IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.263 of 2009 Shah Alam Ansari & Ors. Versus Md. Salauddin Khan & Ors. ----------- 11. 08.12.2011 Heard the learned counsel appearing on behalf of the appellant and learned counsel appearing on behalf of the respondents. 1. This appeal by the defendant/appellant has been filed against the judgment and decree dated 27.03.2009 passed by the District Judge, F.T.C.III, Rohtas ,Sasaram in T.A.No. 94/96 affirming the judgment and decree dated 17.08.1986 passed by Munsif I, Sasaram in T.S.No. 56/67. For convenience, the parties to this appeal shall be referred hereinbelow by their original position in the suit. 2. The plaintiffs have claimed their exclusive title and possession over the suit house on the basis of arbitration award in Partition Suit No.55/28 in which their possession over the suit house had been recognized and allowed to be retained by them. The plaintiffs have further asserted that they made construction in part of their allotted Plot No.230 and later on, at one point of time they 2 permitted the defendants to reside in the same for one year as their own house had fallen down but the defendants instead of vacating the house started staking their claim over the house compelling the plaintiffs to file the present suit. The defendants, in their turn have asserted that the suit property originally belonged to Aju Bibi who was maternal grandmother of the predecessor of the defendants and after her death they have inherited it as her heirs. The defendants have thus denied the title of the plaintiffs over the suit house on the basis of arbitration award in the partition suit and have asserted that the plaintiffs never got title and possession over the suit property. The defendants have also stated that the defendant no.5, later added as a defendant in the suit, has got title over the suit property on the basis of the sale deed dated 17.10.1966 executed by the defendant no.1 in his favour. 3. The trial court after analysing the evidence of the rival parties in view of their pleadings and submissions has recorded the finding that the suit property never belonged to Azu Bibi as claimed by the defendants. It has been further found that there had been earlier no partition between the predecessors of the plaintiffs and the 3 defendants before 1928 and in the arbitration award in Partition Suit No.55/28 the possession of the predecessors of the plaintiffs and the defendants over the houses in their possession had been recognized and accepted, and thus the plaintiffs have been found to have title and possession over the suit property as mentioned in Schedule C of the plaint. The trial court has also held that the sale deed dated 17.10.1966 executed by the defendant no.1 in favour of defendant no.5 was a void document in absence of title in the defendant no.1 with regard to the suit property. On the basis of these findings the suit has been decreed. 4. In appeal, the appellate court on reappraisal of the evidence of the parties and their submissions has held that there has been no partition of the family property during the lifetime of the common ancestor Iman Khan as claimed by the defendants and further it has also been found that the suit property did not belong to Azu Bibi as asserted by the defendants. Thereafter the appellate court has further found that the predecessor of the plaintiffs had been in possession of the homestead plot no. 230 as recognized in the arbitration award. Concurring with the findings of facts as recorded by the trial court it has been 4 concluded by the appellate court that the defendants have got no right, title and interest in their suit property and the sale deed dated 17.10.1966 executed by the defendant no.1 in favour of defendantno.5 is illegal and void document. 5. The learned counsel appearing on behalf of the appellants has submitted that both the courts below have misappreciated the evidence on record and have also ignored the material evidence of the defendants. It has been urged that the award in Partition Suit No. 55/28 have inherent ambiguity and it does not contain any stipulation that the Plot No. 230 had the house of the plaintiffs which was allowed to be retained by them. It has been contended that the interpretation of the arbitration award had been wrongly made by both the courts below ignoring the preponderance of the evidence led by the defendants and even then the bar of res judicata is attracted if it is found that the property of this suit had also been subject matter of the earlier Partition Suit No.55/29. 6. After hearing the submissions on behalf of the appellants and perusing the judgments of both the courts below it is clear that the plaintiffs have claimed the suit property to be their ancestral property which had 5 fallen in their share and have relied upon the arbitration award given in Partition Suit No. 55/28 in support of their claim. The defendants have denied the claim of the plaintiff mainly on the ground that the suit property belonged to their maternal grandmother Azu Bibi and had been inherited by them from her. Both the courts below after considering in detail the evidence, pleadings and submissions of the parties have recorded the finding of fact that the suit property never belonged to Azu Bibi and had disbelieved the story of inheritance as set up by the defendants in this regard. Thereafter it has been further found by both the courts below after considering the award(Ext.3)alongwith other evidence on record that the suit property i.e. Plot No. 230 have been in possession of the plaintiffs as their share in their ancestral property. It is a fact that the Plot No. 230 had not been specifically mentioned in the award but the consideration of recitals made in the award with the evidence brought by the parties on record has led both the courts below to come to the conclusion that the predecessors of the plaintiffs had been in possession of the Plot No.230 which had been allowed to be retained by them in their share. Reappraisal 6 of evidence for the purpose of evaluating this finding of fact is clearly beyond the ambit of jurisdiction in second appeal. Once after disbelieving the case of the defendants that the suit property belonged to Azu Bibi, both the courts below have rightly held on the basis of evidence that the plaintiffs have got title over Plot No. 230 as mentioned in Schedule C of the plaint and are entitled for recovery of possession as the property of their share. The submission regarding the bar of res judicata has got no force as the issues arising in both the suits are different. There is no substantial question of law arising for consideration in this appeal, which is, accordingly, dismissed. Nitesh ( V. Nath, J.)