IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.291 of 2009 1.Shri Shankar Jee ,Established Mandir, Resident of Village- Dhanhar Dihuli, Dama Mahto, Pokhrapar through Gopi Chandra Mishra, Pujari Dewta Mandir, Resident of Village- Dhanhar, Dihuli, P.O. + P.S.-Ramgarhwa, District-East Champaran. -Defendant-Defendant-Appellant Ist Set. 2(a)Babita Kumari. (b)Khusboo Kumari. Both D/o Late Uma Shankar Sah. (c) Babloo Kumar. (d)Shashi Prakash. (e) Rumi Kumar. Both Minor children in the Guardianship of Renu Devi(mother) appellant no.3 3. Renu Devi, W/o Uma Shankar Sah. Both Resident of Village-Aamodei Tola, Narirgir, P.O.+P.S.-Ramgarhwa, District-East Champaran. -Defendant-Defendant-Appellant 2nd Set. Versus 1.Amir Ansari, Son of Late Ali Murtaza Hussain. 2.Imam Ansari, S/o late Ali Murtaza Hussain. 3.Noor Jahan, Khatoon, D/o late Ali Murtaza Hussain. All Resident of Village- Amodei Tola, Narirgir, P.O.+P.S.-Ramgarhwa,District-East Champaran. -Plaintiff-Appellant/Respondents. ----------- 4. 12.07.2011 Heard the learned counsel appearing on behalf 2 of the appellant in support of this appeal. The present appeal has been filed against the judgment and decree dated 25.04.2009 in Title Appeal No. 41/1 of 1994/2006 passed by Additional District Judge, East Champaran at Motihari whereby the judgment and decree dated 30.04.1991 passed by Munsif Raxaul at Motihari in T.S.No. 213/59/87/94 has been partly set aside. The plaintiff has filed the suit for declaration of title over the suit property as purchaser and further for declaration that the gift deeds dated 03.08.1978 and 20.09.1978 in favour of defendant nos.2 and 3 are void, inoperative, illegal and have also prayed for confirmation of possession over the suit property besides consequential reliefs for injunction. The original plaintiff (since deceased, through L.R.) claimed title over the suit land on the basis of the purchase by sale deed dated 30.08.1983 executed by the vendor namely Shukhali who has asserted to be the exclusive owner of the suit property. A genealogy has been given in the plaint and on the basis of said genealogy it has been claimed that Sukhli had ultimately became the sole owner of the entire property of 3 her ancestor Juga Sao and as such the plaintiff had claimed to have derived valid and exclusive title and possession over the suit land through the sale deed executed by Sukhli in his favour. However the defendants denied the genealogy set up by the plaintiff and have also denied that Sukhali had acquired/inherited title over the property of the family of Juga Sao. They have asserted that the suit property is the acquired property of Durga Sao out of his own income and after his death his widow Bhagmati Devi had executed the gift deeds in favour of the defendant nos. 2 and 3 out of which the defendant no.2 Uma Shankar Sao had executed a gift deed in favour of the defendant no.1 who is a deity Sri Shankar Jee. Thus the defendant’s case is in total denial of the claim of the plaintiff over the suit land. After hearing the parties and considering their evidence and pleadings the trial court has found that the plaintiff has not led any evidence to establish his case that the suit property was the ancestral property of Juga Sao. However the trial court has also recorded the finding that the defendants no.2 and 3 had also failed to prove the suit property to be the acquired property of Durga Sao. Finding 4 complete absence of evidence with regard to possession on behalf of the plaintiff the trial court declined to record a finding of possession in his favour. In view of the failure of the plaintiff to establish his title and possession by cogent evidence, the trial court has dismissed the suit. But on reappraisal of the evidence, pleadings and submissions of the parties the appellate court has come to the conclusion that the vendor of the plaintiff namely, Shukhli as well as the donee of the defendant nos. 2 and 3 belonged to one family and in view of the statement of the defendant no.14 in his deposition that there has been no partition in their family, the appellate court has come to the finding that Shukhli was entitled to a share in the property and execute the sale deed. Thereafter the appellate court considered the details of the plots covered by the gift deeds of the defendants as well as the sale deed of the plaintiff and has found that the Ext. B(gift deed executed by Uma Shanker Sah in favour of deity Shanker Jee)does not contain plot no.5673 of Khata No. 346 Area 3 Katha 11 Dhurs which is one of the plots contained in the sale deed of the plaintiff. It has also been found that the gift deeds executed by Bhagmati Kuer in favour of the 5 defendant nos. 2 and 3 also do not contain plot no.5673 of Khata No.344 as mentioned in the sale deed of the plaintiff. On this basis the appellate court has held that the vendor of the plaintiff namely Sukhli being one of the co- sharers in the family property of Juga Sao was entitled to transfer the lands of plot no.5673, Khata No.346 in favour of the plaintiff and has further held that since the other plots had already been covered by the two gift deeds in favour of defendant nos. 2 and 3, those plots could not have been validly transferred by Shukhali in favour of the plaintiff. Thus the appeal was partly allowed to the extent of the claim of the plaintiff over plot no. 5673 of Khata No. 346. The learned counsel appearing on behalf of the appellant has submitted that the judgment of the appellate court below is not in accordance with the evidence on record and the appellate court should have held that the sale deed executed by Shukhli in favour of the plaintiff was not legal and valid document . However during the course of the argument it could not be established by the appellants that the conclusions of the appellate court were not in accordance with the evidence 6 on the record. In view of the materials available on the record it is clear that Sukhli was one of the members of the family of Juga Sao and as such in absence of any evidence to establish that she had no share in the family property after the death of her husband, the finding of the appellate court in this regard cannot be faulted with. Further the appellants have also failed to convincingly demonstrate that Plot No.5673 of Khata No. 545 with regard to which the appeal has been allowed had already been alienated by the two gift deeds. For the foregoing reasons, there does not appear to be infirmity in the impugned judgment of the appellate court. There is no substantial question of law arising in this appeal for consideration which is, accordingly, dismissed. Nitesh ( V. Nath, J.)