IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.296 of 2004 1. Mahesh Koeri, son of Ram Chandra Koeri 2. Yugal Koeri, son of Mahesh Koeri Both residents of village Sahasarawn, P.O. Assaon, P.S. Darauli, District Siwan. ……Plaintiffs-Respondents-Appellants. Versus 1. Sri Krishna Rai 2. Phulwari Rai Both sons of late Sheopujan Rai and residents of village Sahasarawn, P.O. Assaon, P.S. Darauli, District Siwan. …Defendants-Appellants-Respondents 3. Rajeshwar Koeri son of Lutawan Koeri 4. Komal Koeri, son of Rajewar Koeri. Both residents of village Sahasarawn, P.O. Assaon, P.S. Darauli, District Siwan. …Plaintiffs-Respondents…Respondents 5. Nathuni Rai, son of Laxmi Rai 6. Ram Bilash Rai 7. Manan Rai 8. Ramashankar Rai Nos. 6 to 8 are sons of Nathuni Rai 9. Deoki Devi, D/0 Nathuni Rai, w/o Jaikishore Rai, All residents of village Sahasarawn, P.O. Assaon, P.S. Darauli, District Siwan. 10. Baldeo Rai, son of Laxmi Rai 10(A). Most. Heera Devi, w/o of Baleshwar Rai 10(B). Smt. Subhadra Devi, w/o Vijay Singh Residents of village and P.O. Memana, P.S. Lar, District Deoriya ( U.P.) 10(C) .Durgeshwari Devi w/o Ajay Singh resident of village Jaghath, P.S. Bhatpura, District Deoriya. 10(D).Rameshwari Kumari, D/o late Baleshwar Rai 11. Most. Indrawati Devi, w/o Laxmi Rai 12. Ramapati Devi, wife of Babhan Singh 13. Kushuma Devi, wife of Chandra Sen Singh 14. Radhika Devi, wife of Vijay Bahadur Singh 15. Rajdei wife of Ramchit Rai, son of Sheopujan Rai. 16. Most. Gudiya w/o of late Banke Rai. Residents of village Sahasarawn, P.O. Assaon, P.S. Darauli, District Siwan. 17. Chandra deo Lohar 18. Baij Nath Lohar 19. Kashi Nath Lohar Sons of Sajjiwan Lohar 20. Most. Imarawati, wife of Ramchij Lohar Residents of village Gahilapur. 21. Ganga Koeri, son of Raghu Nandan Koeri 22. Ram Ratiya Devi, wife of Motilal 2 22.(a) Sarjug Kumar 22(b) Dhananjay Kumar sons of Moti Lal 23. Hira Lal, son of Raghu Nandan Koeri 24. Most. Samrajia w/o of Raghunandan Koeri. All residents of village Sahasarawn, P.O. Assaon, P.S. Darauli, District Siwan. ….Defendants-Respondents-Respondents. ----------- For the Appellants : Mr. Yogendra Pd. Sinha, Advocate. For the Respondents: None. ---------- 05/ 15.05.2009 Heard learned counsel for the appellants. 2. This second appeal has been filed by plaintiffs- respondents-appellants challenging the judgment and decree of the learned court of appeal below. 3. The matter arises out of Title Suit No. 135/1962 (109/1966), which was filed by the appellants along with respondents no.3 and 4 for redemption of mortgage with regard to the suit land and for other ancillary reliefs. 4. The said suit was decreed on contest by the learned Ist Additional Munsif, Siwan vide his judgment and decree dated 23.01.1982. Against the aforesaid judgment and decree of the trial court, defendants-appellants-respondents no.1 and 2 filed Title Appeal No.28/1982 (53/2002), which was allowed on contest by the learned Ist Additional District Judge-cum-Fast Track Court-1, Siwan vide his judgment and decree dated 30.06.2004. 5. After considering the arguments as well as the materials on record including the impugned judgment and decree of the learned court of appeal below, it is quite apparent that after very careful consideration of the pleadings and evidence, both oral and 3 documentary adduced by the parties as well as also after fully considering the judgment and decree of the trial court and defects therein, the learned court of appeal below has passed the impugned judgment and decree after arriving at the specific conclusion that the possession of the defendants is admitted and the provisions of law as well as the acts of the parties fully proved that the mortgage was extinguished by the parties and no mortgage was subsisting. It was also held that the defendants were in possession of the suit land for more than twelve years prior to the filing of the suit on the basis of their purchase and not as mortgagees, but in spite of the aforesaid facts and circumstances, the learned trial court did not decide the issues relating to adverse possession in accordance with law. It was also held by the learned court of appeal below after full and proper assessment of the facts and law that unless the sale is set aside by an application made within the period prescribed in Article 166 of the Limitation Act, 1908, the sale would be binding on the mortgagee and he cannot thereafter be allowed to redeem the mortgage ignoring the sale. 7. All these findings have been arrived at by the learned court of appeal below after full consideration of the pleadings and evidence of the parties as well as the provisions of law applicable to the case, which had been completely ignored by the trial court. 8. In the said facts and circumstances, this Court does not find any illegality in the impugned judgment and decreed of the 4 learned court of appeal 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. MPS/ ( S. N. Hussain, J. )