IN THE HIGH COURT OF JUDICATURE AT PATNA S.A. No.318 of 1994 1. Sumitra Devi wife of Satyadeo Singh 2. Chandra Jotiya Devi @ Chandrajota Devi wife of Ram Narain Singh 3. Nagawati Devi @ Nagawati Devi wife of Kapildeo Singh, All resident of village Dhatingana, P.S. and District Gopalganj. …..Respondents no.17 and 19-appellants. Versus 1. Chandradeo Nonia 2. Saral Nonia both sons of late Ratan Nonia, resident of village, P.O.,PS. and District Gopalganj. …Plaintiffs-Appellants-Respondents 1st set 3. Satan Nonia son of Gopal Nonia 4. Bhagrasani w/o Gopal Nonia 5. Laldeia Devi d/o Gopal Nonia 6. Sheopujan Nonia 7. Bachan Nonia,both sons of late Bhikhan Nonia 8. Mostt.Chanmatia 9. Mostt. Rajmatia 10.Most. Sona 11.Most.Sheomatia Devi All daughters of late Bhikhan Nonia 12.Most.Chaurasiya Devi w/o Bhikhari Nonia 13.Ramautar Nonia 14.Madan Nonia 15.Chhabila Nonia, No.13 to 15 are sons of Jawahar Nonia, all resident of Gopalganj, P.S. and District Gopalganj. 16.Sionamati Devi w/o Jamuna Prasad, Headmaster V.M.H.E. School Gopalganj, resident of at P.O., P.S. and District Gopalganj. 17.Mahabir Kanu s/o Gopal Kanu, resident of Gopalganj, P.S. and District Gopalganj. 18.Rajnaraian Singh, resident of village Dhatingana, P.S. and District Gopalganj.. ….Defendants-Respondents-Respondents. For the appellants : M/s Prabhakar Dwivedi and Amar Prakash, Advocates. For the respondents : None. ----------- 07/ 30.03.2009 An interlocutory application dated 11.12.1995 has been filed for condoning three days delay in the filing of the second appeal. From the averments made by learned counsel for the appellants and the statements made in the interlocutory application, it appears that genuine reasons have 2 been shown due to which the appeal could not be filed earlier. Accordingly the interlocutory application is allowed and delay in the filing of the second appeal is condoned. 2. Heard learned counsel for the appellants. This second appeal has been filed by the defendants- respondents-appellants challenging the judgment and decree of the learned court of appeal below. 3. The matter arises out of Title Suit No.47 of 1977, which was filed by the plaintiffs-appellants-respondents 1st set for partition of the suit land to the extent of 1/9 share in Schedule-I property and 1/3 share in Schedule-II property and for other ancillary reliefs. 4. The said suit was dismissed on contest with cost by the learned Munsif, Gopalganj vide his judgment and decree dated 26.07.1986. Against the aforesaid judgment and decree of the trial court the plaintiffs filed Title Appeal No.22 of 1986 (111/91), which was allowed on contest with cost by the learned Additional District Judge-III, Gopalganj vide his judgment and decree dated 17.03.1994 setting aside the judgment and decree of the trial court and decreeing the suit and claim of the plaintiffs. 5. From the arguments as well as from the materials on record, including the impugned judgments and decree of the learned courts below, it transpires that the learned trial court had dismissed the suit on the ground that the suit properties had already been partitioned in the year 1954 and hence there is no requirement for any further decree of partition. 6. However, the learned court of appeal below has found that 3 as per the recital in the deed in question, which simply says that the other lands were already partitioned, such statements in itself cannot necessarily mean that all the ancestral lands were partitioned by metes and bounds. In the said circumstances, the learned court of appeal below has rightly found that the said deed (Ext.1) cannot in itself be a conclusive proof of earlier partition of 1954. The learned court of appeal below has also considered the other evidence of the parties and has come to the specific finding that the suit land was not earlier partitioned and hence the instant title suit for partition was quite maintainable. 7. The learned court of appeal below has also found that if defendant no.2 sold the lands in favour of defendant no.16 and his wife to the extent of more than their share, the sale beyond their shares would be void. It was also held that the plaintiffs were not required to seek any declaration with respect to a deed which is void ab-initio. The learned court of appeal below has also held that the vendees either from the plaintiffs or other defendants will take the share of their vendors and in any partition vended land will be allotted to the share of their vendors. 8. In the aforesaid circumstances, the impugned judgment and decree of the lower appellate court which is the final court of fact is based on findings of facts and this court does not find any illegality in the same. Accordingly, this second appeal is dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. harish/ ( S.N.Hussain, J.)