IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.54 of 2002 Asgar Ali Ansari Versus Lakhi Khan & Ors ---------------------------------- 5 21-12-2011 A substitution petition has been filed on behalf of the heirs and legal representatives of the sole appellant Ashgar Ali Ansari stating therein that the sole appellant died on 18-6-2009 leaving behind the heirs and legal representatives as mentioned in paragraph no.10 of the petition. The applicants have stated the reasons for the delay in filing the substitution petition submitting that the earlier advocate Mr. Mahesh Prasad died on 2-3-2009 and these applicants had no information regarding the case and as such they have been prevented by sufficient cause from moving this Court for substitution within time. In view of the facts stated in the substitution petition as well as the petition for condonation of delay, the delay in filing the substitution petition is hereby condoned and consequently abatement is also set aside and the heirs and legal representatives of the sole appellant, Asgar Ali Ansari, as mentioned in paragraph no.10 of the substitution petition, are hereby substituted in his place after expunging his name from the records of this appeal. The heirs and legal representatives have appeared in this appeal by filing Vakalatnama. Heard the learned counsel appearing on behalf of the appellant under Order 41 Rule 11 C.P.C. in support of this appeal. The suit has been filed by the plaintiff for the declaration that the plaintiff is holder of Raiyati Khidmati Jagir 2 land as Mutwali of the private Jharha mosque, and further for declaration that the defendants have no right over the suit property either as Mutwali or as members of a Committee. The plaintiff has based his claim on the basis of two Hukumnamas granted by the ex-landlord appointing the plaintiff as Mutwali and Khidmatgar of the mosque in question. It is the case of the plaintiff that since thereafter the original plaintiff and after his death his family members are continuing in possession of the suit property as such. Contradicting these assertions, the defendants have stated that the suit property is a public property being used by the public as mosque and Kabristhan and a Committee has also been formed for management of the affairs of the same and on this basis the defendants denied the private right claimed by the plaintiff in the suit property. Both the courts below after considering the evidence, in view of the pleadings and submissions of the parties, have come to the finding that the claim of the plaintiff is not correct. It has been further found that the suit property consisting of mosque and Kabristhan is public property and is being managed by a Committee. The learned counsel appearing on behalf of the appellant has contended that the findings recorded by both the courts below are based upon misappreciation of evidence and both the courts below have not approached the case of the plaintiff in right perspective. It has been urged by the learned counsel that the averments made in the Hukumnamas clearly show that the suit 3 property was the property of the ex-landlord, who had the right to settle the same to the plaintiff and after taking the settlement the ancestor of the plaintiff and thereafter the plaintiff has been coming in exclusive peaceful possession of the suit property. It has also been contended that the suit property is not public property and the defendants have no concern with the same. After perusing the impugned judgments and considering the submissions of the parties, it appears that the core question in the suit was as to the nature of the suit property and the right acquired over the same by the plaintiff through the settlement by Hukumnamas. The appellate court below in its judgment has recorded the finding that the plaintiff has not given the details of the suit land in the plaint and has also not described the area of plot nos. 771 and 774 which he has claimed. It has also been found that Plot nos. 771 and 774 have not been mentioned in the Hukumnamas on the basis of which the plaintiff has claimed his right. Further, after considering the evidence led by both the parties, it has been concurrently found that the suit property is a public property and the plaintiff has not acquired individual personal right over the same. It appears from the impugned judgments that the issues arising between the parties have been settled by concurrent findings of fact based on evidence on record. As such, no substantial question of law arises for consideration in this appeal, which is, accordingly, dismissed. roy ( V. Nath, J.)