IN THE HIGH COURT OF JUDICATURE AT PATNA S.A. No.151 of 2003 ----- 1. Gopal Raut, son of Late Rudal Raut 2. Lalbabu Raut, son of Gopal Raut 3. Rameshwar Raut, son of Gopal Raut All resident of Village-Balua, P.S. Gaunaha, District-West Champaran (Bettiah). -- Defendants-Appellants-Appellants. Versus 1. Most.Maharaj Devi, wife of Late Rudal Raut, resident of Village- Balua, P.S.-Gaunaha, District-West Champaran (Bettiah). 2. Smt. Mina Devi, D/O Late Rudal Raut, W/O Gayani Raut, resident of Village-Pokharia, District-Parsa (Nepal). 3. Smt. Lalpari Devi, D/O Late Rudal Raut, Wife of Gayani Raut, resident of Village- Majhawalia, P.S. Bettiah, District-West Champaran (Bettiah). 4. Indal Raut, son of Late Rudal Raut, resident of Village-Balua, P.S. Gaunaha, District-West Champaran (Bettiah). -- Plaintiffs-respondents-respondents. ---- For the appellants : Mr. Surendra Kishore Thakur with Mr. S.P.Parasar, Advocates. For respondent no.4 : Mr. Rakesh Ranjan, Advocate For respondents no.1, 2 & 3 : None ---- 17. 27.10.2009 Heard learned counsel for the appellant and learned counsel for respondent no.4. 2. This second appeal has been filed by the defendants- appellants-appellants challenging the judgments and decree of both the learned courts below. 3. The matter arises out of Partition Suit No.39 of 1991 which was filed by the plaintiffs-respondents-respondents for partition of their share in the suit property and for other ancillary reliefs with respect to the said property. 4. The said suit was decreed on contest by the learned - 2 - Subordinate Judge-I, Bettiah vide his judgment and decree dated 24.12.1997. The judgment and decree of the trial court was challenged by the defendants in Title Appeal No.11 of 1998 which was dismissed on contest by the learned Additional District Judge- IV, West Champaran vide his judgment and decree dated 21.05.2003. The said judgments and decree of both the courts below are under challenge in the instant second appeal. 5. From the arguments as well as from the materials on record it is not in dispute that the parties to the suit belong to the same family. However, the contention of the defendants-appellants was that there was a partition between the family much earlier on the basis of which a memorandum of partition (Ext.-C) was prepared in the year 1982 which was signed by all the family members. Hence, the defendants claimed that since there had already been partition earlier, there was no occasion for allowing the partition suit as there is neither any unity of title nor unity of possession between the parties with respect to the suit properties. 6. The learned courts below have very thoroughly considered the said issue and had come to the specific finding that Ext.-C is the alleged memorandum of partition of 1982 and in that document, the name of Rudal Raut appears along with Indal Raut whereas the name of Maharani Devi wife of Rudal Raut appears alongwith Gopal Raut but it was no where disclosed in the memorandum of partition as to whether Rudal Raut and Maharani Devi were also allotted any land. It was also found that neither in the - 3 - said Ext.-C, nor in the depositions of defendants’ witnesses supporting Ext.-C, the date of actual partition had been mentioned and hence there is nothing to show that when actual partition had taken place and whether it was by metes and bounds. 7. The learned courts below also concurrently found that the said Ext.-C although said to have been executed in the year 1982 never saw the light of the day and for the first time it was produced in the said court. Furthermore, the said Ext.-C shows that there was a partition between the father and the sons, but there is no statement anywhere that either the mother was given any share or she ever declined to have a share in the suit property. In the said circumstances, the learned court below was quite justified in not replying upon the aforesaid Ext.-C as no credence could be legally attached to it. Hence, when the defendants’ claim of previous partition fell apart, the learned courts below had no option left but to decree the suit for partition as admittedly the parties to the suit belonged to the same family and the properties involved were the ancestral properties. 8. In the aforesaid facts and 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 of hearing under Order XLI Rule 11 of the Code of Civil Procedure. Sunil (S. N. Hussain, J.)