IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.122 of 2005 1. Hari Narain Sahu @ Hari Narain Sao 2. Shiv Shankar Sahu Both sons of Late Dev Narain Sao 3. Smt. Janki Devi 4. Smt, Sulochna Devi 5. Smt. Krishna Devi All daughters of Late Dev Narain Sao resident of Village Bakhari P.S. Bakhari Sub-Division Bakhari Dist. Begusarai Defendants - Appellants- Appellants Versus 1. Mossmat Kunti Devi w/o late Pramanand Sao 2. Laliteshwar Prasad s/o late Pramanand Sao 3. Umesh Prasad s/o late Pramanand Sao 4. Urmila Devi d/o late Pramanand Sao 5. Smt. Manju Devi d/o late Pramanand Sao 6. Smt Nilam Devi d/o late Pramanand Sao 7. Nageshwar Sah s/o late Maya Ram Sah 8. Chandra Bhushan Sah s/o late Jadu Nandan Sah 9. Binod Kumar Sah s/o late Jadu Nandan Sah 10. Subodh Kumar Sah s/o late Jadu Nandan Sah 11. Bisheshwar Sah s/o late Suresh Sah 12. Mossmat Daiji Devi w/o late Jai Narain Sah 13.Rajendra Sah s/o late Jai Narain Sah 14. Ram Lakhan Sah s/o late Jai Narain Sah 15. Om Prakash Gupta s/o late Jai Narain Sah 16. Sheo Prakash Gupta s/o late Jai Narain Sah 17. Ajay Sah s/o late Suresh Sah 18. Dipak Kumar 19. Manik Kumar Sahu both sons of late Suresh Sah 20.Smt. Bimla Devi d/o late Suresh Sah 21. Smt. Bharti Devi d/o late Suresh Sah 22. Smt. Bindu Kumari d/o late Suresh Sah 23. Mossmat Rubbi Devi @ Rubbi Kumari w/o late Suresh Sah @ Suresh Sao All resident of Village Bakhari P.S. Bakhari Dist. Begusarai Plaintiffs-Respondents- Respondents Ist set 24. Ashok Sah 25. Vijay Sah 26. Rajendra Sah 27. Bajrang Sah All sons of Late Ugra Narain Sah 28. Mossmat Sushila Devi w/o late Ugra Narain Sah 29. Dinesh Sah s/o late Kamini Devi w/o late Hiralal Sah 30. Arun Sah s/o late Kamini Devi w/o late Hiralal Sah 31. Pankaj Sah s/o late Kamini Devi w/o late Hiralal Sah 32. Smt Kiran Devi d/o late Kamini Devi w/o late Hiralal Sah All resident of Village Singhia P.S. Singhia Hardiya Dist. Samastipur 33.Smt. Sarojini Devi 34. Smt. Sita Kumari 35. Smt Binda Kumari all daughters of late Ugra Narain Sah 36.Amar Nath Sah - 2 - 37. Shravan Kumar both sons of late Ram Sagar Sah 38.Smt. Pappu Kumari 39. Smt Nirmala Devi 40. Smt Nutan Kumari 41. Smt Sunita Kumari 42. Smt Rita Kumari 43. Smt Mamta Kumari All daughters of Late Ram Sagar Sah 44. Mossmat Kavita Devi w/o late Ram Sagar Sah All resident of Village Bakhari P.S. Bakhari Dist. Begusarai Defendants-Respondents- Respondents 2nd set ----------- For the Appellants: Mr V. Nath, Advocate Mr Ashok Kumar, Advocate ---------- 10/ 14.05.2010 Heard learned counsel for the appellants. 2. This second appeal has been filed by defendants- appellants-appellants challenging the judgments and decree of both the courts below. 3. The matter arises out of Title Suit no.62 of 1985 (137/1987) which was filed by plaintiffs-respondents Ist set for a decree of demarcation of the suit land and a decree of permanent injunction against defendants with respect to the suit land as well as for other ancillary reliefs. The said suit was decreed on contest by Munsif I, Begusarai vide his judgment and decree dated 22.07.1996. 4. Against the said judgment and decree of the trial court, defendants-appellants filed Title Appeal no.26 of 1996 which was dismissed on contest by Additional District Judge V, Begusarai, vide his judgment and decree dated 29.01.2005. Against the above mentioned judgments and decree of the courts below 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 quite apparent that it was admitted by defendant deposing as DW 7 that - 3 - plaintiffs and defendants had half share in the suit land. It was also admitted that the land was not measured as there was a boundary but he was unable to tell about length and width of the land. Defendants were also unable to say as to whether the respective shares of the parties were demarcated by survey knowing pleader commissioner by metes and bounds. 6. On the basis of the entire pleadings and evidence of the parties, both the courts below came to the conclusion that no line of demarcation was ever drawn on the land either by the process of the court or by survey knowing pleader commissioner. Exhibit 2 and exhibit E are the documents on which partition was claimed and the courts below found on close perusal of the said documents that the shares of the plaintiffs and defendants were not separated and demarcated by any party by any scientific measurement by metes and bounds and only shares were indicated and specified by using some adjective expression and hence now to avoid any litigation and bad blood between the parties, it is necessary that the land should be demarcated by metes and bounds through scientific method as per the said documents exhibit E and exhibit 2. 7. Learned counsel for defendants-appellants has also argued that the suit was not maintainable in view of the specific provisions of Rules 9 and 5 of the Code of Civil Procedure but from a combined reading of the aforesaid provisions of law along with sections 40 to 45 Bengal Survey Act, it appears that there is no express bar to such a suit as no survey boundary is in dispute and hence the suit was clearly maintainable. In view of the aforesaid facts and circumstances as well as admitted position, there was no occasion to consider irrelevant material not concerned with the point to be decided. 8. In the aforesaid facts and circumstances, this Court does - 4 - 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. (S.N.Hussain,J) shahid