IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.434 of 1999 ----------- 1. Bishamitra Mali 2. Rama Shankar Mali Sons of late Ram Janam Mali 3. Narad Mali 4. Rangila Mali 5. Sharda Mali, sons of Bishamitra Mali 6. Ravi Mali (M) 7. Kavi Mali (M), sons of Narad Mali Under the guardianship of Narad Mali, father and natural Guardian 8. Mahendra Mali 9. Brajendra Mali, sons of Rama Shankar Mali 10. Mahesh Mali (M) 11. Dharmendra Mali (M) 12. Tuntun Mali(M) 13. Baby not named (M). All minor sons of Rama Shankar Mali Under the guardianship of Rama Shankar Mali, Father and guardian All residents of village Ramgarh, P.S. Ramgarh, P.O. Ramgarh, District Kaimur (Bhabhua), at present village Mahuwar, P.S. Ramgarh, District Kaimur (Bhabhua) ..Plaintiffs-Appellants-Appellants versus 1. Chandrabali Mali 2. Surjbali Mali 3. Tengari Mali sons of late Basant Mali 4. Kawleshwar Mali 5. Jiyan Mali, sons of late Nagina Mali 6. Baby not named (M) son of Kawleshwar Mali Under the guardianship of Kawleshwar Mali, father and guardian. 7. Banarasi Mali, son of Jiyan Mali 8. Chameli Kumari, wife of late Dhawaja Mali 9. Manju Devi 10.Sanju Devi 11.Nirmala Devi, daughter of late Dhawaja Mali 12. Ram Pyaray Mali (M) 13. Shyam Pyary Mali (M) 14. Munna Mali(M) All minor sons of late Dhawaja Mali Under the guardianship of Nirmala Devi, mother and guardian 15. Ram Ashish Seth 16. Ramashray Seth, son of Bhagwati Seth 17. Chandrawati Devi, wife of Ramashray Seth 18. Annapurna Devi wife of Ram Ashish Seth 2 19. Mahesh Singh, son of Shyamrathi Singh All residents of village Ramgarh, P.O. and P.S. Ramgarh, District Kaimur (Bhabhua) 20. Ram Niwas Upadhyay 21. Ramyesh Upadhyay 22. Shrinath Upadhyay 23. Shambhu Nath Upadhyay, sons of Nand Kishore Upadhyay. All resident of village Bidamanchak, P.S. Ramgarh, P.O. Upari, District Kaimur (Bhabhua), A/p Yeunti, P.O. Chapranga, P.S. Nuan, District Kaimur. …Defendants-Respondents-Respondents. ------ For the appellants : Mr. Mahesh Prasad, Advocate with Mr. Rewati Kumar Raman, Advocate For the respondents : Mr. Shiva Nandan Roy, Sr. Advocate with Mr. Girish Chandra Sharma, Advocate. ------ 10/ 26.04.2010 Heard learned counsel for the appellants and learned counsel for respondents no. 5 to 20. 2. This second appeal has been filed on behalf of plaintiffs-appellants-appellants challenging the judgments and decree of both the courts below. 3. The matter arises out of Title Suit No. 12 of 1994, which was filed by plaintiffs-appellants for partition of their 1/3rd share in the suit property and for other ancillary reliefs. The said suit was dismissed on contest by Subordinate Judge-I, Bhabua, vide his judgment and decree dated 06.09.2006. 4. Against the aforesaid judgment and decree of trial court, the plaintiffs filed Title Appeal No. 124 of 1996 (221/1996), which was also dismissed on contest by Additional District Judge-2, Kaimur, vide his judgment and decree dated 06.08.1999. Against the aforesaid judgments and decree of the courts below, the instant second appeal has been filed. 3 5. Although, learned counsel for the appellants vehemently challenges the aforesaid judgments and decree of the courts below and has claimed that either the evidence of plaintiffs-appellants have been ignored or have been misconstrued, specially Exts. 6A, 6B, 7, 8 & 9 as well as the evidence of P.W.4, but from the impugned judgment of the court of appeal below, it is quite apparent that it has considered the said evidence along with other evidence in paragraphs no. 17 to 23 of its judgment. 6. It is further claimed that wrong year of 1987 in Ext. 9 has been presumed by the court of appeal below, which has held that these documents were procured during the pendency of the suit. But from a perusal of paragraph no.17 of the judgment of the court of appeal below, it is quite apparent that with regard to Ext. 9, namely, Nirwachan Suchi of Ramgarh Vidhan Sabha, the lower appellate court has not presumed anything wrong rather it has said that the year mentioned therein is not clear and hence there was no question of any wrong interpretation and misconstruction of the said document. 7. So far Ext. 7 (Ration Card ) is concerned, it is clear that it is of the year 1993, but the lower appellate court has noted that it is of the year 1996, whereas, the suit had been filed in the year 1994. No doubt, the said document is of the year 1993, but it was procured immediately prior to the filing of the suit by the plaintiffs themselves and merely on the basis of the aforesaid ration card, the other evidence on record cannot legally be discarded. 8. So far statement with regard to P.W. 4 made in paragraph no. 17 of the judgment of the court of appeal below is concerned, it is 4 correct that at one place it has been noted that the said witness admitted that the plaintiffs lived in Mahuwar although in his deposition he has stated that the plaintiffs do not live in Mahuwar, but the said mistake appears to be a typographical mistake because just four lines above the said statement it has been noted in the said judgment that P.W.4 stated that the plaintiffs were resident of Ramgarh. In the said circumstances, on the basis of a typographical error, no question of law can be formulated specially when the evidence of the said P.W.4 was discarded on a different consideration that he had admitted that as he was blind since his birth, he had not seen anyone rather he was merely a hear-say witness. 9. Furthermore, from the impugned judgments of the courts below, it is quite apparent that they had considered each and every evidence adduced by the parties and, thereafter, have come to a specific conclusion that on the basis of pleadings and evidence of the parties, the plaintiffs have failed to prove that they were residents of Ramgarh and descendants of Ram Janam Mali. When the courts below have rightly found on the basis of pleadings and evidence of the parties that the plaintiffs were neither residents of Ramgarh nor the descendants of Ram Janam Mali, there is no question of unity of title and possession between the parties nor they can be legally held to be co-sharers in the properties, which they have sought to be partitioned. 10. Another point has been raised by learned counsel for the appellants that if the contesting defendants were pleading that the plaintiffs were descendants of Ram Janam Mali, then it was their duty to mention and prove the parentage of the plaintiffs in view of a decision of this Court 5 in case of Toral Mahto vs. Chandeshwar Mahto & Ors., reported in A.I.R. 1972 Patna 13, but the contesting defendants having failed to prove any such statement, their claim was fit to be rejected. 11. From a perusal of paragraph no.5 of the aforesaid decision of this Court, it is quite apparent that in the above mentioned case it was claimed that the person whose parentage was in dispute was known to the other side from much before, hence in the said circumstances, it was held that when they were knowing the contesting parties from before, then they ought to have given their parentage. In the said circumstances, the facts of the aforesaid case are completely different from the facts of the instant case. Hence, it is not applicable. 12. Furthermore, the findings arrived at in the impugned judgments by the courts below are concurrent findings of facts based on the pleadings and evidence of the parties, hence this Court does not feel any necessity to interfere with the impugned judgments of the courts below under the provision of section 100 of the Code of Civil Procedure. Accordingly, this second appeal is dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. MPS/ ( S. N. Hussain, J. )