IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.452 of 2011 ====================================================== 1. Ram Ekbal Mahto @ Satyadeo Mahto . 2. Ram Kripal Mahto. 3. Nepal Mahto. 4. Ram Das Mahto. All Sons of Late Sri Kishun Mahto, Resident of Village- Parsagarh Pargana Bal, P.S.- Ekma, District- Saran- Plaintiffs/Appellants/Appellant/s Versus 1. (a) Gaura Devi , W/o Sugri Prasad, Resident of Village- Gauri Shankar ke Bangra, P.S.- Jalalpur, District- Saran. (b) Soniya Devi, W/o Jagarnath Prasad, Resident of Village and P.O. Anwal Bhaya Kopa, P.S.- Kopa, District- Saran. 2. Mostt. Urmila Kuer, Widow of Budhdeo Pandey(deceased) 3. Brij Kishore Pandey. 4. Chhote Lal Pandey. 5. Ballu Pandey . 6. Bikah Pandey. All Minor sons of Budhdeo Pandey (deceased)through Mostt. Urmila Kuer mother and guardian. 7. Chuni @ Rubi Kumari, daughter of Budhdeo Pandey(deceased)through Most. Urmila Kuer mother and guardian. All resident of village-Deopur, P.S.- Raghunathpur, District-Saran. 8. Lal Babu Tiwary. 9. Sailendra Kumar Tiwary. 10. Sharda Devi W/o Lal Babu Tiwary. 11. Mahajan Mahto, Son of Ramdhari Mahto(deceased). All resident of village- Parsagarh Pargana Bai, P.S.- Ekma, District- Saran. Defendants/Respondents/Respondents. ====================================================== Appearance : For the Appellant/s : Mr. Shanti Kumar, Adv. Mr.Dhananjay Kumar Tiwary For the Respondent/s : Mr. Rajendra Narayan, Sr.Adv. Mr. Shashi Shekhar Tiwary.,Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE V. NATH ORAL ORDER 3 19-04-2012 Heard the learned counsel appearing on behalf of the appellants as well as the learned counsel appearing on behalf of the respondent nos. 8 to 11. 2. The plaintiffs are the appellants in this second appeal against Patna High Court SA No.452 of 2011 (3) dt.19-04-2012 2 / 3 2 the judgment and decree of affirmance. The suit has been filed seeking partition after annulling the transfer by sale made by the defendant no.1. There is no dispute that defendant no.1 was the father of the plaintiffs. However, the plaintiffs challenged the alienation made by defendant no. 1 in favour of defendant no.2 stating that their father (defendant no.1) was in bad habit of intoxication which led to the execution of the sale deed in question. Further the alienation had also been assailed for want of legal necessity. It was also the case of the plaintiffs that there had already been partition long back ago and therefore there was no occasion for defendant no.1 to sell the same. The defendant no.1 did not appear in the suit which was, however, contested by the purchasers. 3. Both the courts below have come to the finding that the plaintiffs could not establish the case as pleaded in the plaint. It has also been held that the sale deed has been executed in the year 1976 but the suit was filed in the year 1991 seeking relief against the said document and was barred under the provisions of the limitation Act. 4. Learned counsel appearing on behalf of the appellants has made only one submission to the effect that as the defendant no.1 did not appear to contest the allegations made by the plaintiffs, therefore both the courts below have committed error in law in not straightway granting the decree to the plaintiff as prayed. It has been Patna High Court SA No.452 of 2011 (3) dt.19-04-2012 3 / 3 3 urged by the learned counsel that it was for the defendant no.1 to deny the specific allegations which were personal or relating to his own family and his transferees were not competent to deny the assertions. 5. From the judgments of both the courts below, it is evident that the defendant no.1 had not appeared and contested the suit. However, it is also evident that the defendant no.1 had already alienated part of the suit property in favour of defendant no.2 who also alienated those purchased properties in favour of other defendants and therefore in view of those facts the defendant no.1 at least had no interest left with regard to the properties which he had sold. Moreover, the findings of fact recorded by both the courts below are on the basis of appreciation of evidence led by the parties and no perversity in the same could be established. There is no force in the submission on behalf of the plaintiff that as the defendant no.1 did not choose to appear therefore they became entitled to the decree straightway. 6. There is no substantial question of law arising for consideration in this appeal, which is, accordingly, dismissed. Nitesh/- (V. Nath, J)