IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.325 of 2001 ------ 1. Jai Kant Mandal son of Late Parsuram Mandal. 2. Ram Ratan Mandal son of Keshab Kant Mandal 3. Murlidhar Mandal son of Kamleshwari Mandal All residents of village Khanpur, P.S. Pirpainti, District Bhagalpur. Plaintiffs-Appellants-Appellants. Versus 1. Bishwanath Rai son of Sobran Rai. 2. Ram Prabesh Roy son of Late Ram Sakal Rai. 3. Nunu Rai son of Radha Krishna Rai. 4. Gopal Rai son of Ram Prabesh Roy. 5. Chanchal Rai son of Bishwanath Rai. 6. Radha Mohan Roy. 7. Hari Raj Roy both sons of Ramadhin Roy. 8. Bhagwan Roy. 9. Surendra Roy. 10. Jogendra Roy all sons of Hari Raj Roy. 11. Bhola Roy son of Baijnath Roy. 12. Sumitra Devi widow of Late Jitendra Roy. 13. Rina Kumari. 14. Jhatali Kumari. Both minor daughters of Late Jitendra Roy. 15. Rahul Kumar minor son of Late Jitendra Rai Nos. 13 to 15 minors under the guardianship of their mother Sumitra Devi, mother guardian and next friend. 16. Smt. Jadubanshi Devi wife of Late Radha Rai. 17. Smt. Indrawati Devi wife of Late Kishun Rai. 18. Smt. Saraswati Devi. 19. Smt. Sabitri Devi. 20. Smt. Sarli Devi. 21. Kiran Devi all daughters of Late Radha Kishun Rai. 22. Most. Sundrawati Devi widow of Late Baijnath Rai All residents of village Mossandpur, P.S. Pirpainty, P.O. Mathurapur, District Bhagalpur --- Defendants Ist Party-Respondents Ist Party- Respondents Ist Party. 23. Dindayal Mandal @ Bindhyachal Mandal. 24. Ram Prit Mandal. 25. Keshab Mandal all sons of Late Bishan Mandal 26. Kamleshwari Mandal son of Dayali Mandal. 27. Jai Ram Mandal son of Ram Prit Mandal. All residents of village Khanpur, P.S. Pirpainty Anchal Pirpainty, P.O. Mathurapur District Bhagalpur - Defendants 2nd Party- Respondents 2nd Party-Respodnents 2nd Party. ----------- For the appellants : Mr. Manoj Kumar Sinha, Advocate For the respondents : None ------- - 2 - 06. 21.01.2009 Heard learned counsel for the appellants. 2. This second appeal has been filed by the plaintiffs- appellants-appellants against the judgments and decree of both the learned courts below. 3. The matter arises out of Title Suit No.69 of 1987 which was filed by the appellant for declaration of title and other ancillary reliefs. The said suit was decided on the preliminary issue of res judicata and was dismissed by the learned Subordinate Judge III, Bhagalpur on contest with cost by judgment and decree dated 17.01.1996. 4. Against the aforesaid judgment and decree of the learned trial court, the plaintiffs filed Title Appeal No.25 of 1996 which was dismissed by learned Additional District Judge VII, Bhagalpur, by his judgment and decree dated 14.08.2001 affirming the judgment and decree of the learned trial court. The said judgments and decree of both the learned courts below have been challenged in the instant second appeal. 5. It is an admitted fact that Ghana Mandal was the ancestor of the plaintiffs and Sobran Rai was the ancestor of the defendant Ist Party and that Money Execution Case No.128 of 1937 was filed by Sobran Rai against Ghana Mandal, whereafter the said land was auction sold in the said execution case and sale certificate was signed on 27.8.1938 and delivery of possession was effected on 07.11.1938. These facts were supported by documents which were more than 55 years old. - 3 - 6. It further transpires that thereafter sons of Ghana Mandal filed Title Suit No.100 of 1939 and when it was dismissed for default, they filed Miscellaneous Case No.500 of 1940 for restoration of the said suit, but the Miscellaneous Case was also dismissed. Subsequently, the successor of Ghana Mandal, namely the father of plaintiffs filed Title Suit No.100 of 1976 which was dismissed by the learned 06th Additional Subordinate Judge, Bhagalpur as res judicata by his judgment and decree dated 29.08.1978, but the said judgment and decree was never challenged. 7. Although the appellants have raised a point that the interest of their father was adverse to their interest and hence the said earlier suit was collusive as they were minors at that time, but the said claim cannot be validly relied upon as there was nothing to show that how the interest of the father was adverse and in any view of the matter, the said judgment and decree passed in Title Suit No.100 of 1976 was not an isolated factor, rather before that also the matters had been decided by the courts of law with respect to the same property between the parties in whose shoes the parties to the instant case had stepped into. 8. In the said circumstances, this court does not find any illegality in the 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 under Order XLI Rule 11 of the Code of Civil Procedure. Sunil (S. N. Hussain, J.)