IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.292 of 2004 MAHENDRA PRASAD GUPTA Versus RAM KHELAWAN MAHTON & ORS ----------- 5/ 28-07-2008 Heard learned counsel for the appellant. 2. This second appeal arises out of Title Suit No. 188 of 1988 which was filed by the plaintiff-appellant-appellant for declaration of title and recovery of possession with respect to the land in suit, detailed in Schedule-C of the plaint, and for other ancillary reliefs. 3. The said suit was dismissed by the learned Munsif 2nd Court , Begusarai vide judgment and decree dated 14.5.1999 which was challenged by the plaintiff- appellant in Title Appeal No. 15 of 1999 ( 02 of 2000) which was also dismissed by the learned Additional District Judge-VI, Begusarai. Against the aforesaid judgments and decree of the learned courts below the instant second appeal has been filed by the plaintiff-appellant- appellant. 4. From perusal of the judgments and decree in question as well as the materials on record and the averments made by appellant it is quite apparent that the plaintiff had placed much reliance upon his Exhibit-9 which is the judgment of Title Suit No. 14 of 1921 filed by the plaintiff with respect to some mortgage and which was decreed by the trial court and the said decree was affirmed by the higher courts, but the said document itself disproves the plaintiff’s claim that Surji predeceased her father Shiv Sahai Parakhiya as the said judgment clearly shows that Santokhia ( the predecessor in 2 interest of the plaintiff) had herself claimed in that suit that Shri Shiv Sahai Parakhia left behind two daughters, namely, Surji ( predecessor in interest of defendants) and Santokhia ( predecessor in interest of the plaintiff). In the said circumstances the learned courts below rightly held that both daughters inherited jointly after their father’s death and hence possession of even one co-sharer would be deemed to be possession of the other co-sharer , unless plea of ouster was made and established but instead of making plea of ouster, the plaintiff in the instant case made out a case that Surji predeceased her father and hence Surji or her sons did not inherit. In the light of the aforesaid facts the learned courts below rightly came to the conclusion that Surji died after her father and she inherited along with her sister, Santokhia, the property left by her father Shiv Sahai Parakhia and hence Santhokhia had no right to make the gift dated 13.9.1924 ( Ext.2A) of entire property left by her father. 5. So far as the decision passed in Title Suit No. 14 of 1921 is concerned, it has been held by the learned courts blow that the question as to whether Surji inherited the property left by her father or not was not an issue in that suit, in which the only issues were that whether Beni Parakhia who was brother of Shiv Sayai Parakhia, had any right in respect of any of the property left by Shiv Sahai Parakhia and whether Parsi Mahton acquired any interest only on the basis of mortgage in his favour and Beni Parakhia acquired any interest in the inheritance of Shiv Sahai Parakhia and whether Shiv Sahai Parakhia died in jointness with his brother being adopted in the family of Beni 3 Parakhia. The court decided the said suit against Parsi Mahton and others holding that Beni Parakhia and others did not acquire any interest in inheritance of Shiv Sahai Parakhia . However, there was neither any finding nor any claim in that case that Surji did not acquire any interest, right or title in the suit property after the death of her father.. 6. The learned courts below also found that the documents in favour of defendants were in continuity since sale by the registered document dated 10.08.1939 ( Exhibit-P6) by the sons of Surji in favour of Bibi Safikan and exclusive dealing with the suit property by Mostt. Safikan and after the sale by her purchaser Sita Devi as well as by the subsequent purchaser, namely, the defendants and their family members were fully proved by the corroborating evidence about possession including the decree of Title Suit No. 44 of 1960 and delivery of possession effected in the suit in favour of Sita Devi and thereafter possession of the defendants by purchase from her. Hence, it has been held by the learned courts below that the defendants- respondents acquired title and possession over the suit property on the basis of registered sale deed dated 10.08.1939 and the subsequent deeds following the said deed. It was also found that the plaintiff did not acquire any title or possession over the suit property on the basis of the deed of gift ( Ext.2) executed by Santokhia or on the basis of any other document following the said deed nor the plaintiff ever acquired possession of the suit property on the basis of the said deeds. It was also held that the story of possession and 4 dispossession as propounded by the plaintiff was not proved whereas the defendants were admittedly in possession of the suit land and they had proved continuity of their possession since decades. In the aforesaid facts and circumstances the judgments and decree of the learned courts below are covered by finding of facts and this Court does not find any illegality in the same. Furthermore, no substantial question of law is made out in the instant second appeal, which is accordingly dismissed. B.Tiwary/ (S.N. Hussain, J.)