IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.250 of 2008 With C.R. No.1248 of 2008 ***** In S.A. No.250 of 2008: 1. Sarbjit Rai 2. Bachandeo Rai 3. Sanjay Kumar Rai 4. Bipin Bihari Rai 5. Bacha Ram Nayad. All 2 to 5 are minor and sons of Sarbjit Rai and under the guardianship of Sarbjit Rai, resident of village- Bhatwalia, P.S. Ramgaih, District- Kaimur, Bhabhua. …..Plaintiffs…Appellants…..Appellants. Versus 1. Uday Narayan Rai, son of Murat Rai. 2. Chandra Bhushan Rai, son of Uday Narayan Rai. 3. Shashi Bhusan Rai (Minor), sons of Uday Narain Rai, under the Guardianship of Uday Narayan Rai. 4. Most. Targana Kuer, wife of late Murat Rai. No.1 to 4 are residents of village- Bhatawalia, P.S. Ramgarh, District- Kaimur at Bhabhua. ……Defendant 2nd set. 5. Ram Pukar Rai, son of Jagardip Rai, resident of village- Bhatawalia, P.S. Ramgarh, District- Kaimur (Bhabhua). …Defendant…Respondent 2nd set. 6. Chaturi Singh, son of Deo Nandan Singh, resident of Village- Nawan, P.S. Ramgarh, District- Kaimur (Bhabhua). 7. Asha Rai, son of Suchit Rai, resident of Village- Bhatawalia, P.S. Ramgarh, District- Bhabhua. ……Defendants…..Respondents. In C.R. No.1248 of 2008: 1. Sarbjit Rai, son of late Mandip Rai. 2. Bachandeo Rai 3. Sanjay Kumar Rai 4. Bipin Bihari Rai 5. Bacha Nam Nayad All 2 to 5 are minors and sons of Sarbjit Rai and under the guardianship of father Sarbjit Rai, resident of village- Bhatwalia, P.S. Ramgarh, District- Kaimur. …..Plaintiff-Appellants- Applicants- Petitioners. Versus 1. Uday Narayan Rai , son of Murat Rai 2. Chandra Bhausan Rai, son of Uday Narayan Rai 3. Shashi Bhuasan Rai (minor), son of Uday Narayan Rai, under the guardianship of his father namely, Uday Narayan Rai. 4. Most. Tarangana Kuer, wife of late Murat Rai. All 1 to 4 are residents of village- Bhatawalia, P.S. Ramgarh, District- Kaimur. …..Defendant 1st set-Respondent- opp.party 5. Rampukar Rai, son of Jagardip Rai, resident of village- Bhatawalia, P.S. Ramgarh, District-Kaimur. ….Defendant-Respondent Opp. Party.Opp. Party 2nd set. 2 6. Chaturi Singh, son of Deo Nandan Singh, resident of village- Nuwan, P.S. Ramgarh, District- Kaimur, Bhabhua. 7. Asha Rai, son of Suchit Rai, resident of village- Bhatawalia, P.S. Ramgarh, District- Kaimur. …..Defendant- respondent opp. parties- Opposite parties. ----------- 09- 3.11.2011 Heard Mr. Arbind Nath Pandey for the appellants. The plaintiffs of Title Suit No.3 of 1991/97 of 1993 are before us, and challenge the judgment and decree passed by the learned court of appeal below in Title Appeal No.95 of 1994/74 of 2006, and also challenge the validity of the order dated 31.3.2008, passed by the learned court of appeal below in Misc. Appeal No.1 of 2000, arising out of their application under section 4 of the Partition Act. 2. A brief statement of facts essential for the disposal of these two proceedings may be indicated. Facts of S.A. No.250 of 2008: 2.1) The appellants/petitioners before us instituted the aforesaid Title Suit No.3 of 1991/97 of 1993, claiming 1/3rd share each in the properties situate at Ghatawalia, Mohania, and Buxar. The learned trial court on contest decreed the suit in so far as the suit property at Ghatawalia is concerned. The suit was dismissed with respect to the properties situate at Mohania and Buxar. The plaintiffs preferred the aforesaid Title Appeal No.95 of 1994/74 of 2006, which was decreed in part. The suit 3 properties situated at Mohania were decreed to the extent of 1/3rd share, and the appeal was dismissed in so far as the suit properties situate at Buxar are concerned, by the impugned judgment dated 31.3.2008. Hence the present second appeal at the instance of the plaintiffs for declaration of 1/3rd share with respect to the properties situate at Buxar. Facts of C.R. No.1248 of 2008: 2.2) After disposal of the suit, and during the pendency of the title appeal, the defendants alienated the entire residential building situate at Ghatawalia in favour of Asha Rai, a stranger. The plaintiffs filed an application under section 4 of the Partitition Act before the learned court of appeal below, which was registered as Misc. Case No.1 of 2000 stating therein that their 1/3rd share in the residential house had also been alienated by the defendants in favour of Asha Rai and both of them should