1 IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.34 of 2002 1. Ran Vijay Bahadur Singh 2. Divijay Bahadur Singh Both sons of late Kaushal Kumar Singh, residents of village Bazareyan, P.O. Baruhi, P.S. Sahar, District Bhojpur. 3. Smt. Lalita Devi, wife of Sri Bipin Bihari Singh, resident of village BNakhatari, P.O. Bhadasi, P.S. Arwal, District Jehanabad. 4. Smt. Sushila Devi, wife of Sri Bindeshwar Singh, resident of village and P.O. Hurka, P.S. Jilauthu, District Rohtas. 5. Smt. Urmila Devi, wife of late Ram Awadhesh Singh, resident of village +P.O. and P.S. Mohanpaur, District Gaya. 6. Smt. Sabita Devi, wife of Sri Kalika Prasad Roy, village Tenauj, P.O. Natwar, P.S. Natwar, District Rohtas. ..Heirs of defendant 1st party-Respondent 1st set- Appellants versus 1. Murlidhar Singh, son of late Jang Bahadur Singh, resident of village Bajareyan, P.S. Sahar, District Bhojpur. … Defendant 2nd Party-Appellant-Respondent 1st set. 2. Thakur Dasi Devi, wife of Bhagwati Prasad Singh, resident of village + P.O. Thanua, P.S. Sheosagar, District Rohtas 3. Munniji , wife of Akshya Kumar Singh, resident of village Manikpur, P.S. Kurtha, District Jehanabad, at present residing at Naigodam, Maharani Lane No.1, At, P.S. and District Gaya. .. Defendant 3rd Party-Respondent 2nd set-Respondent 2nd set . ----------- SA No.35 of 2002 1. Ran Vijay Bahadur Singh 2. Divijay Bahadur Singh Both sons of late Kaushal Kumar Singh, residents of village Bazareyan, P.O. Baruhi, P.S. Sahar, District Bhojpur. 3. Smt. Lalita Devi, wife of Sri Bipin Bihari Singh, resident of village BNakhatari, P.O. Bhadasi, P.S. Arwal, District Jehanabad. 4. Smt. Sushila Devi, wife of Sri Bindeshwar Singh, resident of village and P.O. Hurka, P.S. Jilauthu, District Rohtas. 5. Smt. Urmila Devi, wife of late Ram Awadhesh Singh, resident of village +P.O. and P.S. Mohanpaur, District Gaya. 6. Smt. Sabita Devi, wife of Sri Kalika Prasad Roy, village Tenauj, P.O. Natwar, P.S. Natwar, District Rohtas. ..Heirs of defendant 1st party-Respondent 1st set - Appellants versus 1. Veer Vijay Bahadur Singh, son of late Awadhesh Kumar Singh, Resident of vildlage Bajareyan, P.S. Sahar, District Bhojpur. ..Plaintiff-Appellant-Respondent 1st set. 2. Murlidhar Singh, son of late Jang Bahadur Singh, resident of village Bajareyan, P.S. Sahar, District Bhojpur. .. Defendant 2nd Party-Respondent 2nd set -Respondent 2nd set. 3. Thakur Baso Devi, wife of Bhagwati Prasad Singh, resident of village + P.O. Thanua, P.S. Sheosagar, District Rohtas 2 4. Munniji , wife of Akshya Kumar Singh, resident of village Manikpur, P.S. Kurtha, District Jehanabad, at present residing at Naigodam, Maharani Lane No.1, At, P.S. and District Gaya. .. Defendant 3rd Party-Respondent 3rd set-Respondent 3rd set. ----------- For the Appellants : M/s Birendra Mohan Singh and Ajay Kumar ( in both appeals) Singh, Advocates. For the Respondent: M/s V. Nath and Md. Waliur Rahman, No.1 in S.A.35/2002: Advocates. For other Respondents: None. ---------- 15/ 04.05.2009 Heard learned counsel for defendant first party- respondents-appellants, who are the same in both the second appeals as well as learned counsel for the sole plaintiff- appellant-respondent no.1 in S.A. No.35 of 2002. No one has appeared for other respondents. 2. In S.A. No. 34 of 2002, I.A. No. 2715 of 2009 has been filed on behalf of the applicants on 27.04.2009 for being substituted in place of the sole appellant Kaushal Kumar Singh, who is said to have died on 03.12.2003 leaving behind two sons and four daughters as his heirs and legal representatives fully detailed in paragraph no.1 of the interlocutory application and also for condoning the delay and setting aside abatement. I.A. No. 2714 of 2009 has also been filed on behalf of the said applicants for holding that there is no delay, no abatement at all and if there be any, those may be condoned and allow the appeal to proceed in usual manner. 