IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.18 of 2006 Ramjee Chaubey son of late Yadunandan Choubey, resident of village- Mokari, P.S. Bhabua, P.O. Bhabua, District- Kaimur at Bhabua. …. Defendant-Appellant- Appellant. Versus 1. Smt. Bindu Devi wife of Someshwar Tiwari, resident of village- Machhiyaon, P.S. Bhagawanpur, present- Kaimur ( Bhabua) 2. Smt. Chanda Devi wife of Shri Sachida Nand Misra, resident of village Barahuli, P.S. Sonhan, at present residing in village- Gorhan, P.S. Bhabua, District- Kaimur ( Bhabua) ….Plaintiffs- Respondent 1st Set- Respondent 1st Set. 3. Moosmat Manaki Kuer wife of Late Nawab Tiwari, resident of village- Gorhan, P.S. Bhabua, District- Kaimur ( Bhabua) 4. Smt. Vidya Devi wife of Sidheshwar Pandey, resident of village- Nauhatia, P.S. Bhagawanpur, District- Kaimur ( Bhabua) 5. Smt. Saron Devi wife of Jitendra Pandey, resident of village- Marichaon, P.S. Bhabua, District Kaimur ( Bhabua) 6. Smt. Chandmuni Devi wife of Anil Kumar @ Munna Pandey, resident of village- Amaon, P.S. Chand, District- Kaimur ( Bhabua). …. Defendants 1st Set- Respondents 2nd Set- Respondent 2nd Set. 7. Ram Dular Singh @ Dulli Singh son of Ramkrit Singh, resident of village- Mokari, P.S. Bhabua, District- Kaimur ( Bhabua) 8. Nathuni Pandey son of late Ghurfekan Pandey, resident of village- Gorhan, P.S. Bhabua, District- Kaimur ( Bhabua). …Defendant 2nd Set- Respondents 2nd Set- Respondent 3rd Set. 9. Bachau Tiwari, son of Rajendra Tiwary, resident of village- Tetari, P.S. Chenari, District- Rohtas ( Sasaram).. 10. Sheoloka Devi wife of Nawab Tiwary, resident of village- Gorhan, P.S. Bhabua, District- Kaimur ( Bhabua) 11. Smt. Reena Devi wife of Bhagawat Singh, resident of village- Dumdum, P.S. Bhabua, District- Kaimur ( Bhabua) 12. Heera Singh son of Ramkrit Singh, resident of village- Mokari, P.S. Bhabua, District- Kaimur ( Bhabua) … Defendants- Respondents 4th Set- Respondents 4th Set. ----------- 6/ 07-11-2008 Heard learned counsel for the appellant. 2. This second appeal has been filed by defendant- 2 appellant- appellant against the judgments and decree of both the learned courts below. 3. The matter arises out of Title Suit No. 161 of 1989 which was filed by plaintiffs- respondents- respondents 1st set for partition of their one-third share in the suit property as also for other ancillary reliefs. The said suit was decreed on contest with costs by the learned Munsif, Bhabua vide judgment and decree dated 20. 04.1998 which was challenged by the defendant-appellant in Title Appeal No 69 of 1998 ( 35/04). The said title appeal was dismissed by the learned Additional District Judge-cum- F.T.C. 2, Kaimur vide judgment and decree dated 28.10.2005 which is under challenge in the instant second appeal. 4. Both the learned courts below have considered the entire matter in detail along with the pleadings and evidence adduced by the parties and have come to the specific findings that the property detailed in schedule-Ka was ancestral property whereas the property detailed in Schedule-Kha was the land of late Nawab Tiwary after whose death it devolved upon his heirs, namely, the plaintiffs. It was also found that Saryug Tiwary died after 1945 leaving behind her widow Most. Ramdhari Kuer who became the owner of the property after coming into force of Hindu Succession Act, 1956 whereafter she executed the deed of gift on 26.08.1986 in favour of Bachau Tiwary who came in possession of the said land as exclusive owner thereof as the said transfer was never challenged by any one. It was also found that Sheoloka Devi was not the daughter of Nawab Tiwary, rather she was wife of the brother of Ramdhari kuer, who had no connection with the family of Nawab Tiwary. It was also found that Schedule- Ka 3 property was devolved upon Most. Manki Kuer and her five daughters after the death of their predecessor Nawab Tiwary getting one-sixth share each. 5. The learned courts below after considering the pleadings and evidence of the parties came to the conclusion that no person can execute any sale deed for any property more than his share and it is the responsibility of the purchaser to verify as to whether the vendor had the right to sell the said property. It was also found that for deciding the question of partition the court has to see the title of the persons concerned and for that purpose the court is also bound to see the documents of title, hence although no specific issue with regard to title was framed but in a suit for partition it is the duty of the court to see the aforesaid matter also and the plaintiffs had full cause of action for bringing the suit. 6. The other question raised by learned counsel for the appellant before this Court is that the suit and appeal were barred by the provisions of section 4(1) (c ) of the Bihar Consolidation of Holdings & Prevention of Fragmentation Act, 1956 ( hereinafter called as “the act” for the sake of brevity) but they were illegally entertained by the learned courts below. In that regard it will be pertinent to note that no such plea was taken before the trial court either in the pleadings or in the arguments and no evidence was on record to show that any consolidation proceeding had started or was continuing in the area. It further transpires by the judgment of the learned lower appellate court that the said point of bar of section 4(1) (b ) and 4(i) ( c ) of the said Act was orally pressed by learned counsel for the appellant but there was neither any amendment of the pleadings of the defendants nor any material was produced by the defendant- appellant to 4 show that any consolidation proceeding was started or was continuing in the area. Furthermore, even the sale deeds produced by the defendants did not show that any permission was taken from the consolidation authorities for execution of the said sale deed . Even before this Court no material has been produced to show that consolidation proceeding has been initiated or was continuing in the area in question. In the said circumstances and also in absence of any specific pleading and evidence the learned court below was quite justified in not acceding to the said plea of the defendant- appellant. Considering 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 IXL Rule-11 of the Code of Civil Procedure. B.Tiwary/ ( S. N. Hussain, J )