IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.55 of 2006 …………. 1. BHUDEO MANDAL @ BHUDEO ROY 2. KAILOO MANDAL @ KAILOO ROY, SUKDEO ROY 3. RUPAN MANDAL @ RUPAN ROY 4. MAHADEO MANDAL @ MAHADEO ROY 5. KISHUN MANDAL @ KISHUN ROY ALL SONS OF LATE BASUDEO ROY 6. MUSA DEVI 7. SAKUNO DEVI, BOTH DAUGHTERS OF LATE BASUDEO ROY, All residents of Village Sabour P.S. Sabour District Bhagalpur …….. APPELLANTS Versus 1.MAHENDRA ROY, SON OF LATE GABIB ROY 2.BHADDO ROY 3.PARMESHWARI ROY, BOTH SONS OF LATE BAISHAKHI ROY 4.RAMA DEVI DAUGHTER OF LATE CHATTAN ROY 5.SHANKAR ROY, SON OF LATE CHATTAN ROY 6.NILAM MASOMAT WIDOW OF LATE MUNNA ROY 7.NIRMALA KUMARI 8.ANITA KUMARI 9.SUNITA KUMARI, DAUGHTERS OF LATE MUNNA ROY 10.SONU ROY, SON OF LATE MUNNA ROY, All residents of Village Sabour P.S. Sabour District Bhagalpur ………. RESPONDENTS ----------- 06/ 22.10.2008 Heard learned counsel for the appellants. This second appeal has been filed by defendant- appellant-appellants challenging the judgments and decree of the learned courts below. The matter arises out of Title Suit No. 384 of 1986, which was filed by plaintiff-respondent-respondents for partition of their 2/3rd share in the suit properties and for other ancillary reliefs. The said suit was decreed on contest by the learned Subordinate Judge-III, Bhagalpur, vide judgment and decree dated 25.02.2000, which were challenged by the defendants in Title Appeal No.30 of 2000. The said 2 title appeal was dismissed by the learned Additional District Judge-VII, Bhagalpur, vide judgment and decree dated 06.12.2005, which are under challenge in the instant second appeal. The claims of the plaintiffs were that the suit property belonged to Amrit Mandal, who got the same in partition with his brother Shyam Mandal and after the death of Amrit Mandal, it devolved upon his three sons, namely, Baisakhi Mandal, Khesari Mandal and Basudeo Mandal. The plaintiffs are descendants of Khesari Mandal and Baisakhi Mandal, whereas, defendants are descendants of Basudeo Mandal and hence the plaintiffs had claimed partition of their 2/3rd share, whereas, remaining 1/3rd share belonged to the defendants. These claims of the plaintiffs have been affirmed by both the learned courts below. The first objection of the defendant-appellants is that as the consolidation proceeding had started in the area, the suit was barred under the provision of section 37 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956( hereinafter referred to as `the Act’ for the sake of brevity). The learned courts below have very carefully considered the said point and arrived at the conclusion that the said section of the Act envisages that no civil court shall entertain any suit or application to vary or set aside any decision or order given or passed under the said Act with respect to any matter, for which a proceeding could or ought to have been taken under the Act. It was found that the khatians (Exts. 1 and 1/a) clearly showed that the suit plot measuring 3 kathas was recorded as Makan with Sahan, which 3 does not fall within the category of land described in section 2(ix) of the Act. Furthermore, the said house being a pucca house, the onus was upon the defendants to show that it was homestead of a land owner connected with the agriculture for attracting the provisions of the said Act, but there is no pleading nor any evidence is produced by them to show that the said house with Sahan was in any manner connected with agriculture. In the said circumstances, the learned court of appeal below rightly arrived at the finding that the said land did not fall within the purview of the Act and hence the suit was not barred under section 37 thereof . The other question raised on behalf of defendant- appellants is that the suit property cannot be said to be joint family property as it was the property of Panchawati Devi, which she acquired on the basis of a registered deed of gift dated 06.10.1944 (Ext.`C’) from Basudeo Mandal to whom Baisakhi Mandal and Khesari Mandal had sold their shares for Rs.100.00 by oral sale.So far claim of oral sale by Baisakhi Mandal and Khesari Mandal in favour of Basudeo Mandal is concerned, it has been found by the learned courts below that there are only some oral statements with respect thereto, which have contradicted themselves on the amount of sale and other relevant facts, due to which the said claim of the defendants is difficult to be accepted. Furthermore, in the registered deed of gift executed by Basudeo Mandal in favour of Panchawati Devi also there is no statement that he had purchased the shares of his brothers Basakhi Mandal and Khesari Mandal although it was quite natural and necessary that if he acquired any right or interest 4 by such oral sale he should have mentioned it in the said deed of gift. Hence, the learned courts below have rightly discarded the defendants’ claim of oral sale by Baisakhi Mandal and Khesari Mandal in favour of Basudeo Mandal. Furthermore, the defendants could not even prove that there was any partition between the said three brothers or that any other property, other than the subject matter of the aforesaid deed of gift, was available with other brothers, namely, Baisakhi Mandal and Khesari Mandal. In the said circumstances, the learned courts below rightly held that the suit property was joint family property of Basudeo Mandal, Baisakhi Mandal and Khesari Mandal and the said deed of gift has to be ignored as even if the aforesaid gift is found to be executed by Basudeo Mandal, it will be confined only to the share of Basudeo Mandal, which may be allotted to him or his donee after partititon. Thus, the deed of gift executed by Basudeo Mandal did not affect the title of the co-sharers of the said joint family property, who had unity of title and possession over the suit property. So far land in dispute is concerned, after perusing the entire materials on record as well as claims of the parties, the learned courts below came to the conclusion that from old plot no.1165, new plot no.1148 was created, whereas, from old plot no.1168, new plot no.1151 was created, which fact was quite apparent from the public documents, which were available on record and hence it was rightly held that old plots no.1165 and 1168 were the subject matter of the suit, which belonged to the joint family of the three brothers, namely, Basudeo Mandal, Baisakhi Mandal and Khesari Mandal, out of whom 5 the plaintiffs, who are heirs of Baisakhi Mandal and Khesari Mandal, were entitled to 2/3rrd share, whereas, the defendants, who are the heirs of Basudeo Mandal, were entitled to 1/3rd share in the said suit properties. 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 41 Rule 11 of the Code of Civil Procedure. MPS/ ( S. N. Hussain, J. )