3. It is stated that this second appeal was filed on 13.02.2002 by the sole deceased appellant and it was dismissed for default on 21.03.2003 due to non-compliance of the peremptory order of this Court, whereafter M.J.C. No. 916 of 3 2003 was filed by the appellant on 23.05.2003 for restoration of the second appeal. The said M.J.C. No. 916 of 2003 was dismissed for default on 24.07.2003 and for its restoration M.J.C. No.1400 of 2003 was filed by the appellant. The said M.J.C. No.1400 of 2003 was allowed on 22.03.2004 and M.J.C. No. 916 of 2003 was restored to its original file and number. Thereafter, M.J.C. No. 916 of 2003 was again dismissed for default on 06.04.2004 and for its restoration another M.J.C. No.1039 of 2004 was filed on behalf of the appellant. The said M.J.C. No.1039 of 2004 was allowed on 28.01.2006 and M.J.C. No. 916 of 2003 was again restored. Finally M.J.C. No.916 of 2003 was allowed by this Court on 01.02.2007 and S.A. No. 34 of 2002 was restored. 4. It is found that after the dismissal of S.A. No.34 of 2002 for default on 21.03.2003 the sole appellant died on 03.12.2003 and I.A. No.2073 of 2004 was filed by his heirs for their substitution on 06.04.2004 in I.A. No. 916 of 2003, but the said interlocutory application was not considered. However, in M.J.C. No. 1400 of 2003 the said heirs of the sole appellant- petitioner was substituted vide order dated 15.03.2004. Furthermore M.J.C. No. 1039 of 2004 was filed in the name of deceased original sole appellant, but it was filed through his aforesaid heirs. 5. Inspite of the aforesaid facts and steps taken by the heirs of the deceased sole appellant in the various M.J.C. 4 cases, no step was taken by the said heirs either in Second Appeal No.34 of 2002 or in Second Appeal No.35 of 2002 for substitution of the heirs of the sole appellant of both second appeals. However, when after restoration of S.A. No.34 of 2002, it was placed before this Court, two weeks’ time, as prayed for, was granted to learned counsel for the appellant to file an interlocutory application for substitution of heirs of deceased sole appellant subject to law of limitation and abatement. 6. Thereafter, I.A. No. 2715 of 2009 and I.A. No. 2714 of 2009 were filed on 27.04.2009 in S.A. No. 34 of 2002 and I.A. No. 2717 of 2009 and I.A. No. 2716 of 2009 were filed on 27.04.2009 in S.A. No. 35 of 2002 by the aforesaid heirs of deceased sole appellant for their substitution after condoning the delay and setting aside abatement. . It may be mentioned in this connection that both the second appeals were made analogous by this Court on 17.09.2002 and when S.A. No.35 of 2002 was listed for hearing under Order XLI Rule 11 of the Code of Civil Procedure on 16.05.2003, an objection was taken that S.A. No.34 of 2002 having already been dismissed for default, S.A. No.35 of 2002 was not maintainable. In the said circumstances, this Court vide order dated 23.06.2003 directed S.A. No. 35 of 2002 to be listed after disposal of M.J.C. No. 916 of 2003. 7. In the said circumstances, it transpires that heirs of the sole appellant of both the second appeals could not take any step for their substitution in the appeals on the presumption that 5 since applications for substitution have already been filed in the M.J.C. cases, there was no requirement for taking any such step in the second appeals as the M.J.C. cases were offshoots of the appeals. Considering the facts and circumstances of this case, all the aforesaid interlocutory applications are allowed, abatement is set aside and delay is condoned in both the aforesaid second appeals. Let the heirs of the deceased sole appellant be substituted in his place in both the appeals. 8. Both these second appeals arise out of Title Suit No. 276 of 1992, which was filed by Veer Vijay Bahadur Singh, who is respondent no.1 in S.A. No.35 of 2002 for partition of the suit properties detailed in Schedule-I of the plaint and for other ancillary reliefs. The said Veer Vijay Bahadur Singh was the plaintiff of the suit out of which these two second appeals had arisen and was also party to both the title appeals and hence he was impleaded as respondent no.1 in S.A. No.35 of 2002 and was impleaded as respondent no.4 in S.A. No. 34 of 2002 from which his name was deleted by learned counsel for the appellant on 18.03.2009. In the said circumstances, in S.A. No.34 of 2002 the main and most necessary party of the suit and appeals regarding partition is not a party . 