IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.1 of 2005 MANGRU MIAN & ORS. Versus DHRUB PRASAD & ORS. ----------- 07/ 16.09.2008 I.A. No. 5576 of 2008 has been filed on 11.09.2008 for substituting the heirs of appellant no.1, namely Mangaru Mian, who is said to have died on 01.07.2007 leaving behind a widow, four sons and two daughters as his heirs and legal representatives fully detailed in paragraph no.2 of the aforesaid interlocutory application, whose vakalatnama is also attached therewith. I.A. No. 5575 of 2008 has been filed on behalf of the appellants for condoning about eleven months’ delay in filing of the aforesaid interlocutory application. A prayer for setting aside abatement has also been made. Considering the averments made by learned counsel for the appellants and the statements made in I.A. No. 5575 of 2008, it appears that genuine reasons have been shown for the said delay. Accordingly, both the interlocutory applications are allowed, delay is condoned and abatement is set aside. Let the heirs of appellant no.1 mentioned above be substituted in his place. Heard learned counsel for the appellants. This second appeal has been filed by the plaintiffs- appellants-appellants against the judgment and decree of affirmance. The matter arises out of Title Suit No. 32 of 1989(24 of 1994), which was filed by the plaintiffs-appellants for declaration that partition between Ismail Mian and Bibi Basiran had already taken - 2 - place by mutual consent with the aid of Panches in the year 1968 and for a declaration that Bibi Basiran defendant no.4 was not entitled to execute sale deed and gift deed in favour of defendant nos. 1 to 3 in respect of Schedule-III and IV lands and also for declaration that the said sale deeds and gift deed dated 21.08.1989(Ext.C series) were voidable and not binding against the plaintiffs and the same should be cancelled and also for restraining defendant nos.1 to 3 from interfering with the peaceful possession of the plaintiffs over Schedule-III and IV lands. The said suit was dismissed by the learned Subordinate Judge-II, Bagha vide judgment and decree dated 16.09.1995, which was challenged by the plaintiffs in Title Appeal No.88 of 1995, which was also dismissed by the learned 5th Additional District Judge, West Champaran vide judgment and decree dated 26.08.2004. Against the aforesaid judgments and decree of the learned courts below the instant second appeal has been filed. The main issue to be decided in the suit and in the appeal was that whether any Panchayati vide Panchnama of 1968 (Ext.4) was held between Bibi Basiran and Ismail Mian as claimed by the plaintiffs and whether Bibi Basiran had executed any deed of relinquishment vide Ekrarnama of 1972(Ext.2) after receiving her share and also as to whether the sale deeds and gift deed dated 21.08.1989(Ext.C series) executed by Bibi Basiran in favour of defendants were genuine. So far the question of partition is concerned, the learned - 3 - courts below had specifically found that Ext.4 is said to be an unregistered Panchnama of 1968 but it bears no details of any land allotted to the share of respective parties. It was also found that there was no material on record to show that there was a copy of Batwara in the Office of Gram Kachehry and Ext.4 is said to have been obtained as certified copy from Mukhiya. In the said circumstances, the learned court of appeal below rightly found that Ext.4-the Panchnama was not a reliable and proper document on the basis of which it could be presumed that there was a partition. So far the question of relinquishment is concerned, the basis of the said claim of the plaintiffs is Ekrarnama dated 31.05.1972(Ext.2), which is an unregistered document and no witness of that document has been examined to support the genuineness of the said document. Furthermore, the learned courts below have rightly found that no right and title over the property can be legally taken away on the basis of such unregistered colourable documents. So far the challenge of the plaintiffs against deeds of transfer(Ext.C series) is concerned, the learned courts below have considered the entire pleadings and evidence of the parties concerned and only thereafter it was held that the sale deeds and gift deed executed by Bibi Basiran in favour of defendant nos.1 to 3 were with respect to the share of Bibi Basiran and the said documents were quite genuine conferring right, title, interest and possession upon the defendants, which were through out acted upon. Furthermore, the claim of relinquishment being based on merely Ekrarnama(Ext.2), - 4 - which is already found to be unregistered and against the specific provisions of law, the said transfer vide Ext.C series in favour of defendants by Bibi Basiran is absolutely legal, valid and proper. 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. harish ( S. N. Hussain, J. )