IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.400 of 2010 Ram Lakhan Choudhary,Son of late Gobardhan Choudhary, Resident of village – Ajho, P.O- Barahi, P.S- Pauthu, Dist- Aurangabad ……………………Plaintiff/ Respondent/ Appellant Versus Smt. Rajpati Devi wife of Sri Keshav Singh, Resident of village- Manjhauli, P.O- Barahi, P.S- Pauthu, Dist- Aurangabad. Batasiya Devi, daughter of late Gobardhan choudhary, widow of late Ganauri Chaudhari Ram Jatan Choudhary, son of Late Gobardhan Choudhary, both 2 and 3 residents of village- Ajho, P.O- Barahi, P.S- Pauthu, Dist- Aurangabad. …………………….. Defendant/Respondents 5 30.11.2011 Heard the learned counsels appearing on behalf of the parties. The plaintiff, who has lost in the court below in the appeal by the defendants, has filed this second appeal. The plaintiff has filed the suit praying for partition of the suit land after setting aside the sale deed dated 19.9.1996 executed by the original defendant No. 1 Mungia Devi ( since deceased) in favour of the defendant No. 3 Rajpati Devi . There is no dispute that the sale deed with regard to the suit land stands in name of Mungia Devi. However, it is the case of the plaintiff that Mungia Devi was not the 2 exclusive owner of the suit land rather the same was the joint family property of the family having Gobardhan Choudhary as common ancestor. But the contesting defendant No. 3 ( purchaser, from Mungia Devi) has claimed that the suit land was the exclusive property of Mungia Devi who had purchased the same out of her Stridhan and has every right to sell the same to the defendant No.3. It appears that Mungia Devi had been impleaded as defendant No. 1 in the suit, and had also filed a written statement supporting the case of the plaintiff but she had not been examined in the suit even though she remained alive for ten years after the filling of the suit.It also appears that the heir of Mungia Devi has also not been examined in the suit even after his substitution in place of Mungia Devi and thus the pleading by way of written statement by Mungia Devi, subsequently adopted by her heir, has not been proved. The trial court after considering the evidence on record in the light of the pleadings of the parties has decreed the suit. However in appeal the appellate court has reappraised the evidence in view of the rival submissions 3 and reversed the judgment and decree of the trial court. The judgment of the appellate court below is under challenge in the appeal. From perusal of the appellate court judgment, it appears that, the appellate court has meticulously examined the evidence of the parties as well as the circumstances appearing in the case and has come to the finding that the suit property was the exclusive property of Mungia Devi and she had every right to alienate the same to the defendant No.3 who has acquired valid right, title and interest on the basis of the sale deed dated 19.9.96 executed by Mungia Devi. The appellate court has considered the different issues arising between the parties under sub-heads and has given his finding on the basis of the evidence. The non examination of Mungia Devi or her substituted heir as well as the brother of the plaintiffs as witnesses in the suit has been taken notice by the appellate court. The another factor which has weighed with the appellate court is that Mungia Devi had also sold the portions of the suit land to different persons by registered sale deeds and on the basis of evidence it has also been found that those purchasers are in possession of their 4 purchased land and one of the purchasers is the PW 2 who has been examined as witness by the plaintiff in support of his case. However the plaintiff has not chosen to assail those alienations made by Mungia Devi and has even not impleaded those purchaser of the suit land as parties to the suit and on the basis of these facts also the appellate court has disbelieved the case of the plaintiff regarding the suit land being the joint property. The learned senior counsel Mr. D.K.Sinha appearing on behalf of the appellants has raised only one substantial question of law for consideration to the effect that the reasonings assigned by the trial court in granting the decree to the plaintiffs have not been considered by the appellate court while reversing the same. It has been argued that the appellate court should have at least come to close quarters with the reasonings of the trial court and should have assigned its own reason to differ with the same. However, from perusal of paragraph 20 of the appellate court judgment it appears that the appellate court has been fully conscious of the reasonings assigned by the trial court and has also assigned its own reasons for reaching to different conclusions from the trial court. The appellate 5 court below on its own appreciation of evidence has given its finding on different issues arising between the parties and during the course of the argument no perversity in the findings of the fact arrived at by the appellate court could be established. For the foregoing reasons, no substantial question of law arises for consideration in this appeal. This appeal is accordingly, dismissed. Namita ( V.Nath , J.)