IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.189 of 2006 ----- 1. Bishwanath Turha S/o Kesho Turaha 2. Bhola Turha S/o Kesho Turha 3. Dwarika Turha S/o Kesho Turha 4-A. Laxmi Kuer wife of Ramjee Turha 4-B. Guru Turha S/o Ramjee Turha All resident of village Pakari, P.S. Ara, Nawada District-Bhojpur. Plaintiffs-Appellants-Appellants. Versus 1. Kesho Pd. S/o Baldeo Prasad. 2. Mohan Prasad S/o Chandrama Prasad. 3. Babloo Prasad S/o Chandrama Prasad. 4. Kanhaiya Prasad S/o Suraj Prasad. 5. Krishna Prasad S/o Suraj Prasad. 6. Bishwanath Prasad S/o Suraj Prasad. 7. Suresh Prasad S/o Shankar Prasad. 8. Ashok Prasad S/o Shankar Prasad. 9. Munna Prasad S/o Shankar Prasad All residents of village Pakri P.S. Ara Nawada District-Bhojpur. 10.Usha Devi W/o Ram Kripal Bhagat resident of village +P.O.+ P.S. Amarapara District-Dumka (Jharkhand) 11.Malti Devi W/o Nandji Prasad Bhagat resident of village+ P.O.+ P.S. Shri Kund District- Sahebganj. 12.Smt. Daya Devi W/o Uday Bhagat resident of village Amarpur District Banka. 13. Smt. Dayawanti Devi W/o Shri Niwas Prasad, resident of Dumri P.S. Bhojpur District-Buxar. Defendants-Respondents-Respondents ----------- For the appellants : M/s Dharmendra Kumar & Uday Kumar, Advocates For the respondents : Mr. Anish Chandra Sinha, Advocate. --------- 09. 27.01.2009 I.A.No. 478 of 2009 has been filed on 23.01.2009 on behalf of the appellants for expunging the name of appellant no.4(a) Laxmi Kuer, who died on 10.01.2009 during pendency of the instant second appeal leaving behind a son as his sole heir and legal representative who is already on record as appellant no.4(b). In the said circumstances, the said interlocutory application is allowed. Let the - 2 - name of appellant no.4(a) be expunged. 2. Heard learned counsel for the parties. 3. This second appeal has been filed by plaintiffs- appellants-appellants challenging the judgments and decree of both the learned courts below. 4. The matter arises out of Title Suit no.110 of 1996 which was filed by appellants for declaration of title and confirmation of possession and in the alternative recovery of possession with respect to the suit land and also for injunction and other ancillary reliefs. The said suit was dismissed on contest with cost by learned Execution Munsif, Bhojpur, (Ara) vide judgment and decree dated 28th Feburary, 2001. 5. Against the aforesaid judgment and decree of the learned trial court, the plaintiffs filed Title Appeal No.12 of 2001, but the said title appeal was also dismissed on contest without cost by learned Additional District Judge, Fast Track Court III, Bhojpur, Ara vide his judgment and decree dated 31.05.2006. Against the aforesaid judgments and decree of both the learned courts below, the instant second appeal has been filed. 6. Although, the plaintiffs claimed that Shakhichand Turha died issueless, but the learned courts below after considering the evidence of the parties came to a specific finding of fact that Shakhichand Turha left behind a son Hira Lal Turha as claimed and proved by the defendants. The learned courts below also found that Ext.-B, the sale certificate of 1934 in favour of ancestors of the - 3 - defendants on the basis of sale by court of the properties of judgment-debtor-Hiralal Turha, was a genuine document and the question as to whether Sakhichand Turha was alive during the said period was not at all relevant as the name of the said Hiralal Turha was recorded along with Ram Khelawan Turha in the municipal survey record of 1923 ( Ext.G). 7. So far the question of possession is concerned, the learned courts below concurrently found that the plaintiffs having failed to establish their possession over the suit land, they cannot be allowed to take advantage of any weakness in the case of the defendants as the case of the plaintiffs can succeed on the basis of their evidence alone. So far the point raised by the plaintiffs that predecessors of defendants had not applied for delivery of possession after the sale certificate in accordance with law is concerned, learned courts below have rightly relied upon the decisions of Hon’ble Supreme Court as well as Hon’ble High Court in case of J.Chandrashekhar Reddy Vs. D.Arora, Chief Secretary to Government of A.P and another, reported in AIR 1994 Supreme Court 526, and in case of Smt. Lalita James and others Vs. Ajit Kumar and others, reported in AIR 1991 Madhya Pradesh 15, as well as in case of Pethaperumal Ambalam v. Chidambaram Chettiar, minor through property guardian, P.E. Eapen, reported in AIR 1954 Madras 760, in which it has been held that possession can be taken outside the court and filing of any application for possession before any authority was not mandatory. - 4 - 8. In the aforesaid facts and circumstances, this court does not find any illegality in the impugned judgments and decree of the learned courts below which are also covered by findings of facts. Furthermore, this court does not 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. Sunil (S. N. Hussain, J.)