Shaniyaro Bai vs Somari Bai And Ors

Heard on admission and formulation of substantial question of law in this second appeal preferred by the appellant/plaintiff under Section 100 of the CPC against the impugned judgment and decree dated 06/12/2004 passed by the first appellate Court affirming the judgment and decree of the trial Court dated 30/06/2004.

Mr. Rajeev Shrivastava, learned counsel for the appellant/plaintiff would submit that the concurrent finding recorded by both the Courts below that plaintiff has failed to prove that she is the 'Gharjeeha' daughter of Khelu (her father's brother) and therefore, she would not inherit the suit property owned by Khelu is a finding of fact which is absolutely perverse to the record, as such, the second appeal deserves to be admitted by formulating substantial question of law.

Plaintiff - Shaniyaro Bai filed a suit for declaration of title and for declaring the sale deed dated 05/08/1985 executed by Khelu in favour of defendants No. 2 and 3 as null and void stating inter alia that she, being the 'Gharjeeha' daughter of Khelu, would inherit the suit property owned by Khelu and Khelu had no right to sell the suit property to defendants No.

2 and 3 which the trial Court did not accept and held that plaintiff has failed to prove that she is the 'Gharjeeha' daughter of Khelu, therefore, she would not inherit the suit property and Khelu had thus, rightly alienated the suit property in favour of defendants No. 2 and 3 which has been affirmed by the first appellate Court.

Though Mr. Shrivastava, learned counsel for the appellant/plaintiff vehemently contended that the findings recorded by both the Courts below that plaintiff was not the 'Gharjeeha' daughter of Khelu is perverse, but the two Courts below have categorically held that plaintiff has failed to prove the custom of 'Gharjeeha' daughter and further failed to prove that she was actually the 'Gharjeeha' daughter of Khelu and therefore, would inherit the suit property.

The concurrent finding recorded by both the Courts below that plaintiff has failed to prove that she was the 'Gharjeeha' daughter of Khelu and therefore, she would not succeed the suit property is a finding of fact based on evidence available on record which is neither perverse nor contrary to record and does not give rise to any substantial question of law for determination.

The second appeal deserves to be and is accordingly dismissed in limine without notice to the other side.