IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.236 of 2004 1. MD.ISLAM MIYAN @ JHABRA @ MD.ISLAMUDDIN. 2. KALAM AZAD @ ABDUL KALAM AZAD. BOTH ARE SONS OF RAHMAN MIYAN. 3. AISHA KHATOON @ ASAMA KHATOON, W/O MD. ISLAM MIYAN. ALL ARE RESIDENT OF VILLAGE BODH GAYA PACHHATTI, P.O AND P.S. BODH GAYA, DISTRICT-GAYA. 4. RASHID MIAN @ RASHID ALAM. 5. KHURSHID MIAN @ KHURSHID ALAM. 6. MURSHID MIAN @ MURSHID ALAM. 7. MAKSHUD MIAN. 8. MD. MUSHTAFA ALAM @ MD. MUSTAFA. ALL (4 TO 8) ARE SONS OF LATE AZIMUDDIN. RESIDENT OF VILLAGE GHUGRI TAND, POLICE STATION CIVIL LINES, DISTRICT-GAYA. ………………………..DEFENDANTS/APPELLANTS/APPELLANTS. Versus 1. JAINAB KHATOON, WIDOW OF LATE SADIQUE MIAN. 2. MD. EQWAL, SON OF LATE SADIQUE MIAN. BOTH ARE RESIDENT OF VILLAGE BODH GAYA TOLA PACHHATTI, POLICE STATION BODH GAYA, DISTRICT- GAYA. …………………..PLAINTIFFS/RESPONDENTS/RESPONDENTS. ----------- For the Appellants : M/s. Dhrub Narayan, Senior Advocate and Jitendra Prasad Singh, Advocate. For Respondent No.2 : M/s. S.K. Mazumdar, Senior Advocate and Gopal Jee, Advocate. --------------- 8. 10.7.2009. Heard the learned counsel for the appellants and the learned counsel for Respondent No.2. This Second Appeal has been preferred against the judgment and decree of affirmation passed in Title Appeal No.12 of 1998, whereby the judgment and decree passed by the learned Subordinate Judge-III, Gaya, in Title Suit No.89 of 1996 has been affirmed by the judgment and decree dated 20.5.2004 passed in Title Appeal No.12 of 1998. - 2 - The specific case as made out by the learned counsel for the appellants is that the two courts below have failed to consider the materials on record and have passed the judgment and decree without adhering to the provisions of the Hanafi School of Muslim Law. In this connection, it was submitted that the specific case of the defendants was that they were five brothers in all but the courts below in their judgment have decided that Bakshun, the common ancestor, had three sons only, of whom Gafoor had pre- deceased the common ancestor. Apparently, no issue either was raised or decided in the courts below and similarly this point which is not a question of law was never sought to be agitated before the lower appellate court. The other submission on behalf of the learned counsel for the appellants was that their father had never executed any sale deed(Ext.1/B) but as it appears from paragraph 14 of the judgment of the trial court that defendant nos.1 and 3 who were the main contesting defendants of the suit have admitted in their written statement that their father had executed the sale deed(Ext.1/B). Apparently, the points canvassed by the learned counsel for the appellants are findings of facts which are concluded by the concurrent findings by the courts below. The question of Hanafi School of Muslim Law had not been adhered to by the two courts below does not appear to be a matter in issue since there is finding of the two courts below that properties had been partitioned and the father of the defendant nos.1 and 3 had executed the sale deed. In view of the facts and the circumstances of the case, I find no apparent substantial question of law which is required to be considered by this Court in Second Appeal. - 3 - Accordingly, this Second Appeal is dismissed. P.S. (Abhijit Sinha,J)