IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.137 of 2004 1.HIRO GOPE @ HIRO YADAV 2.Khiro Gope @ Khiro Yadav, both sons of Kalchu Gope 3.Janardan yadav 4.Ashok Yadav 5.Shankar Yadav 6.Shambhu Yadav 7.Shiv Yadav @ Shiv Kumar, all sons of late Doman Gope 8.Bhikhari Yadav son of Phuddar Gope 9.Chhanguri Yadav son of late Bindoo Gope 10.Naresh Gope @ Naresh Yadav son of late Sadhi Gope All residents of village Gopalpur, P.S. Sabour, District Bhagalpur--- ------ Defendants---Appellants- Appellants Versus 1.SHABO DEVI 2.Pabo Devi 3.Bato Devi 4.Parbati Devi, all daughters of late Baldeo Gope 5.Jai Prakash Gope 6.Nanda Gope 7.Kailash Gope, all sons of late Narsingh Gope 8.Sarojni Devi 9.Mira Devi 10.Geeta Devi 11.Putulia Devi, all daughters of late Narsingh Gope 12.Ram Kishun Gope son of late Baldeo Gope. 13.Pradeep Yadav 14.Pintu Yadav, both sons of late Mahendra Gope 15.Anita Devi 16.Sunita Devi 17.Punam Kumari 18.Mala Kumari 19.Jullee Kumari, all daughters of late Mahendra Gope 20.Sarbatiya Devi daughter of late Harchoo Gope 21.Jagdish Gope 22.Sakhi Chand Gope, both sons of late Budhoo Gope All residents of village Gopalpur, P.S. Sabour, District Bhagalpur ------------ Plaintiffs------Respondents—Respondent 1st party 23.Bijali Devi daughter of late Doman Gope 24.Most. Jarhi Devi daughter of late Ganesh Gope and wife of late Gopi Yadav. 25.Majo Devi daughter of late Ganesh Gope and wife of Bhudeo Yadav 26.Raju Yadav son of late Bindoo Gope 27.Sumitra Devi wife of late Bitto Gope 28.Awdesh Yadav 29.Wakil Yadav 30.Shiv Kumar Yadav, all sons of late Bitto Gope 31. Tila Devi 32.Nila Kumari, both daughters of late Bitto Gope 33.Mostt. Rashmi Devi, wife of late Sadhi Gope 34.Tariya Devi, daughter of late Sadhi Gope All residents of village Gopalpur, P.S. Sabour, District Bhgalpur Defendants—----Appellants------ Respondents 2nd parties ----------- 2 10. 08.12.2008 Heard learned counsel for the appellants. 2.This second appeal has been filed by the defendants-appellants-appellants challenging the judgments and decree of both the learned courts below. 3.The matter arises out of Title Suit no. 2 of 1977 (19 of 1979) which was filed by the plaintiffs-respondents-respondents for partition of their 2/3rd share in the suit property and for other ancillary reliefs. 4.The aforesaid suit was decreed on contest with costs by the learned Additional Subordinate Judge 7th, Bhagalpur vide by judgment and decree dated 25.9.1979. The said judgment and decree of the trial court was challenged by the defendants in Title Appeal no. 113 of 1979, which was dismissed on contest without costs by the learned Additional District Judge, 3, Bhagalpur, by his judgment and decree dated 22.4.2004. The said judgments and decree of the learned courts below are under challenge in the instant second appeal. 5.Two points were raised by learned counsel for the defendants-appellants; firstly that there already being a previous partition in the family no occasion had arisen for afresh 3 partition; and secondly that the order of the Consolidation authority cannot be challenged before a civil court due to the bar of Section 37 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956. 6.So far as the question of bar of Section 37 of the Act is concerned, the learned courts below have considered the matter in detail and had found that on the basis of order of Consolidation authority khatian was prepared in the year 1964 and nothing had been done thereafter, and hence it cannot be legally held to be a final and conclusive proof of title. Furthermore, the bar created by Section 37 of the Act is only against those suits in which the order of the Consolidation authorities is challenged or is sought to be set aside. But in the instant case no such relief was sought and hence no such bar is applicable to the instant case and the learned courts below were absolutely capable of deciding the question of right, title and interest and in ignoring the said order which was not even passed after following the procedure as laid down in the Evidence Act. 4 7.So far the question of previous partition is concerned, the learned courts below after considering the oral and documentary evidence of both the parties arrived at the concurrent findings of fact that there was no previous partition between the parties as claimed by the defendants and the plaintiffs were able to prove their case with respect to unity of title and possession of the parties over the suit land and hence the plaintiffs were clearly entitled for a decree of partition as claimed by them. 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 CPC. (S.N.Hussain,J.) spal/