IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.244 of 2004 1. Dhaneshwar Rajak s/o Late Gambhir Rajak 2. Bhola Rajak 3. Mahabir Rajak 4. Mahendra Rajak All sons of Dhaneshwar Rajak 5. Bachu @ Bachchu Rajak All resident of Village Telwa Bazar P.S. Jhajha Dist. Jamui Defendants 1 to 5- Appellants- Appellants Versus 1. Awadh Kishore Modi s/o late Govind Modi resident of Village Telwa Bazar P.S. Jhajha Dist. Jamui Plaintiff-Respondent- Respondent Ist set 2. Titu Rajak s/o late Hadi Rajak 3. Ghanshyam Rajak s/o Shiv Sahai Rajak Both resident of Village Telwa Bazar P.S. Jhajha Dist. Jamui Defendants-Respondents- Respondents 2nd set 4. Prithivinath Modi 5. Chandra Shekhar Modi sons of late Mahadeo Modi 6. Sanjeev Modi 7. Rajib Modi 8. Anup Modi All resident of Village Telwa Bazar P.S. Jhajha Dist. Jamui Defendants-Respondents- Respondents 9. Madan Modi s/o late Dineshwar Modi resident of Village Telwa Bazar P.S. Jhajha Dist. Jamui Defendants-Respondents- Performa Respondents ----------- For the Appellants: Mr Chitragupta Prasad, Advocate ---------- 05/ 13.05.2010 Heard learned counsel for the appellants. 2. This second appeal has been filed by defendant nos. 1 to 5- appellants-appellants challenging the judgments and decree of both the courts below. 3. The matter arises out of Title Suit no.36 of 1993 which was filed by the sole plaintiff-respondent Ist set for declaration of his title and for confirmation of his possession over the suit land detailed in Schedule I of the plaint along with alternative relief for recovery of possession as well as injunction and other ancillary reliefs. The said suit was - 2 - decreed on contest by Subordinate Judge II, Jamui vide his judgment and decree dated 21.09.1997. 4. Against the said judgment and decree of the trial court, defendants-appellants filed Title Appeal no.3 of 1998 which was dismissed on contest by Additional District Judge-cum- Fast Track Court No. V, Jamui, vide his judgment and decree dated 09.08.2004. Against the above mentioned judgments and decree of the courts below instant second appeal has been filed. 5. Learned counsel for the appellants vehemently challenges the aforesaid judgments and decree of the courts below and states that Ratan Baitha had two sons Jeevan Baitha and Chhakan Baitha, out of whom Jeevan Baitha was ancestor of defendants 2nd party whereas defendants Ist party are grand sons of Chhakan Baitha. He further states that there was a family arrangement in the family and the suit property fell in the share of the predecessor of defendants Ist party-appellants and hence they had specific title over the suit property which was not considered by the courts below. It was also stated that defendants-appellants had throughout remained in possession of the suit land which is quite apparent from the complaint case as well as proceedings under sections 144 and 145 of the Code of Criminal Procedure (hereinafter referred to as “the Code” for the sake of brevity) but that aspect of the matter had been completely ignored by the courts below. 6. Considering the averments made by learned counsel for the appellants and also considering the materials on record including the judgments of the courts below, it is quite apparent that claim of the family - 3 - arrangement raised by defendants-appellants could not be proved by them as neither the said defendants nor the witnesses even gave the date of family arrangement whereas on the other hand the plaintiffs had produced consecutive registered sale deeds dated 12.12.1913, 12.10.1925, 12.10.1925 and 13.03.1925 which clearly show that the property belonged to solely Jeevan Baitha who had transferred it to his vendees who were predecessors- in-interest of the plaintiff and the said registered sale deeds were never challenged by any one including defendants. 7. The defendants-appellants have also raised a plea that the suit land was settled with their ancestor and hence they had exclusive right and title in them but they have miserably failed to support their contentions as neither any date of settlement was mentioned nor any document was produced regarding any such settlement. Hence the courts below were quite justified in holding their claim to be baseless and frivolous. 8. The courts below very carefully considered the entire matter in detail and found that the documents produced by defendants- appellants could not show that they were in possession and even the witnesses of defendants could not give specific statements with respect thereto which clearly showed that they were unaware of the suit land itself whereas on the other hand possession of the plaintiff over the suit land was fully proved by his evidence which was reliable and consistent and hence merely on the basis of some findings in a criminal case or proceeding under sections 144 or 145 of the Code of Criminal Procedure the question of title and possession can not be legally decided. - 4 - 9. In the aforesaid facts and circumstances, this Court does not find any illegality in the impugned judgments and decree of the 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. (S.N.Hussain,J) shahid