be directed to re-convey the dwelling house in favour of the plaintiffs on payment of the consideration money. By order dated 13.9.1996 (Annexure-1 to the civil revision application), the application under section 4 was disposed of and the vendor and the vendee were directed to re-convey the right, title, and interest in the residential house at Ghatawalia in favour of the plaintiffs. They challenged the same by preferring C.R. 4 No.1879 of 1996, before this Court which was allowed by a learned Single Judge of this Court by judgment and order dated 21.5.1999 (Annexure-2 to C.R. No.1248 of 2008), the said order dated 13.9.1996 was set aside, and the matter was remitted to the learned court of appeal below with the following direction: “11. I, therefore, set aside part of the impugned order, whereby the court below held the property in question to be a dwelling house and remit the case to the court of appeal below to ask the parties to lead evidence and then decide the application under section 4 of the Partition Act afresh on its own merit and in accordance with law.” The learned court of appeal below passed the order dated 15.6.2001 (Annexure-3), whereby a Pleader Commissioner was appointed. The plaintiffs challenged the same by preferring C.R. No.1578 of 2001 which was allowed by a learned Single Judge by order dated 27.6.2002 (Annexure-4 to C.R. No.1248 of 2008), whereby the said order dated 15.6.2001 was set aside on the ground that the learned court of appeal below has committed jurisdictional error in allowing the prayer of opposite parties for appointment of Pleader Commissioner at such a belated stage. After consideration of the entire matter, the learned court of appeal below has rejected the application of the 5 plaintiffs under section 4 of the Partition Act. Hence this civil revision application at the instance of the plaintiffs. 3. We have perused the materials on record and considered the submissions of the learned counsel for the plaintiffs (appellants/petitioners herein). They raise a grievance before this Court that the learned court of appeal below has erred in dismissing their appeal in so far as the suit property at Buxar is concerned. It appears to us on a perusal of the materials on record that the learned court of appeal below has recorded concurrent findings of facts that the suit property situate at Buxar is not a joint family property and, therefore, the plaintiffs are not entitled to 1/3rd share of the suit property at Buxar. Being a concurrent finding of fact it binds this Court in second appellate jurisdiction. Second Appeal no.250 of 2008 is accordingly dismissed. 4. In so far as civil revision application is concerned, learned counsel for the petitioners submits that the learned court of appeal below has committed an error of record by mis-stating the plot of land on which the residential house is situate. It appears to us on a perusal of the materials on record that the learned court of appeal below has not committed any error on record in so far as this aspect of the matter is concerned. He has examined the entire materials on 6 record and come to the aforesaid conclusion. This Court in exercise of limited jurisdiction conferred on it by section 115 of the Code of Civil Procedure is reluctant to examine the evidence on record. Secondly, the plaintiffs completely overlooked the judgment and decree of the learned court of appeal below that the suit had been decreed in so far as the property at Ghatwalia is concerned, that the plaintiffs are entitled to 1/3rd share of the property situate at Ghatwalia. There is no finding that the plaintiffs are entitled to 1/3rd share in the residential house. In other words, it becomes a matter of Takhtabandi which is basically an issue of facts. The learned trial court has, therefore, passed an order rejecting the application under section 4 of the Partition Act. The plaintiffs would be entitled to adjustment and allotment of shares in the suit property at Ghatwalia. We do not find any merit in this civil revision application. Civil Revision No.1248 of 2008 is dismissed. 5. In the result Second Appeal No.250 of 2008 and Civil Revision No.1248 of 2008 are dismissed. In the circumstances of the case, there shall be no order as to costs. (S K Katriar, J.) S.K.Pathak/