IN THE HIGH COURT OF JUDICATURE AT PATNA MJC No.3190 of 2008 Rambabu @ Rambabu Guptta S/o Late Keshwar Sao & others, resident of village - P.O. Amba, P.S. Kutumba, District Aurangabad. ….Petitioners Versus Ram Autar Sahu & others………Opposite parties. ----------- 06/ 05.05.2010 This petition has been filed for restoration of S.A. No.264 of 1994 which was dismissed by this court vide order dated 06.08.2007due to abatement of the second appeal. 2. From the materials on record, it transpires that on 23.07.2007 learned counsel for the respondents informed this court that respondent no.1 had died in December, 2006 and hence the second appeal had abated against him and in that view of the matter learned counsel for the appellant sought two weeks adjournment for seeking instructions and to file necessary application for substituting the heir of respondent no.1 and also for condoning the delay as well as setting aside abatement, but it transpires that the said order was not complied and hence by order dated 06.08.2007 this court held that due to the death of respondent no.1 and non-substitution of his heirs, the second appeal had abated against them. 3. It was also found that since the second appeal had arisen out of a partition suit in which respondent no.1 was defendant no.1 and was a necessary party for the suit as well as for the appeal who contested the claim of the plaintiff-appellant, 2 whereafter the suit of the plaintiff-appellant was dismissed, the abatement of the second appeal against the said respondent no.1 had led to the abatement of the entire second appeal which was dismissed. Hence, this court does not find any reason to recall the said order which appears to be in accordance with law. 4. Furthermore, so far the merit of the case is concerned, the second appeal was filed by the plaintiff-appellant who sought partition of the suit property claiming it to be ancestral property, but both the courts below dismissed his claim on the basis of specific pleadings and evidence of the parties holding that there was already a previous partition and hence the partition suit cannot be decreed. Such concurrent findings of fact based on pleadings and evidence of the parties cannot legally be interfered in a second appeal under the provision of section 100 of the Code of Civil Procedure. Hence the second appeal also having no merit there is no occasion for this court to modify the order of this court dated 06.08.2007 passed in S.A. No.264 of 1994. 5. In the aforesaid facts and circumstances this M.J.C. petition is dismissed. harish/ ( S. N. Hussain, J. )