IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.113 of 2008 SACHIDANAND JHA, SON OF LATE SRIKANT JHA, RESIDENT OF VILLAGE-SARISAB, TOLA-NAV TOLA, P.S. PANDAUL, DISTRICT-MADHUBANI. ……………….DEFENDANT NO.2-APPELLANT-APPELLANT. Versus 1. SRI KANHAIYA MISHRA, SON OF SRI GOVIND MISHRA. 2. SMT. INDRAMAYA MISHRAIN, WIFE OF SRI GOVIND MISHRA. 3. SRI GOVIND MISHRA, SON OF LATE NARSINGH MISHRA. ALL RESIDENT OF VILLAGE-KAITHINIYA, AT PRESENT RESIDENT OF VILLAGE-GANGAULI, P.S. PANDAUL, DISTRICT-MADHUBANI. ...............................PLAINTIFF’S-RESPONDENTS 1ST PARTY- RESPONDENT 1ST PARTY. 4. SMT. CHANDRIKA CHAUDHARAIN, WIFE OF SRI KESHAV CHAUDHARY, DAUGHTER OF JAI KANT JHA, RESIDENT OF HUSBAND’S VILLAGE-MEGHAUL, RESIDENT OF FATHER’S VILLLAGE-GANGAULI, P.S. PANDAUL, DISTRICT-MADHUBANI. ……………...DEFENDANT NO.1-RESPONDENT 2ND PARTY- RESPONDENT 2ND PARTY. ----------- For the Appellant: M/s. Kalikant Jha & Manish Jha, Advocates. --------- 5. 7.9.2010. Heard learned counsel for the appellant. This appeal has been preferred against the judgment and decree passed by the Additional District Judge, Fast Track Court No.1, Madhubani, in Title Appeal No.39 of 1995, whereby the aforesaid appeal has been dismissed and the judgment and - 2 - decree passed by the Sub Judge-IV, Madhubani, in Partition Suit No.68 of 1984 has been affirmed. Short facts of this case are that the plaintiff no.3, Indramaya Mishrain had jointly purchased the lands described in Schedule-I of the plaint, appertaining to Plot Nos.927 (Khata No.154), 569, 570 and 568 (Khata No.161) of a total area of 1 Bigha, 1 Katha and 12 dhoors alongwith the defendant no.1 by a registered sale deed dated 14.5.1962. Thereafter, subsequently, the plaintiff no.3 also purchased the share of defendant no.1 in the Plot No.927 and she came in possession of the entire area of Plot No.927, described in the Scheduled-I of the plaint. However, regarding rest of the lands, it is stated that there was certain private arrangement between the parties and according to that arrangement, they came in possession of their respective share but subsequently, dispute arose with regard to possession of the aforesaid lands from a particular side compelling the plaintiffs to file the present suit for partition. The factum of joint purchase of lands in the year 1962 by the plaintiff no.3 and defendant no.1 is admitted and the subsequent purchase of the share of the defendant no.2 of plot no.927 by the plaintiff is also admitted. This is also admitted that - 3 - in the remaining area, both the plaintiffs and the defendants would have 1/2 - 1/2 share. Dispute is only with regard to the fact whether the plaintiffs’ claim that they are in possession from particular side according to the private arrangement between the parties is correct or not. The trial court after considering the admitted case of the plaintiffs has come to the conclusion that the plaintiffs could not prove that they are in possession of the lands from a particular side according to the mutual arrangement or understanding between the parties because that mutual arrangement or private arrangement could not be proved. Thus, it has come to the conclusion that the lands as described in Schedule-II of the plaint has not been partitioned between the parties and also that both the parties are entitled for 1/2 - 1/2 share and, as such, preliminary decree has been passed with a finding that it will be assured during the process of preparation of final decree as to which half of the suit property the plaintiffs will get and which half portion would fall in share of the defendants. Thus, the suit was decreed with contest against defendant no.2 and ex parte against the defendant no.1. The plaintiffs or the defendant no.1 did not challenge the decree, however, the defendant no.2 had - 4 - challenged the same by filing Title Appeal No.39 of 1995. The lower appellate court has also affirmed the judgment and decree passed by the trial court and has noticed that the appellant-defendant no.2 entered into the step of Smt. Chandrika Chaudhrain, when he purchased her share in the year 1984, i.e., during the pendency of the trial. It has also been noticed that it is admitted fact that on the date of filing of the suit, the defendant no.2 had no valid right to say anything about the disputed lands for the reason that his position on the date of filing of the suit was of merely a caretaker of the owner Chandrika Chaudhrain. The defendant no.1, Chandrika Chaudhrain has neither appeared in the suit nor has she been examined in this case. However, the lower appellate court has also come to the conclusion that private arrangement between the parties could not be proved and in that view of the matter Schedule-II lands are liable to be partitioned as 1/2 and 1/2 share. Learned counsel appearing on behalf of the appellant could not point out any substantial error committed by the courts below. The decisions of both the courts below are concluded by concurrent finding on facts. Thus, this appeal, in the opinion of - 5 - this court is devoid of any merit and is, accordingly, dismissed. P.S. (Dr. Ravi Ranjan,J)