IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.154 of 2008 1. Ram Pujan Sharma son of Anant Thakur 2. Atma Sharma son of Ram Pujan Sharma Both resident of Village Siswa P.O. Pargana Bara P.S.Gautam Budh Nagar Dist. Siwan Plaintiffs-Appellants-Appellants Versus 1. Chandeshwar Singh @ Oversiyar Singh 2. Wakil Singh Both sons of Surajdeo Singh resident of Village Siswa P.O. Ukhai Pargana Bara P.S.Gautam Budh Nagar Dist. Siwan Defendants 1 and 2-Respondent Ist set 3. Man Bahal Bin Son of Tapi Bin resident of Village Siswa P.O. Ukhai Pargana Bara P.S.Gautam Budh Nagar Dist. Siwan Defendant no.3-respondent no.3-performa respondent ----------- For the appellants: Mr Raghav Prasad, Advocate Mr Maheshwar Prasad, Advocate --------- 04 12.10.2009 Heard learned counsel for the appellants. 2. This second appeal has been filed by the plaintiffs- appellants-appellants challenging the judgments and decree of both the learned courts below. 3. The matter arises out of Title Suit no.136 of 1992 which was filed by the plaintiffs-appellants for deceleration of their title , confirmation of possession and alternatively for recovery of possession for injunction and other ancillary reliefs. 4. The said suit was contested by the defendants and after considering the evidence and pleadings of the parties on the issues involved, learned Munsif I, Siwan dismissed the said suit vide his judgment and decree dated 28.01.1998. 5. Against the aforesaid judgment and decree of the learned trial court , plaintiffs filed Title Appeal no.31 of 1998 which was also contested by the defendants-respondents and after considering the - 2 - averments made by learned counsel for the parties as well as materials on record and different provisions of law, the learned Additional District Judge (Fast Track Court) no. III, Siwan dismissed the said appeal, vide his judgment and decree dated 19.02.2008.The said judgments and decree of the learned courts below are under challenge in the instant second appeal. 6. The main issue in the said case was as to whether the sale deeds executed by Sheo Pujan Tiwary and Nand Kishore Tiwary in favour of the plaintiffs-appellants, dated 08.12.1987 with respect to the suit land were genuine, valid and for consideration and whether the plaintiffs got any right, title and possession over the suit land on the basis of the aforesaid sale deeds and whether they were entitled for a decree for recovery of possession. On the point of plaintiffs’ vendor being rightful owner of the suit land, the learned courts below carefully considered the pleadings and evidence of the parties and found that the boundary of the suit property was not the same as given in the sale deed of the plaintiffs rather the boundary of the suit land was same as in the sale deed produced by the defendants. It was thus rightly held by the learned courts below that in view of settled principle of law if there is conflict between khata, khesra number and the boundary, the boundary shall prevail. Reference in that regard may be made to leading case of the Hon’ble Supreme Court in the case of Sheodhyam Singh & others vs. Mst Sanichara Kuer and others reported in AIR 1963 1879. 7. The learned courts below also realized the settled principle of law that the plaintiffs have to prove their case and they can not take help of any weakness in the claim of the defendants and - 3 - specifically found that the plaintiffs have miserably failed to prove their claim on the basis of evidence produced by them which is discussed in detail by the learned courts below. 8. Considering the facts and circumstances as well as materials on record, the learned courts below rightly came to the conclusion that the plaintiffs-appellants have got no right, title and possession over the suit land on the basis of their alleged sale deed dated 08.12.1987 as the said sale deed was executed by a person who had no right to execute the same and said sale deed never became operative. It was also found from the evidence on record that Bindheyachal Tiwary had executed sale deed dated 22.01.1972(Exhibit B/1) in favour of Man Bahal Bind with respect to the suit land much prior to the execution of the sale deed by the plaintiffs and the said Bindheyachal Tiwary being owner of the said sale deed it can not be said to be illegal or invalid. 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