitted the fact in their evidence that in their Sahu community, custom of Chudi Marriage exists and the same was only solemnized after dissolution of earlier marriage as per the social rituals. When late Basawan Sahu performed Chudi Marriage with the plaintiff, there was no protest or any dispute about such Chudi Marriage. Hence on the basis of evidence available on record, both the courts below came to the conclusion that the plaintiff has established his/her relation as a legally wedded wife with late Basawan and the said finding has been recorded by the courts below according to evidence available on record which is neither perverse nor contrary to law.

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12. It is well established that when there is a concurrent finding of fact, unless it is found to be perverse, the Court should not ordinarily interfere with the said finding.

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13. In the matter of State of Rajasthan and others v. Shiv Dayal and another, reported in {(2019) 8 SCC 637} , reiterating the settled proposition, it has been held that when any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded de hors the pleadings or based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting

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judicially could reasonably have reached.

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14. For the foregoing discussion and in view of the above settled legal proposition, I find absolutely no merit in this appeal.

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15. Both substantial questions of law are answered in negative.

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16. Consequently, this Second Appeal fails and is hereby dismissed afÏrming

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