Sri Bishwanath Prasad Sharma v. Radhika Raman Pd. Verma & ORS

9. Sri Satish Singh son of Prahalad Singh

10. Sushil Singh

11. Naresh Singh sons of Mithla Singh

12. Sri Awadh Singh @ Rishalehadeo Sharma son of Sri Ishwari Singh deceased, all residents of village Lohanda, P.S. Sikandara, District Munger. …….Defendants 2nd party-Respondents 2nd set-Respondents 2nd set. 13. Mala Devi wife of Radha Krishana Pd. Verma

14. Rajiv Ranjan Verma

15. Vidya Ranjan Verma

16. Ashutosh Ranjan Verma 2

17. Bhuvan Ranjan Verma

18. Muni Kumari

19. Mobhi Kumari Sons and daughters of late Radha Krishna Prasad Verma, residents of village Lohanda, P.S. Sikandara, District Munger, at present residing in the Mohalla of Kankerbagh Colony, P.S./ Kankerbagh, Patna.20.

20. Sri Vidya Bhushan Pd. Verma

21. Sri Ravi Bhushan Pd. Verma

22. Sri Sashi Bhushan Pd. Verma sons of Mathura Pd. Verma

23. Smt. Basanti Devi

24. Smt. Rani Verma Daughters of Mathura Pd. Verma, all residents of village Lohanda, P.S. Sikandara, District Munger. ……Defendants 3rd party-Respondents 3rd set-Respondent 3rd set With S.A. No.468 of 1990 Sri Bishwanath Prasad Sharma, son of Sri Dalip Singh, resident of village Lohanda, P.S. Sikandara, District Munger. ..Plaintiff-Respondent 1st set-Appellant. Versus

1. Sita Sao son of Sukar @ Puhakar Sao deceased, resident of village Lohanda, P.S. Simandra, District Munger. ………Defendant 1st party-Appellant-Respondent 1st set.

2. Bhairo Singh

3. Sri Ram Balak Singh @ Balak Singh sons of Mahabir Singh, deceased. 1. Rama Devi D/o Mahabir Singh , wife of Badri Singh, resident of village Alna, P.S. Pilich, District Munger.

5. Jadu Nandan Singh

6. Jai Nandan Singh of village Arama, P.S. Parwalpur, District Nalanda. 7(i) Manorma Devi W/o Naresh Singh, village Badaulti, P.S. Barbigha, Nalanda. 3 (ii)Gayetri Devi W/o Ganesh Singh, resident of village Sarmera (Nayagarh) Sarmera, P.S. Sarmera District Nalanda. (iii)Ravindra Singh of village Arma, P.O. Parwalpur, District Nalanda.

8. Jagat Narayan Singh

9. Satish Singh

10. Sushil Singh

11. Naresh Singh sons of Mithla Singh, resident of villager Arma, P.S. Parwalpur, District, Patna.

12. Sri Awadh Singh @ Bishwadeo Sharma son of Sri Ishwari Singh deceased, all residents of village Lohanda, P.S. Sikandara, District Munger. …….Defendants 2nd party-Respondents 2nd set-Respondents 2nd set. With S.A. No. 466 of 1990 Sri Bishwanath Prasad Sharma, son of Sri Dalip Singh, resident of village Lohanda, P.S. Sikandara, District Munger. ..Plaintiff-Respondent 1st set-Appellant. Versus

2. Sri Mahendra Gope 3. Sri Hari Gope 4. Sri Jagdish Gope, All sons of Foujdari Gope, resident of village Sikandara, P.S. Sikandara, District Munger. ……..Defendants 1st party-Appellants-Respondents 1st set.

4. Bhairo Singh

5. Sri Ram Balak Singh @ Balak Singh sons of Mahabir Singh, deceased. 6. Rama Devi D/o Mahabir Singh , wife of Badri Singh, resident of village Alna, P.S. Pilich, District Munger.

7. Yadu Nandan Singh

8. Jai Nandan Singh, both sons of late Urmila Devi, resident of village Arama, P.S. Parwalpur, District Nalanda. 9(i) Manorma Devi W/o Naresh Singh, village Badaulti, P.S. Barbigha, 4 Nalanda. (ii)Gayetri Devi W/o Ganesh Singh, resident of village Sarmera (Nayagarh) Sarmera, P.S. Sarmera District Nalanda. (iii)Ravindra Singh of village Arma, P.O. Parwalpur, District Nalanda.

10. Jagat Narayan Singh

11. Satish Singh

12. Sushil Singh

13. Naresh Singh sons of Mithla Singh, resident of villager Arma, P.S. Parwalpur, District, Patna.

14. Sri Awadh Singh @ Rishawdeo Sharma son of Sri Ishwari Singh deceased, all residents of village Lohanda, P.S. Sikandara, District Munger. ……….Defendants 2nd party-Respondent 2nd set-Respondents 2nd set. For the appellants in all the appeals. : M/s S.K. Mazumdar, Sr. Advocate, Mallika Mazumdar and Prem Kumar, Advocates. For the respondents in all the appeals. : None. ----------- 18/

29.04.2009 Heard learned counsel for the appellants.

2. All the aforementioned three second appeals are being taken up together for hearing under Order XLI Rule 11 of the Code of Civil Procedure, as the plaintiff-appellant is same in all the said cases and similar points are involved therein and they are against the same common judgment of the learned lower appellate court.

