IN THE HIGH COURT OF JUDICATURE AT PATNA S.A. No.36 of 2006 1. Raghow Thakur @ Ragho Thakur 2. Pundeo Thakur 3. Ram Ekbal Thakur All sons of late Rambilas Thakur, resident of Dhaka Tola Chainpur, P.S. Dhaka, P.O. Dhaka, District East Champaran. 4. Ramrazia, wife of Sukhal Thakur, and daughter of Ram BilashThakur, deceased present resident of Dhaka Tola Chainpur, P.O. & P.S. Dhaka, District East Champaran. 5. Rajpati Devi, wife of Babu Ram Thakur, and daughter of Rambilash Thakur, present resident of Dhaka Tola Chainpur, P.O. & P.S. Dhaka, District East Champaran. …….Plaintiffs-Appellants-Appellants. Versus 1(a) Ram Lal Thakur 1(b) Ram Swarath Thakur Both sons of Banwari Thakur @ Baswan Thakur 2. Janki Thakur 3. Jialal Thakur s/o Jageshwar Thakur 4. Chulhai Thakur, s/o Jageshwar Thakur resident of village Dhaka Chapra, P.O. & P.S. Dhaka, District East Champaran ….Defendants 1st party-Respondents 1st party- Respondents 1st Party 4(ka)(a) Badru Hashan 4(ka)(b) Kamru Hashan 4(ka)(c) Sakil 4(ka)(d) Jamil sons of Late Md. Habib Mian 4(kha) Rafique Mian s/o Bholajan Mian 4(Ga)(a) Bibi Sarfun Nesha, D/o Late Safique Mian 4(Ga)(b) SK. Salahudin, S/o Late Safique Mian 4(Ga)(c) Sk.Tipu, S/o Late Safique Mian resident of village Chainpur Dhaka, PO. & P.S. Dhaka, District East Champaran. 5(ka) Bhikhari Thakur 5(kha) Gopal Thakur Both sons of Late Achelal Thakur resident of village Chainpur Dhaka Topa Nonuar, P.S. & P.O. Dhaka, District East Chamapran. ….Defendants 2nd party-Respondents 2nd party- Respondents 2nd party 6(a) Munna Ansari, S/o Late Sahebjan Mian 6(b) Kashim Ansari, S/o Late Sahebjan Mian 6(c) Wajira Khatoon, W/o Late Sahebjan Mian 7(a) Mazhar Ansari 7(b) Sanaullah Ansari 7(c) Ramjan Mian 2 resident of village Dhaka Chainpur, P.O. & P.S. Dhaka, District East Champaran. 8(i) Lalan Ram 8(ii) Upendra Ram 8(iii) Baban Ram 8(iv) Raghuvansh Ram Sons of Late Bharat Paswan, resident of village Dhaka Tola, Ramchandra, P.O. & P.S. Dhaka, District East Champaran. …Defendants 3rd party-Respondents 3rd party- Respondents 3rd party For the appellants :Mr.S.S.Dwivedi, Sr.Advocate with Mr. Amar Nath Singh, Advocate. For respondent nos. 1(a), 1(b) and 2 : M/s Uma Kant Shukla and Rajesh Ranjan No.1, Advocates. For respondent no.5(ka) : M/s Sharda Nand Mishra, Gaurav Kumar and Alok Kumar, Advocates. For the remaining respondents : None. ----------- 08/ 04.05.2010 Heard learned counsel for the appellants and learned counsel for respondent nos.1(a), 1(b), 2 and 5(ka). 2. This second appeal has been filed by plaintiffs- appellants-appellants challenging the judgments and decree of both the courts below. 3. The matter arises out of Title Suit No.137 of 1990 which was filed by the plaintiffs-appellants for partition of their moiety share in the suit property and for other ancillary reliefs. The said suit was dismissed on contest by Subordinate Judge-I, Motihari vide his judgment and decree dated 11.07.1990. 4. Against the said judgment and decree of the trial court plaintiffs-appellants filed Title Appeal No.16 of 1997 (48/2002) which was also dismissed on contest by Additional District Judge-I, East Champaran vide his judgment and decree 3 dated 18.11.2005. Against the aforesaid judgments and decree of the courts below the instant second appeal has been filed. 5. Although learned counsel for the appellants vehemently challenges the aforesaid judgments and decree of the courts below, but it is not in dispute that Nakched Thakur had three sons and the suit property along with other properties were the joint family property. However, the courts below after very careful consideration of the pleadings and evidence of the parties came to a definite conclusion that the plaintiff’s ancestor Budhan Thakur was excluded from the joint family much earlier as per his own wish as he had gone to Nepal, which was proved by Exts.G, I and I/3 and also by independent transactions and dealings of the remaining branch of the family of Nakched Thakur to the full knowledge of Banslochan Thakur, Budhan Thakur and the plaintiffs, but in spite of that neither the plaintiffs nor their ancestors ever challenged the said transfers. 6. It was also found that the ancestor of the plaintiffs, namely, Budhan Thakur after his return from Nepal made attempt to get a share in the suit property whereafter the matter was referred to the Panchayat which found that he was not entitled to any share and the said finding was affirmed and admitted by the said Budhan Thakur in the year 1910. Thereafter also he made an attempt to get his name recorded in the Revisional Survey Record of Right, but his claim was rejected by the authorities as far back as in the year 1915-1916. This was the last attempt of Budhan 4 Thakur and after several decades the plaintiffs had again raised the said dispute in the year 1990 by filing the aforesaid suit. 7. The Courts below also considered the question of ouster and joint possession raised by the plaintiffs and thereafter came to the specific conclusion that there was sufficient material including the conduct of the plaintiffs and their ancestors to show that the plaintiffs’ ancestor Budhan Thakur had been excluded from the joint family and hence there was no question of any joint possession. 8. 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. )