IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.163 of 2006 1. Dina Nath Pandit 2. Raghunath Pandit 3. Shyam Nath Pandit All sons of late Bhabhikshan Pandit 4. Mostt. Chandrakala Devi wife of Late Bhabhikshan Pandit 5. Shakalwati Devi @ Sakal Devi wife of Mahindra Pandit 6. Mira Devi wife of Umesh Pandit All residents of village Bhakurahar P.O. & P.S. Bairgania, District-Sitamarhi. ….Defendants/Appellants/Appellants. Versus 1. Bharat Pandit son of Late Baldeo Pandit. 2. Makeshwar pandit son of Bharat Pandit. Both residents of village-Bhakurahar P.O. & P.S. Bairgania, District-Sitamarhi. …. Plaintiffs/Respondents/Respondents. ----------- 05/ 27.11.2008 Heard learned counsel for the appellants. This second appeal has been filed by defendants-appellants- appellants challenging the judgments and decree of the learned courts below. The matter arises out of Partition Suit No. 45 of 1984, which was filed by the plaintiffs-respondents-respondents for partition of their moiety share in the suit properties and the said suit was decreed on contest with cost by the learned Subordinate Judge-I, Sitamarhi, vide judgment and decree dated 14.07.2004. Against the said judgment and decree of the trial court the defendants filed Title Appeal No. 15 of 2004 ( 01/05), which was dismissed by the learned Additional District Judge- cum-Fast Track Court No.II, Sitamarhi, vide judgment and decree dated 16.12.2005. The said judgments and decree of the learned courts below are under challenge in the instant second appeal. Admittedly, plaintiff no.1 Bharat Pandit was predecessor of the defendant, namely Babhikshan Pandit and both of them were sons of 2 Baldeo Pandit. After considering the pleadings of the parties as well as the evidence on record, both the learned courts below found that all of them were members of the joint Hindu family of Baldeo Pandit, who had sufficient income from the business of mortgage and the family had sufficient nucleus also. It was also found by the learned courts below that the defendants had failed to prove earlier partition in the family, whereas the plaintiffs were able to prove that the parties had unity of title and possession over the suit land and the plaintiffs were entitled to a moiety share in the suit properties. It was also found that the claim of the defendants that the onus was upon the plaintiffs to prove that the acquisition by the defendants in their own name, was from nucleus of the family was not acceptable as the plaintiffs had proved that the parties were members of the joint family, which had nucleus and since the defendants were claiming a previous partition on the basis of which they further claimed acquisition in their own name, the onus was squarely upon the defendants to prove the said previous partition in which they had miserably failed. 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 second appeal, which is accordingly dismissed at this stage of hearing under Order XLI. Rule 11 of the Code of Civil Procedure. harish/ ( S.N.Hussain, J.)