IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.99 of 2007 1. Harihar Mahto s/o late Gulab Mahto 2. Jitendra Mahto @ Babuia 3. Munna both sons of Harihar Mahto All resident of Mohalla Dalelganj PO Sasaram P.S. Sasaram Dist. Rohtas Defendants 9,10,11-Appellants-Appellants Versus 1. Most.Asha Devi w/o late Dasharath Ram 2. Sachidanand 3. Ramanand 4. Dayanand 5. Binodanand 6. Karunanand 7. Satyanand 8. Parmanand All sons of late Dashrath Ram All resident of Mohalla Dalelganj PO Sasaram P.S. Sasaram Dist. Rohtas Plaintiffs-Respondents- Respondents Ist set 9. Gopal Singh 10. Kishori Singh both sons of late Moti Singh Both resident of Mohalla Nayaka Gawn Dharma Shala Road Sasaram P.S. Sasaram Dist. Rohtas Heirs of Defendant no.1-Respondents- Respondents 11. Paras Nath Singh 12. Om Prakash Singh 13. Ram Prakash Singh All sons of late Ram Naresh Singh resident of Mohalla Dalelganj P.S. Sasaram Dist. Rohtas 14. Ram Naresh Singh s/o Ramnath Singh resident of Mauza Konar P.S. Shivsagar Dist. Rohtas Defendants-Respondents- Respondents 15. Deonti Davi 16. Kalawati Devi 17. Maya Devi All resident of Mauza Konar P.S. Shivsagar Dist. Rohtas Defendants-Respondents- Respondents -------------- For the appellants : Mr. S.S. Dwivedi, Sr. Advocate Mr Hari Shankar Roy, Advocate For respondent : Mr Chitragupt Prasad, Advocate Nos. 1 to 8 Mr Subash Kumar No. I, Advocate For respondent no.11: Mr Ajay Kumar Sharma, Advocate ----------------- 12/ 05.04.2010 Heard learned counsel for appellants and learned counsel for respondents. - 2 - 2. This second appeal has been filed by defendant nos.9 to 11- appellants-appellants challenging the judgments and decree of both the courts below. 3. The matter arises out of Title Suit no.105 of 1994 which was filed by the plaintiffs-respondents-respondents Ist set for partition of their moiety share in the suit property as they claimed that original owner and common ancestor was Bhagelu Mahto who had two sons Bakhori Mahto and Chamaru Mahto and out of them plaintiffs are decendants of Chamaru Mahto whereas defendants are decendants of Bakhori Mahto. The aforesaid suit was decreed on contest by Subordinate Judge IV, Sasaram vide his judgment and decree dated 06.09.1996. 4. Against the aforesaid judgment and decree of the trial court, the defendants-appellants filed Title Appeal no.109 of 1996 which was dismissed on contest by Additional District Judge-cum- Fast Track Court No. II, Rohtas, vide his judgment and decree dated 04.04.2007.Against the aforesaid 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 on the grounds that appellants were defendant nos.9 to 11 in the trial court but no opportunity was given to them to cross-examine the witnesses of plaintiffs and to argue the case and that frivolity of plaintiffs’ claim is apparent from the face of record as they failed to support their pleadings by valid and reliable evidence but in spite of that both the courts below allowed plaintiffs’ claim. 6. From the materials on record including the impugned - 3 - judgments and decree of both the courts below, it is quite apparent that notices were sent to defendants including defendant nos. 9 to 11 who are appellants. Defendant no. 10 and 11 were minor sons of defendant no.9- Harihar Mahto and for the said minors guardian-ad-litem was appointed by the court when their guardian failed to appear in spite of valid service of notices. It further transpires that defendant no.9-Harihar Mahto appeared in the suit on 15.11.1994 but did not file any written statement either on his behalf or on behalf of his minor children and accordingly, vide order dated 02.06.1995 the trial court directed the case to be listed on 04.07.1995. In the meantime defendants were permitted to file written statement, failing which the suit should proceed under Order VIII Rule 10 of the Code of Civil Procedure. It further transpires that thereafter the said defendant-appellant filed application on 11.07.1995 for recall of earlier orders of the court and for permitting him to file his written statement. The said application was heard and was rejected by the trial court vide order dated 28.06.1996 after full consideration of all facts and circumstances of the case, whereafter the suit itself was decided by the trial court on 06.09.1996. In the meantime, the said defendant no. 9-appellant had filed Civil Revision No. 1268 of 1996 in the High Court which was dismissed as having become infructuous on 26.09.1996 due to the disposal of the suit. 7. In the aforesaid facts and circumstances, it is quite apparent that the courts below had committed no illegality while passing the impugned judgments rather the said defendant was not heard due to his own laches. Furthermore, there is nothing to show that the said defendant- appellant had ever filed any application or made any effort before the court below for cross-examining the witnesses of plaintiffs. - 4 - 8. So far plaintiffs’ entitlement to moiety share in the suit property is concerned, the courts below had very carefully gone through the pleadings and evidence adduced by the parties and had rightly come to the conclusion that defendants and plaintiffs are coming from two branches of the same family and hence there was unity of title and possession between the parties and the plaintiffs were entitled to moiety share in the suit property. 9. In the aforesaid facts and circumstances, this Court does 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