IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.429 of 1998 Singheshwar Thakur, son of Sobhit Thakur, village Pupri, @ Ratan Lakhami, P.S. and Sub-Pupri, District Sitamarhi. …Plaintiff no.4-Appellant-Appellant. Versus 1(a). Mostt. Chandrakala Devi 1(b). Suresh Thakur 1(c). Shankar Thakur 1(d). Sharawan Thakur All sons of late Ram Chandra Thakur 1(e). Lalita Devi 1(f). Manta Devi 1(g). Munni Devi 1(h). Guria Devi Daughters of late Ram Chandra Thakur, All residents of village Pupri, @ Ratan Lakhami, P.S. and Sub-Pupri, District Sitamarhi. 2(a). Most. Lolita Devi, widow of late Ram Chandra Thakur 2(b). Pappu Thakur 2(c) Saurabh Thakujr 2(d). Vikky Thakur sons of late Ram Chandra Thakur 2(e). Asho Kumari 2(f). Usha Devi Both daughters of late of Ram Chandra Thakur 3. Rajesh Thakur, son of Laxman Thakur 4. Rakesh Thakur, under the guardianship of Mostt. Samundari Devi @ Mostt. Bajhatni Devi ( Mother). 5. Mostt. Rajpatani Devi, W/o Laxman Thakur (decd) 6. Rajdeo Thakur 7. Kapileshwar Thakur 8. Biltu Thakur All sons of Jagga Thakur, resident of village Pupri, @ Ratan Lakhami, P.S. and Sub-Pupri, District Sitamarhi ….Defendants-Respondents-Respondents. . 9. Dasai Thakur, major son of late Doma Thakur 10. Bishwanath Thakur 11. Shiv Naqth Thakur Minor sons of late Doma Thakur. 12. Sushila Kumari, minor daughter of late Doma Thakur respondent nos. 10 and 12 under the guardianship of their mother Mostt. Ghutari Devi . Respondents no. 9 to 12, all village Pupari @ Ratan Laxmi, P.S. and Sub-Pupari, District Sitamarhi. 13. Smt. Gulhiya Devi D/o late Dasai Thakur w/o Mohan Thakur, resident of village Janakpur Dham, District Dhankhs ( Nepal ). 2 14. Smt. Kaushailya Devi, D/o Doma Thakur, w/o Raj Nandan Thakur, resident of village Nanpur, P.S. Nanpur, District Sitamarhi. 15. Smt. Bundul Devi, D/o late Doma Thakur, w/o Dilip Thakur, Dilip Kumar, resident of village Mohanpur, P.S. and District Sitamarhi. 16. Ram Nr. Thakur, son of Kamal Thakur (decd) 17. Chandeshwar Thakur, son of Balchand Thakur (decd.), 18. Kapileshwar Thakur, son of Sobhit Thakur 19. Deo Narayan Thakur, son of Lal Bihari Thakur ( decd). All of village Pupari @ Ratan Laxmi P.S. and Sub- Pupari, District Sitamarhi. Respondents no. 9 to 15 heirs of plaintiff no.1 Doma Thakur and respondent no.16 plaintiff no.2, Respondent No.17, plaintiff no.17, plaintiff no.3, respondent no.18, plaintiff No.5 and respondent no.19 plaintiff no.6. …Plaintiffs…Appellants-Respondents 2nd Party. ----------- For the appellant : M/s Y. P. Sinha, N. K. Sinha-3 and Arun Kumar, Advocates. For the respondents : Mr. Anshay Bahadur Mathur, Advocate. ------------ 23/ 08.02.2010 Heard learned counsel for the appellant. 2. This second appeal has been filed by plaintiff no.4-appellant-appellant challenging the judgments and decree of both the learned courts below. 3. The matter arises out of Title Suit No.61 of 1991, which was filed by the plaintiffs for declaration of their title and confirmation of their possession over R.S. Plot nos. 637 and 638 and alternatively recovery of possession along with other ancillary reliefs. The said suit was dismissed on contest by the learned Munsif, Pupari (Sitamarhi) vide his judgment and decree dated 17.08,1989. 4. Against the aforesaid judgment and decree of the trial court, plaintiffs filed Title Appeal No. 28 of 1994 ( 34/1997), which was also dismissed on contest by the learned Additional District 3 Judge-III, Sitamarhi, vide his judgment and decree dated 21.07.1998. Against the aforesaid judgment and decree of both the learned courts below, the instant second appeal has been filed. 5. Although learned counsel for the appellant vehemently challenges the aforesaid judgments and decree of the learned courts below, but the crux of the matter is as to whether the said plots were carved out of old plot no.320 as claimed by the plaintiffs or they were carved out of plot no.308 as claimed by the defendants. 5. Although the appellant being one of the plaintiffs, the onus was squarely upon them to prove their claim by valid and reliable evidence but they could not produce any piece of paper in support of their claim and they based their claim only on the report of the survey knowing Pleader Commissioner (Ext.11). 6. The learned courts below very carefully considered the matter and found that the total area of suit plots craved out of old plot no. 320 measured 84 decimals, which was more than 77 decimals of old plot no.320. It was also found that the report reveals that R.S. Plot no. 648 was in dispute over which house of the defendants stands but that is not the case of either of the parties. Hence, it was found that the said report of the Pleader Commissioner was not genuine and valid. 7. The learned courts below also found that the plaintiffs in their amended pleading have stated that the defendants dispossessed the plaintiffs from the house situated over plot no. 647 4 by entering in it in the night of 12.09.1992 when all the plaintiffs had gone to Darbhanga to meet the son of plaintiff no.4, who was studying in M.A., but the plaintiffs could not produce any evidence to show that the son of plaintiff no.4 was studying at Darbhanga. Furthermore, plaintiff no. 11, who is son of plaintiff no.4, merely claimed himself to be in private service in his deposition. 8. The learned courts below also found that the plaintiffs had stated that for the first time on 17.08.1991 the defendants began to interfere in their possession, but P.W. 11, son of the plaintiff, had stated in paragraph no.24 of his deposition that the defendants did not allow them to go along with bullock in the culturable land and not to the disputed land. However, Exts.3 & 3/A were reports submitted by the local Commissioner, who after visiting the spot, found that the suit plots were in possession of the defendants and they were residing in the house along with their family members and all the house-hold articles were found inside the rooms. 9. In the aforesaid facts and circumstances, the learned courts below were quite justified in coming to the conclusion that the plaintiff-appellant had failed to prove their title over the suit plots and also failed to prove that the suit plots were carved out of old plot no. 320. 10. Considering the aforesaid facts and circumstances, this Court does not find any illegality in the impugned judgments and decree of the learned courts below nor does it find any substantial question of law involved in the instant second appeal, 5 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. )