1 IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.53 of 2007 1. Jagdish Singh s/o late Autar Singh 2. Umesh Singh 3. Mahesh Singh 4. Dhanesh Singh All sons of Jagdish Singh resident of Village Baheri Khap P.O. War P.S. Madanpur Dist. Aurangabad Defendants- Appellants- Appellants Versus 1. Phoolmati Devi w/o late Brahamdeo Singh resident of Village Baheri Khap P.O. War P.S. Madanpur Dist. Aurangabad 2. Ram Swaroop Singh 3. Kamlesh Singh both sons of late Brahamdeo Singh Both resident of Village Baheri Khap P.O. War P.S. Madanpur Dist. Aurangabad Plaintiffs- Respondents-Respondents 4. Raja Devi d/o late Bhaunath Singh w/o Belbhadra Singh resident of Village Pararia P.S.Ketaki Dist. Aurangabad 5. Basmati Devi d/o late Bhaunath Singh w/o Sri Ugrah Singh resident of Village Sandhail P.O. Ghatrain P.S. Madanpur Dist. Aurangabad 6. Manoj Singh 7. Sukhari Singh both minor sons of Jagdish Singh resident of Village Baheri Khap P.O. War P.S. Madanpur Dist. Aurangabad Defendants- Respondents-Respondents ----------------------- For the appellants: Mr Dhurb Narayan, Sr. Advocate Mr Jitendra Prasad Singh, Advocate ----------------- 06 16.11.2009 Heard learned counsel for the appellants. 2. This second appeal has been filed by the defendants- appellants-appellants challenging the judgments and decree of both the learned courts below. 3. The matter arises out of Partition Suit no.280 of 1996 which was filed by the plaintiffs-respondents-respondents Ist set for partition of their 1/3rd share in the suit property and for setting aside the sale deed of the year 1977 said to have been executed by plaintiff no.1 and for other ancillary reliefs. The aforesaid suit was decreed on contest by the learned Subordinate Judge I, Aurangabad vide his 2 judgment and decree dated 18.01.1999. 4. Against the aforesaid judgment and decree of the trial court the defendants-appellants filed Title Appeal no.04 of 1999 (48/2005) which was dismissed on contest by the learned Additional District Judge (Fast Track Court No. V), Aurangabad vide his judgment and decree dated 28.12.2006. The said judgments and decree of the learned courts below are under challenge in the instant second appeal. 5. From the arguments as well as from the materials on record, it is quite apparent that the plaintiffs-respondents claimed partition of the suit land whereas the defendants, although admitted that the suit premises was ancestral property, but claimed that there had been earlier partition, according to which all the co-sharers are in possession of their respective lands allotted to them. 6. Learned counsel for the appellants vehemently challenges the impugned judgments and decree of the learned courts below on the ground that exhibit F, Exhibit C and Exhibit C1 produced by them were not properly considered while deciding the issue of previous possession nor there was any appreciation of the said documents in accordance with law. 7. So far as exhibit F is concerned, it is unregistered plain sale deed dated 28.03.1945 said to have been executed by one Brahmdeo Singh in favour of defendant no.1 with respect to 1.81 acres. The learned courts below considered the matter in detail and found that the said deed can not be said to be legal document for divesting the heirs of Brahmdeo Singh, namely plaintiffs of their right, title and interest in the said property. 3 8. Exhibit C is a sale deed dated 05.02.1977 executed by Fulwati Devi @ Fuleshwari Devi wife of Brahmdeo Singh in favour of her nephew Umesh Singh (defendant no.2). Exhibit CI is the sale deed dated 03.07.1973 said to have been executed by the husband of Fulwati Devi in favour of the defendants. The learned court below found that for the aforesaid sale deeds, no identifying witnesses have been examined and by their contents they do not prove any partition between Brahmdeo Singh and his coparceners -Ram Awatar and Bhavanath rather it shows that 24 5/6 decimals of land under sale deed was ancestral land which were undivided and hence, the learned court below had rightly come to the conclusion that Brahmdeo had no right to sell the land even for necessity or payment of debt unless it was consented to by his coparceners. It was also found by the learned court below that defendants could not establish how many lands and to whom were sold by appellant no.1. In the said circumstances, the learned court below was quite justified in coming to the conclusion that the said documents were created with malicious intention. 9. In the aforesaid facts and circumstances, this Court does not find any illegality in the impugned judgments and decree of the learned courts below, nor does it find any substantial question of law involved in the instant second appeal, which is accordingly dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. (S.N.Hussain,J) shahid