IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.101 of 2000 RAM BADAN RAI & ORS Versus SHIVA DEVI & ORS ----------- 1 9 08.09.2008 Heard learned counsel for the appellants. 2. This second appeal has been filed by the plaintiffs - appellants-appellants challenging the judgments and decree of both the learned courts below. 3. This matter arises out of Title Suit no.83 of 1977 (52 of 1980) which was filed by the appellants for declaration that the properties detailed in Schedule III of the plaint were allotted to the plaintiffs by virtue of private partition amongst the co-sharers and in case they are not held to be entitled for that relief an alternative relief was sought to the extent of 2/3rd share by the plaintiffs in Schedule I of the plaint and for other ancillary reliefs. 4. The said suit was dismissed on contest with cost by the learned Subordinate Judge IV, Begusarai by judgment and decree dated 13.01.1981 which was challenged by the plaintiffs in Title Appeal no.4 of 1981. The learned 3rd Addl. District Judge, Begusarai also dismissed the said title appeal by judgment and decree dated 06.12.1999. In this second appeal the plaintiffs have challenged the aforesaid judgments and decree of the learned courts below. 5. The learned courts below after considering the pleadings and evidence adduced on behalf of the parties came to definite conclusion that documentary evidence led by the plaintiff does not show that partition took place in the year 1930 in which the plaintiffs got 2/3rd 2 share . Further more no evidence sufficiently proved any partition in the year 1930. Hence the learned courts below rightly came to the conclusion that no partition took place amongst the brothers in question in the year 1930 and the plaintiffs miserably failed to prove the same. The learned courts below also found that it was abundantly clear from the evidence on record that Ram Raksha Rai exclusively acquired land of Sanichro from Ram Khelawan in which his other co-sharers had no concern. Hence it was held that in the instant suit plaintiffs had claimed their share in the land which formed part of the said exhibit B, but in the aforesaid circumstance they could not prove it in the suit. Accordingly it was held that the property acquired by defendant no.1, Ram Raksha Rai through exhibit B was his exclusive property with which the plaintiffs had no concern. 6. So far as the point of res judicata is concerned, it had been claimed on the basis of the earlier order in a Land Acquisition proceeding. Both the learned courts below have considered the said issue and appellate court specifically found that the subject matter of claim and counter claim in the acquisition case were confined to survey plot nos. 1267/1287, 1267/1988, 1267/1989, but in the present suit none of the suit plot was involved and hence the subject matter was completely different. In such a situation even though the parties may be same but the question of point of res judidcata can not be legally attracted.. 7. This Court does not find any illegality in the said findings of the learned courts below. Further more the findings of the 3 learned courts below are findings of facts and no substantial question of law is 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. shahid (S.N.Hussain, J)