IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.548 of 1999 1.Kedar Mali S/o Late Ram Swaroop Mali 2. Durga Mali 3.Nandu Mali 4.Naresh Mali 5.Binod Mali 6. Pramod Mali all sons of Kedar Mali, resident of Village-Bhadija,P.S. Mofasil,Distt. Gaya… Defendants-Appellants-Appellants. Versus 1. Baijnath Mali S/o Swaroop Mali 2.Ramdeo Mali 3.Baldeo Mali 4.Triloki Mali 5. Laxman Mali 6.Arun Mali 7. Madan Mali 8. Birju Mali 9. Santosh Mali all sons of Baijnath Mali resident of Vill. Bhadija,P.S.Mofasil,Distt.Gaya……… …Plaintiffs-Respondents-Respondents. For the Appellants: Mr.Kalyan Kumar Ghose,Advocate. For the Respondents: None 4 10.12.2009 Heard the 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 Title Partition Suit No.52 of 1997( 151 / 1997) which was filed by the plaintiffs- respondents- respondents for partition of their moiety share in the suit property detailed in the Schedule of plaint and for other ancillary reliefs. The said suit was decreed on contest vide judgment and decree dated 28.5.98. 4. Against the aforesaid judgment and decree of 2 the trial court the defendants appellants filed Title Appeal No.32 of 1998 (46/1998) which was dismissed by the learned Additional District Judge, Gaya, vide his Judgment and decree dated 29.9.1999. Against the aforesaid Judgments and decree of the learned courts below the instant Second Appeal has been filed. 5. Learned counsel for the appellants vehemently challenges the said judgments and decree of the learned courts below and claims that no documentary evidence adduced by the parties were properly read and considered by the learned courts below as would be apparent from their judgments themselves. In this regard he relies upon the decision of the Hon’ble Apex Court in case of Sundra Naicka Vadiyar (dead) by L.Rs. and another, Appellants versus Ramaswami Ayyar (deal) by his L.Rs., respondents reported in AIR 1994 S.C. 532. 6. Learned counsel for the appellants also submits that earlier partition was accepted by both the learned courts below and hence there was no occasion for them to allow the issue of unity of title and possession between the parties and decree the suit for partition. In this regard he relies upon a decision of a Division Bench of this Court in case of Jatru Pahan and another, appellants versus Mahathma Ambikajit Prasad and another, respondents reported in AIR 1957 Patna 570. 7. After considering the argument of the learned counsel for the appellants and the materials on record including 3 the Judgments and decree of both the learned courts below it is quite apparent that it has been rightly found that in para 3 of the plaint the plaintiffs had asserted that the suit land which was sought to be partitioned is still in the manes of plaintiff no.1 and defendant no.1 jointly and this fact was not disputed by the defendants. Further more the learned courts below considered the evidence of the parties in details and only thereafter came to the conclusion that although some sada papers of partition were produced but it was quite apparent from those documents that there was no partition by metes and bounds between the parties and hence it was held that the plaintiffs and the defendants had unity of the title and possession over the suit property as there had never been any partition by metes and bounds. In such circumstance the above mentioned decisions of the Hon’ble Courts are not applicable to the facts and circumstances of this case. 8. So far the other question of partial partition is concerned the learned courts below have specifically found that according to the defendants themselves the house situated at Mohalla- Maulaganj, Gaya, which was not included in the suit property was returned to the plaintiff by deed of gift in the year 1988 and the witnesses have admitted this fact. Hence, non- inclusion of the said house does not mean that partial partition was sought by the plaintiffs. Hence the plaintiffs were clearly entitled to a decree of partition of their moiety share in the suit 4 property only. 9. In the aforesaid facts and circumstances this Court does not find illegality in the impugned Judgments and decree nor does it find any substantial question of law involved in this Second Appeal which is thus dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. Anil Kr.Sinha (S.N.Hussain,J.)