3. The plaintiff-appellant had filed four title suits bearing T.S. No.03 of 1966, T.S. No.04 of 1967, T.S. No.05 of 1967 and T.S. No.61 of 1968 for the same relief of declaration of title and recovery 5 of possession with respect to different portions of ancestral land, which were transferred by his various co-sharers, who were defendants 2nd party in all the suits, in favour of various persons, who were separately impleaded as defendants 1st party in their respective title suits mentioned above.

4. Title Suit No.04 of 1967 was decreed by the learned Munsif, Jamui vide his judgment and decree dated 18.06.1977, whereas T. S. No.03 of 1966, T. S. No.05 of 1967 and T. S. No.61 1968 were decreed by the same court vide common judgment and decrees dated 11.08.1979. Defendants 1st party of each of the abovementioned title suits filed their respective title appeals, namely T.A. No.32 of 1977, T.A No.10 of 1979, T.A. No.11 of 1979 and T.A. No. 12 of 1979 and all the aforesaid title appeals were allowed by the learned Subordinate Judge-1, Jamuai by common judgment and decrees dated 31.08.1990.

5. Against the aforesaid common judgment and decrees of the learned court of appeal below the plaintiff-appellant filed S.A.No.467 of 1990, S.A. No.459 of 1990, S.A No.468 of 1990 and S.A. No.466 of 1990, respectively. Out of the said four second appeals S.A. No.459 of 1990 was taken up for hearing under Order XLI Rule 11 of the Code of Civil Procedure on 19.12.1991 and was dismissed on merits and the said order was affirmed by the Hon’ble Apex Court vide its order dated 07.08.2003 passed in Civil Appeal No.2607 of 1996, which was filed by the plaintiff-appellant. Now the remaining three second appeals mentioned above have been placed 6 for hearing under Order XLI Rule 11of the Code of Civil Procedure.

6. From the arguments as well as from the materials, including the judgment and decrees of the learned court of appeal below, it is quite apparent that the properties involved in all the suits were joint family properties of one Jailal Singh who had left behind three sons, namely, Dilip Singh, Mahabir Singh and Ishwari Singh, out of whom the plaintiff-appellant is the son of Dilip Singh whereas defendants 2nd party are the descendants of Mahabir Singh and Ishwari Singh. In the said circumstances, defendants 2nd party in all the suits were common and they had separately transferred portions of the suit lands to different persons who were made defendants 1st party in different suits with respect to their respective acquired properties. According to the plaintiffs, there was no partition in the joint family but in spite of that defendants 2nd party had transferred the suit properties to different persons and hence there was requirement for filing the suits. On the other hand, the defendants had claimed that there was already partition between the three branches of the family of Jailal Singh in the year 1932 in which specific portions were allotted to different co-shares. In the said circumstances the main question in issue was as to whether there was a partition of the joint family property among the three branches of the family in the year 1932.

7. The learned court of appeal below after considering the pleadings as well as the evidence of the parties specifically came to the conclusion that Dilip Singh the father of the plaintiff had 7 separated from his brothers Mahabir Singh and Ishwari Singh after partition in the year 1932 in which the suit properties were allotted to the branch of Mahabir Singh and Ishwari Singh and hence the plaintiff or his father Dilip Singh had no title to the suit land involved in the aforesaid suits and thus the plaintiff was also not entitled to the reliefs claimed in the suit. The said findings of the learned court of appeal below are findings of fact which appear to be fully legal and justified and based upon the evidence of the parties, both oral and documentary.

8. It has also come to light that one of the four second appeals in which exactly similar points were involved, namely S.A. No.459 of 1990 was heard by this court on 19.12.1991 under Order XLI Rule 11 of the Code of Civil Procedure, whereafter this court dismissed the same. Against the said dismissal the plaintiff-appellant filed Special Leave to Appeal in Hon’ble Apex Court bearing Special Leave to Appeal (Civil) No.8408 of 1992 which was subsequently converted to Civil Appeal No.2607 of 1996 and the Hon’ble Apex Court after considering the entire matter in detail dismissed the said civil appeal by its order dated 07.08.2003 after arriving at the following conclusions:- “The appellate court rightly appreciated the entire evidence including the mortgaged deed executed by the appellant wherein it has been specifically recited that there was private partition among three brothers and the land of mortgaged deed had fallen in the share of father of the plaintiff-appellant. In view of the said admission and 8 other evidence which is produced on record, it cannot be said that there was any substantial question of law which called for interference by the High Court. In the result the appeal is dismissed.” It was also held by the Hon’ble Apex Court that order dated

19.12.1991 passed in S.A. No.459 of 1990 by the High Court of Patna dismissing the second appeal summarily cannot be said to be in any way illegal or erroneous.

9. In the aforesaid facts and circumstances, this court does not find any illegality in the impugned judgment and decrees of the learned court of appeal below, nor does it find any substantial question of law involved in any of the above mentioned second appeals, which are accordingly dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. harish/ ( S.N.Hussain, J.)