IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.213 of 2001 1 (A) Shanti Kumari 1(B) Raj Kumari Devi 1(C) Phool Kumari Devi 2. Shatrughan Sharma 3. Lakhan Sharma both sons of Bishun Mistri 4. Bharat Sharma son of Bishun Sharma 5. Mostt. Tija Devi W/o Late Brahmadatta Mistri 6. Rajdeo Sharma 7.Ramdeo Sharma All of them are resident of village + P.O. Alipur P.S. Arrah Muffasil Dist Bhojpur Defendants-aappellants-appellants Versus 1.Sheo Mangal Sharma S/o Late Ram Prasad Mistri 2. Tej Narain Sharma minor son of Sheo Mangal Sharma All of them are resident of village + P.O. Alipur P.S. Arrah Muffasil Dist Bhojpur Plaintiffs-respondents-respondents ----------- 22 10.02.2009 Heard Mr Rajiv Shukla, learned counsel for the defendants-appellants- appellants. The said counsel argued very ably and enthusitically against the judgments and decree of both the learned courts below. 2. The matter arises out of Title Suit no.170 of 1991 which was filed by the plaintiffs- respondents-respondents for partition of their one third share in the suit properties detailed in Schedule A of the plaint and also for restraining the defendants from putting the interest of the plaintiffs to any harm and for other ancillary reliefs 3. The said suit was decreed on contest by the learned Subordinate Judge V, Ara vide judgment and decree dated 29.05.1994. Against the aforesaid judgment and decree of the trial court, the defendants-appellants- appellants filed Title Appeal no.41 of 1995 which was dismissed on contest with cost by the learned Addl. District Judge, III, Bhojpur, vide judgment and decree dated 07.04.2001. The - 2 - said judgments and decree of the learned courts below are under challenge in the instant second appeal. 5. The main point for consideration in the suit was as to whether there had been any previous partition of the joint family properties as claimed by the defendants and that whether the suit properties were joint and the plaintiffs were entitled to get it partitioned by metes and bounds to the extent of one third share as claimed by them. Both the courts below considered the respective pleadings of the parties as well as evidence, both oral and documentary, adduced by them where after they came to the specific conclusion that the family in question was joint and no previous partition had taken place. It was also found that the defendants had miserably failed to prove and establish the factum of the partition in the joint family on 01.07.1977 as claimed by them. Both the learned courts below further found that the suit properties alleged to have been purchased in the name of Brahmadat Mistri and Bishun Mistri were purchased from the income of the joint family properties as there was nothing on record to show that the defendants had their seprate earning and saving from which the consideration money of the said sale deed (Exhibit A) was paid and hence there was nothing to doubt that the defendants had failed to discharge their burden to prove the claim of self acquisition of the suit land by them whereas the plaintiffs had fully proved that the said properties were purchased from the joint family fund. 6. So far the question of abatement under the provision of the Bihar Consolidation of Holdings and Prevention of - 3 - Fragmentation Act, 1956 is concerned, the learned courts below had very carefully considered the matter and found that both the parties had admitted even before the trial court that the Chakbandi scheme had been closed and stopped for indefinite period and as such the suit can not be abated. The lower appellate court also considered the said point and found that one of the defendants as DW 7 and his witness DW 10 had admitted that the Chakbandi operation had been closed in the area and on that ground no specific order of abatement was passed by the trial court and hence at the appellate stage, the same defendants can not be allowed to raise contradictory stand frustrating the substantial justice. Hence this court finds that the learned courts below have not committed any mistake in their said findings. 7. In the aforesaid facts and circumstances of the case, 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. shahid (S.N.Hussain,J) - 4 -