IN THE HIGH COURT OF JUDICATURE AT PATNA S.A. No.431 of 2008 Shital Prasad Singh son of Late Nand Singh resident of Western Railway Gumati, Jagdeo Nagar, Ara, P.S. & P.O. – Nawadah (Ara), District Bhojpur. ……Defendant no.2-Respondent no.5-Appellant. Versus 1. Chandra Prakash Singh son of Late Kesho Pd. Singh 2. Chandreshwar Singh son of Late Kesho Singh 3. Muneshwar Singh son of Late Kesho Singh 4. Most Rohini Devi, widow of Late Kesho Singh 5. Lal Bhadur Singh son of Late Ramanand Singh All residents of Mohalla-Anaith, P.S. Nawadah(Ara), P.O. Ara, District Bhojpur. 6. Dulhin Asha Devi, wife of Mahavir Pd. Singh, resident of Ram Ban, Bumpur, Asansol, at present residing at Mohalla Anaith, Ara, P.S. Nawadah (Ara), District Bhojpur. ….…Plaintiffs-Appellants-Respondents 1st set. 7. Dwarika Singh 8. Ramashray Singh 9. Vidya Sagar Singh All three are sons of Late Rajnath Singh, residents of village Karsar, P.S. Nawa Nagar, District Bhojpur (Now Rohtas), at present, Eastern Railway Gumati, Jagdeo Nagar, Ara, P.S. Anaith, P.S. Nawadah (Ara), District Bhojpur 10. Dulhin Parmila Devi wife of Hari Kishun Singh, resident of village Basawana, P.S. Jagdishpur, District Bhojpur. ……Defendants 1st set-Respondents 1st set-Respondents 2nd set. 11. Dharambir Singh son of Late Ramanand Singh, resident of Mohalla Anaith, Ara, P.S. Nawadah (Ara), District Bhojpur. …..Defendant 2nd set-Respondent 2nd set-Respondent 3rd set. For the appellant : Mr. Sidhendra Narayan Singh, Advocate. For the respondents : None. ----------- 05/ 09.04.2010 Heard learned counsel for the appellant. 2. This second appeal has been filed by defendant no.2- respondent no.5-appellant challenging the judgments and decree of both the courts below. 3. The matter arises out of Title Suit No.139 of 1985 2 which was filed by the plaintiffs-appellants-respondents 1st set for declaring that the suit land was the private Rasta of the plaintiffs and for removal for encroachment made by the defendants thereon as well as for other ancillary reliefs. The said suit was dismissed on contest by Additional Munsif-II, Ara vide his judgment and decree dated 05.10.1996. 4. Against the aforesaid judgment and decree of the trial court the plaintiffs filed Title Appeal No.105 of 1996 which was partly allowed in favour of plaintiff no.3 (appellant no.6 of the lower appellate court), but with respect to the remaining plaintiffs (appellant nos.1 to 5) the said appeal was dismissed by the Additional District Judge-cum-Fast Track Court No.II, Bhojpur vide his judgment and decree dated 28.07.2008 holding that appellant nos.1 to 5 had no right on 10 feet Rasta which was private Rasta of defendant nos.1 and 2 namely Rajnath Singh and Sital Prasad Singh. 5. Against the aforesaid judgment and decree of the court of appeal below the plaintiffs did not file any second appeal, but one of the defendants, namely defendant no.2 Sital Prasad Singh filed this second appeal against that part of the order of court of appeal below by which it was held that 10 feet Rasta involved in the suit was private Rasta of defendant nos.1 and 2 both, namely Rajnath Singh and Sital Prasad Singh. 6. Learned counsel for the sole appellant Sital Prasad Singh states that the said Rasta is his exclusive private Rasta and 3 Rajnath Singh or any other person had no concern with it. Hence the aforesaid finding was illegal, arbitrary and perverse and has to be reversed, as the suit having been filed by the plaintiffs for declaration of his title and the plaintiffs’ claim having been rejected there was no occasion for making any observations with regard to the title of defendants, which was not in issue. 7. Considering the averments made by learned counsel for the appellant as well as the materials on record, including the judgments and decree of both the courts below, it is quite apparent that the matter mentioned above had been considered by the trial court also which after due consideration of the material on record and the pleadings and evidence of the parties had come to the conclusion that the suit land was not the private Rasta of the plaintiffs, rather it belonged to defendant nos.1 and 2 who were in possession of the said land according to their purchase and had not made any encroachment. Hence, the aforesaid issue was decided in favour of defendant nos.1 and 2. 8. The said judgment and decree of the trial court clearly showed that the suit land was declared to belong to defendant nos.1 and 2 both, but the appellant of the second appeal who was defendant no.2 in the suit never challenged the said finding of the trial court, nor he filed any appeal against it, nor even he filed any cross appeal in the title appeal filed by the plaintiffs against the judgment and decree of the trial court. 9. Now only after the judgment and decree has been 4 passed by the lower appellate court in the title appeal filed by the plaintiffs, the instant second appeal has been filed by defendant no.2. It is quite apparent that the findings of the trial court have merely been affirmed by the court of appeal below on the basis of the pleadings and evidence of the parties, which does not appear to be wrong or bad. 10. In the aforesaid facts and circumstances, this court does not find any illegality in the impugned judgments and decree of the 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. harish/ ( S. N. Hussain, J. )