IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.102 of 2005 Osihar Singh son of late Bishundeo Singh, resident of village- and P.O. Tarwana, Pargana Bara, P.S. Gautambudh Nagar, Dist. Siwan. …Defendant no.1- Respondent no.1- Appellant. Versus 1. Satya Narayan Giri son of late Ram Sagar Giri 2. Smt. Kishori wife of Satya Narayan Giri. Both resident of village Tarwana, Pargana Bara, P.O. and P.S. Tanwara, Gautam Budh Nagar, District- Siwan. Plaintiffs- Respondents- Respondent 1st Set. 3. Jay Narayan Giri son of late Ram Sagar Giri 4. Bhagwan Giri son of Sheo Ratan Giri 5. Smt. Janki Devi wife of Bhawan Giri 6. Shri Kant Giri. 7. Raghav Giri. Sl.no.6 and 7, sons of Bhagwan Giri. All residents of village and P.O. Tarwera, Police Station Gautam Budh Nagar, District- Siwan. ….Defendants- Respondents- Respondents 2nd Set. ----------- For the Appellant: M/S Raghav Prasad & Maheshwar Prasad, Advocates. For the Respondents : None. --------- 4/ 22-12-2008 Heard learned counsel for the appellant. 2. This second appeal has been filed by defendant no.1- respondent no.1- appellant against the judgment and decree of the learned court of appeal below. 3. The matter arises out of Title Suit No.90 of 1986 which was filed by plaintiffs- appellant- respondents 1st set simply for partition of the suit land and for other ancillary reliefs. 4. The said suit was dismissed on contest with cost by the learned Subordinate Judge-7, Siwan vide judgment and decree dated 23.09.1998. The said judgment and decree of the learned trial court was challenged by the plaintiffs in Title Appeal No.127 of 1998 which was - 2 - allowed on contest without cost by the learned Additional District and Sessions Judge- 6, Siwan by his judgment and decree dated 17.02.2005. The said judgments and decree of the learned courts below are under challenge in the instant second appeal. 5. From the averments as well as from the materials on record it is quite apparent that admittedly the plot in dispute was the ancestral property and hence the learned court of appeal below was quite justified in holding that the presumption will be that the suit property was joint unless it was rebutted by good and cogent evidence by the defendants who are claiming previous partition. The learned lower appellate court very carefully considered the evidence of the parties and also relied upon the decision of this Court in the case of Sonilal Jha and others vs. Darpadeo Narain Singh, reported in A.I.R. 1935 Patna- 167 ( Full Bench ) in which it was held that the statement of boundaries in documents of title between third parties are not admissible under the Evidence Act which ruling was squarely applicable in the present case with regard to Exts. A/5 to A/7 which were between third party. With regard to Exts. 1 to 4 it was also found that in the said deeds boundaries were not mentioned in the name of any share- holder. Hence after considering the evidence the learned court below arrived at definite finding that there was no previous partition and the plot in dispute was still joint. 6. So far the second question in issue with regard to distribution of share is concerned the learned court of appeal below also considered the matter in detail and found that the plot in dispute was still joint but the equal share had been mutually held by each person having ¼ - 3 - share thereon and hence the plaintiffs had got ¾ share whereas Jai Narain had ¼ share, where-after Jain Narain and Satya Narain transferred their share of 1 katha land to Bhagwat Giri and plaintiff no.2, Kishori Devi transferred 11 dhur land in favour of defendant no.1 which she got by gift deed of Panna Kuar and the remaining share of Prabhawati was purchased by the plaintiff by sale deed dated 05.02.1983 which was under his ownership. 7. In the said circumstances this Court finds that the said judgment of learned court of appeal is fully covered by finding of facts arrived at by the final court of fact. Furthermore, this Court does not find any illegality in the impugned judgment and decree of the learned court of appeal below nor does it find any substantial question of law involved in the instant second appeal, which is thus dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. B.Tiwary/ (S.N Hussain,J)