IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.260 of 2007 Smt Ali Bandi Wife of LateMd Usman resident of Mauza Othanpur Pargana Gowa P.S. Marhowrah Dist. Saran Defendant - Appellant- Appellant Versus 1. Mohd. Sabir Ahmad 2. Soyab Ahmad 3. Gufran Ahmad All sons of Late Abdul Ahmad 4. Saratul Fatima w/o Jainuddin 5. Md Mustakim son of Md Mustafa 6. Md Sonu son of Md Mustakim 7. Shabhana Parveen @ Sobhana Parveen D/o Late Abdul Ahad 8. Saiyada Khatoon W/o Late Abdul Ahad All resident of Village Othanpur Pargana Gowa P.S. Marhowrah Dist. Saran (Chapra) Plaintiffs-Respondents-Respondents 9. Smt Shahnaz Bano w/o Ghoora Mian 10. Smt Asmat Parveen W/o Ali Ahmad 11. Praveen Bano w/o Ansar Ahmad 12. Most Nanhi Begum w/o late Ali Imama 13. Gulam Imama 14. Raja Imam 15. Asaraf Imam 16. Suman Khatoon w/o Ali Imam All sons and daughter of Ali Imam Dahiawa tola PO/PS Chapra Dist. Saran 17. Fazal Imam s/o late Hasan Imam 18. Tobassum Parveen 19. Talat Paween 20. Nasuma Parveen @Nasuma Praveen All D/o Late Hasan Imam 21 Bibi Safina @ Bibi Safina w/o Asaf Hussain 22. Bibi Halima w/o Bakar Hussain & D/o Md Wasi All resident of Mohalla Dahiyawan P.S. Chapra Town Dist. Saran Defendants - Respondents-Respondents ----------------------- For the appellant: Mr Manoj Kumar, Advocate ------------------- 08/ 08.02.2010 Heard learned counsel for the appellant. 2. This second appeal has been filed by defendant - appellant-appellant challenging the judgments and decree of both the learned courts below. 3. The matter arises out of Partition Suit no.216 of 2 1985 which was filed by the plaintiffs-respondents-respondents Ist set for partition of their share in the suit property along with other ancillary reliefs claiming that Sah Moinuddin was the common ancestor of the parties and was also recorded tenant with respect to the suit property. The said suit was decreed on contest by the learned Subordinate Judge VI, Chapra vide his judgment and decree dated 27.05.2000. 4. Against the aforesaid judgment and decree of the trial court, defendant-appellant filed Title Appeal no.46 of 2000 which was dismissed by the learned Additional District Judge-cum- Fast Track Court no. V, Saran, vide his judgment and decree dated 20.08.2007. Against the aforesaid judgments and decree of the learned courts below, the instant second appeal has been filed. 5. Although learned counsel for the defendant- appellant vehemently challenges the judgments and decree of the learned courts below but from perusal of the materials on record including the impugned judgments and decree of the learned courts below, it is quite apparent that the suit property was recorded in the revisional survey Khatiyan in the names of the plaintiffs and the said document was not rebutted by the defendant by any cogent and valid material. So far the claim of the defendant that the suit property was jointly held by the aforesaid Sah Moinuddin along with Safdar Hussain who was his brother is concerned, it was not proved by any material whatsoever and the learned courts below were justified in coming to the conclusion that Sah Moinuddin was exclusive owner of the suit property and Safdar Hussain had no right, title or interest therein. 3 6. So far the question raised by the defendant-appellant that Safdar Hussain had made an oral HEBA with respect to the suit land in favour of Imam Bandi is concerned, it was also not validly proved and in any view of the matter Safdar Hussain having no right, title or interest in the suit property could not legally make any such gift in favour of anyone. Furthermore, there is no material to show that Sah Moinuddin ever made any oral gift in favour of both his wives nor there is any material to show that there was any previous partition between the families. In the said circumstances the learned courts below were justified in coming to the conclusion that there is unity of title and possession between the heirs of Sah Moinuddin including the plaintiffs who was fully entitled to a share in the suit property to the extent of 23/96. 7. 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. (S.N.Hussain,J) shahid