IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.81 of 2006 1. Smt. Dulhin Raj Kumari Devi wife of late Raghu Nath Ram. 2. Smt. Dulhin Param Jyoti Devi wife of Sri Banarsi Ram, both resident of Mohalla- Chawar Takiya, Police Station- Saram ( T.P.S.) District- Rohtas. …. Plaintiffs- Appellants- Appellants. Versus 1. Smt. Saraswati Devi wife of late Ram Chandra Chaurasia @ Ram Chandra Ram 2. Bachan Chaurasia. 3. Gulab Chaurasia 4. ddAjay Chaurasia 5. Champa Devi wife of Kashi Chaurasia, Sl. No. 2 to 5 sons and daughters of late Ram Chandra Chaurasia @ Ram Chandra Ram, all residents of Mohalla- Chawar Takiya, Police Station- Sasaram ( T.P.S.), District- Rohtas. 6. Anil Kumar 7. Sunil Kumar 8. Pintu Kumar, Slt. No. 6 to 8 sons of Laxman Ram, resident of Mohalla Chawar Takiya, P.S. Sasaram ( T.P.S.), District Rohtas … Respondents 1st Set. 9. The Executive Officer, Sasaram Municipality, Sasaram, District- Rohtas. 10. The Special Officer, Sasaram Municipality, Sasaram, District- Rohtas ( Respondents 2nd set in the suit and Title Appeal)- Respondents 2nd Set- Respondents. ----------- For the appellants: Mr. Satya Narayan Mishra, Advocate. For the respondents : None. ---------------- 5/ 03-12-2008 Heard learned counsel for the appellants. 2. This second appeal has been filed on behalf of the plaintiffs- appellants- appellants challenging the judgment and decree of the learned courts below. 3. The matter arises out of Title Suit No. 149 of 1984 which was filed by the appellants for declaration that the plaintiffs had acquired valid title and possession over Schedule-A land and house and for other ancillary reliefs. 4. The aforesaid suit was decreed in part up to the 1/3 - 2 - share of the plaintiffs in the suit house and for the rest 2/3 share the suit was dismissed on contest without cost by the learned Munsif-1, Rohtas at Sasaram vide judgment and decree dated 29.04.1989.The said judgment and decree of the learned trial court was challenged by the plaintiffs in Title Appeal No. 51 of 1989 which was also dismissed on contest without cost by the learned Additional District Judge, Fast Track Court No.2, Rohtas at Sasaram by his judgment and decree dated 18.02.2006. The said judgments and decree of the learned courts below have been challenged in the instant second appeal. 5. It is an admitted fact that the three brothers, namely, Manik Chand Ram, Amirchand Ram and Ram Kishun Ram were joint and out of them Manik Chand Ram died issueless in a state of jointness with his other two brothers leaving behind a widow Taragana Kuer who remained with Amir Chand Ram. 6. Learned courts below very carefully considered the pleadings and evidence of the parties, whereafter they came to the concurrent findings that the evidence clearly showed that no partition by metes and bounds was done among the said persons or their heirs and successors who are parties to the suit, rather Kuwar Ram separated from his father and step brother as he was not pulling on well with his step mother and hence he separated in mess, living and business. The learned court below has also found that mere separation in food and worship does not operate as complete estrangement from the joint family property as the presumption will always be that unless there happens any partition by metes and bounds every joint Hindu family remains joint. It was also found that although it has been - 3 - contended that Kuwar Ram had started business of Goshanda, Agarbati and Press but the plaintiffs had not produced any separate account of earning of said Kunwar Ram in the case, whereas there were definite joint family properties. In the said circumstances the learned courts below rightly held that the family of the plaintiffs and defendants are joint Hindu family and acquisition made by Karta Kuer Ram was from the nucleus of the joint family . 7. It was also held that since it has been found that there was no partition of Kuwar Ram from the joint family and there was a nucleus in the joint family and no partition by metes and bounds had taken place, the said Kuwar Ram had no right to gift the property in favour of the plaintiffs and the said document was void. The learned courts below also rightly held that it is settled principles of law that possession of one co-sharer would be the possession of all other co-sharers also and as such the plaintiffs and defendants had title and possession over the suit house with respect to their respective shares and accordingly, the plaintiffs had only 1/3 share in the suit property and to that extent the suit has been decreed by the learned trial court. 8. In the said 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. B.Tiwary/ (S.N Hussain,J)