IN THE HIGH COURT OF JUDICATURE AT PATNA S.A. No.106 of 2006 ---- 1. Radha Shyam Mahto 2. Satya Narain Mahto. 3. Arjun Mahto All are sons of Mahabir Mahto. All resident of Village-Barka Teghara Pergana Barari, Police Station and Post Office- Maharajganj, District-Siwan. -- Defendants-Appellants-Appellants. Versus 1. Gautam Prasad @ Gautam Mahto 2. Awadhesh Prasad 3. Kuwari wife of Ashdeo Mahto All sons and daughter of Late Ram Sagar Mahto. 4. Babu Lal Prasad, son of Jatoo Mahto. All residents of Village- Barka Teghra, Pergana Barari, Police Station and Post Office-Maharajganj, District-Siwan. -- -Plaintiffs- Respondents -Respondents 1st Set. 5. Lilawati Devi, wife of Gorakh Nath Prasad, daughter of Late Mahabir Mahto. 6. Ramjeet Prasad, son of Parma Mahto. 7. Shri Ram Mahto. 8. Awadh Kishore Mahto. 9. Nand Kishore Mahto. 10.Sheo Kumar Mahto. All sons of Late Prahlad Mahto. 11. Sheorati Devi. 12. Shri Pati Devi Both daughters of Late Prahlad Mahto. 13. Ramdeo Prasad, son of Dahri Mahto 14. Anil Kumar 15. Bhirgu Nath Prasad Both sons of Late Shyamdeo Prasad. 16. Dhurup Mahto, son of Sheo Sagar Mahto. 17. Rameshwar Mahto, son of Jatoo Mahto. 18. Ganga Sagar Mahto, son of Jatoo Mahto. 19. Rama Shankar Mahto, son of Raghuraj Mahto. 20. Kunti Devi, wife of Premdeo Mahto. All resident of Village-Barka Teghra Pergana Barari, Police Station + Post Office-Maharajganj, District-Siwan. -- Defendants-Respondents-Respondents 2nd Set. ----------- For the appellants : Mr. Shashi Shekhar Dwivedi, Senior Advocate M/s. Ravi Shankar Dwivedi, Ranjan Kumar Dubey and Lakshman Lal Pandey, Advocates. For the respondents Nos. 1,2,3,4 & 19 : M/s. Ganpati Trivedi and Umesh Kumar Mishra, Advocates. - 2 - O R D E R 15. 21.05.2009 Heard learned counsel for the appellants as well as learned counsel for respondents no.1, 2, 3, 4 and 19. 2. This second appeal has been filed on behalf of the defendants-appellants-appellants challenging the judgments and decree of both the learned courts below. 3. The matter arises out of Title Suit No.227 of 1982 which was filed by plaintiffs-respondents-respondents 1st Set for partition of the suit land detailed in Schedules I and II of the plaint. The said suit was decreed in part on contest by the learned Subordinate Judge 3, Siwan vide judgment dated 17.08.1999 and preliminary decree was prepared. 4. The plaintiffs filed Title Appeal No.79 of 1999 against that part of the judgment and decree of the trial court by which part of their claim was rejected, but the said title appeal was dismissed by the learned 4th Additional District Judge, Siwan vide his common judgment and decree dated 18.01.2006. Against that dismissal, the plaintiffs did not prefer any second appeal and it attained finality. 5. Furthermore, T.A. No.89 of 1999 was filed by the defendants-appellants against that part of the judgment and decree of the trial court by which the claim of the plaintiffs was partly allowed. The said title appeal filed by the defendants was dismissed by the same court by common judgment and decree dated 18.01.2006. The defendants-appellants have filed the instant second - 3 - appeal only against that part of the judgment and decree of the lower appellate court by which Title Appeal No.89 of 1999 was dismissed. 6. After preliminary decree of the trial court, the plaintiffs had filed a petition for preparation of final decree and after due process of law Takhtabandi etc. were done and the Commissioner submitted his report which was accepted by the trial court, whereafter final decree was also prepared in accordance with the preliminary decree. However, the said final decree was not challenged by any party and it attained finality. Hence, the plaintiffs levelled Execution Case No.01 of 2007 for execution of the aforesaid final decree in which delivery of possession was also effected through the process of the court to the respective parties with respect to the portions of the land allotted to them in the decree. The said delivery of possession was duly confirmed on 15.09.2007 by the learned executing court, namely 3rd Subordinate Judge, Siwan. 7. After considering the arguments of the parties as well as the materials on record, including the impugned judgment and decree, it is quite apparent that the learned courts below after considering the pleadings and evidence of the parties came to the conclusion that Roshan and Rojhan were full brothers being the sons of Tahal and the lands of Khata nos. 106, 120, 95 were joint family properties, out of which in khata nos. 106 and 120, the plaintiffs, who are the heirs of Rojhan Mahto, had half share, whereas in khata no.95, they had 1/3 share, but plot no.66 was the exclusive property - 4 - of Roshan whose heirs, namely defendants 1 to 11 inherited the same and the plaintiffs had no share, interest, right or title in the same. The said findings are concurrent findings of both the learned courts below after full and proper appreciation of the respective pleadings and evidence of the parties. 8. Furthermore the entire matter has attained finality as the final decree has been prepared and, without being challenged, it has been duly executed and delivery of possession has been effected in accordance thereof and specific lands have been allotted to the respective parties in the execution case with which all the parties, including the appellants, appear to be satisfied as they have not ever challenged the same, although several years have lapsed. 9. 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 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.)