9. The said title suit was dismissed on contest by the learned Subordinate Judge-IV, Arrah, vide judgment and decree dated 30.05.1997. Against the aforesaid judgment and decree, two title appeals were filed. Title Appeal No. 34 of 1997 was 6 filed by the sole plaintiff Veer Vijay Bahadur Singh, whereas, Title Appeal No.35 of 1997 was filed by respondent no.2 Murlidhar Singh, who was supporting the claim of partition raised by the plaintiff. Both the aforesaid title appeals were heard, considered and allowed on contest with respect to all the suit plots except 3 decimals of land of plot no. 962 under Khata no. 28 of the revisional survey by the learned Ist Additional District Judge, Bhojpur vide his judgment and decree dated 08.10.2001. Against the said common judgment of the learned court of appeal below and its decrees, defendant no.1 Kaushal Kumar Singh had filed the aforesaid two second appeals. 10. From the arguments of the parties as well as from the materials on record including the impugned judgments and decree of the learned courts below, it is quite apparent that the lower appellate court considering the pleadings of the parties and judgment and decree of the trial court had formulated two issues for determination of the two title appeals, namely, (i) as to whether there was a complete partition in the year 1955 or there was a partial partition in the year 1962 and (ii) whether the plaintiff and defendant no.2 had proved their unity of title and possession in respect of the suit property along with defendant first party. 11. Learned court of appeal below after considering the pleadings and evidence of the parties came to the specific conclusion that oral evidence adduced on behalf of both the 7 parties does not throw any light to come to the conclusion in favour of any of the parties clearly because there was oath against oath and hence it was documentary evidence of the parties, which was appropriate for deciding the issues in the case. After considering the various documents of the parties, the learned court of appeal below came to the specific conclusion that the said documents clearly show that the partition was effected in the family before 1962 but there is no documentary evidence to show that the partition was effected for the entire properties including the suit land. It was also held that the partial partition was proved to have been effected between the parties on or about 1958-59 and not in the year 1955 or 1962 as claimed by the parties. Since the said finding of fact has been arrived at by the final court of facts after legally and properly considering the relevant evidence of the parties, this Court does not find any illegality in the same. 12. After considering the evidence and pleadings of the parties, the learned court of appeal below also came to the specific conclusion that the suit plots were joint properties of the plaintiff and defendant 1st party and defendant 2nd party, but out of them the plaintiff could not prove his title over 3 decimals of plot no.962 and hence in the said circumstance it was held that the lands bearing plot no.957 having an area of 6 decimals, plot no.968 having an area of 4 decimals, plot no.972 having an area of 16 decimals, plot no.761 having an area of 28 decimals and 8 plot no.762 having an area of 23 decimals were the joint ancestral lands of the parties and hence the plaintiff, defendant first party and defendant second have unity of title and possession over the same and each of them had 1/3rd share in the same. These findings have been arrived at by the learned court of appeal below after considering the documents produced by the parties in detail and this Court does not find any necessity to interfere with such findings. 13. In the aforesaid facts and circumstances, this Court does not find any illegality in the impugned judgment and decree of the learned court of appeal below in both the title appeals nor does it find any substantial question of law involved in any of the aforesaid two second appeals, which are, accordingly, dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. MPS/ ( S. N. Hussain, J. )