IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.261 of 2001 1(a) Mahesh Yadav 1(b) Awadhesh Yadav 1(c) Niraj Yadav sons of Late Bisheshwar Yadav 1(d) Shivmati Devi daughter of Late Bisheshwar Yadav 1(e) Chhote Lal Yadav son of Late Govind Yadav 1(f) Janki Devi wife of Late Govind Yadav 1(g) Kunti Devi daughter of Late Govind Yadav, W/o Ramdeo Yadav 1(h) Bedami Devi daughter of Late Govind Yadav, W/o Late Milan Yadav 2(a) Kapil Yadav 2(b) Mahendra Yadav Both sons of Late Ganesh Yadav 3. Hari Yadav 4. Hiraman Yadav 5. Dilip Yadav All residents of village Mangarbigha, P.S. Nawadah, District Nawadah. ……….Plaintiffs-Appellants-Appellants. Versus 1. Laljit Yadav 2. Kailash Yadav Both sons of Late Kishun Yadav 3. Sohari Devi widow of Late Kishun Yadav 4. Ranchi Devi D/o Late Kishun Yadav 5. Keshari Yadav D/o Late Kishun Yadav W/o Jagdeo Yadav 6. Gulab Yadav S/o Mito Yadav 7. Bandhu Yadav S/o Narayan Yadav All residents of village Mangerbigha, Pergana Samai, P.S. Nawadah, District Nawadah. ……..Defendants-Respondents-Respondents. For the appellants : Mr. Kamal Narayan Choubey, Sr. Advocate. with Gauri Shankar Prasad, Advocate. For the respondents : None. ----------- 22/ 06.04.2010 Heard learned counsel for the appellants. 2. This second appeal has been filed by plaintiffs- appellants-appellants challenging the judgments and decree of both the courts below. 2 3. The matter arises out of Title Suit No.25 of 1982 which was filed by plaintiffs-appellants for declaration that the deed of gift dated 16.02.1982 (Ext.B) purported to have been executed by defendant no.4 in favour of defendant nos.1 to 3, was not binding on the plaintiffs and was void. The said suit was dismissed on contest by the Munsif, Nawada vide his judgment and decree dated 20.07.1988. 4. Against the aforesaid judgment and decree of the trial court the plaintiffs-appellants filed Title Appeal No.50 of 1988 (13/1993) which was also dismissed on contest by the Additional District Judge-I, Nawada vide his judgment and decree dated 21.07.2001. Against the aforesaid judgments and decree of the courts below, the instant second appeal has been filed. 5. Although learned counsel for the plaintiffs-appellants vehemently challenges the aforesaid judgments and decree of the courts below, but it is quite apparent that the main issues in the instant case were as to whether defendant no.4 was joint as a member of joint Hindu family and coparcener with the plaintiffs when he executed the deed of gift dated 16.02.1982 (Ext.B) and whether the deed of gift was illegal, void, fraudulent and not binding upon the plaintiffs. 6. The said questions have been elaborately considered by both the courts below on the basis of specific pleadings and evidence on behalf of both the parties, whereafter it was held that the plaintiffs miserably failed to establish that defendant no.4 was a member of the joint Hindu family of the plaintiffs and had not separated when he had executed the deed of gift in question and 3 hence there was no question of any illegality in the execution of the deed of gift by defendant no.4 independently in favour of defendant nos.1 to 3. Furthermore, the allegation of the plaintiffs-appellants that the recital in the deed of gift was not correct as it was not read over to defendant no.4 and that one of the identifiers Ambika Lal was dead on the date of alleged execution of the deed of gift and that the attesting witness of the deed of gift, namely Ramawatar Prasad was a relative of defendant Kishun Yadav, but being a relative did not debar Ramawatar Prasad from being an attesting witness to the deed of gift nor any evidence had been produced on behalf of the plaintiffs to show that the identifier Ambika Lal was dead on the date of the said deed of gift. 7. So far the question of fraud is concerned, it had to be strictly proved by plaintiffs by cogent evidence, but the plaintiffs had miserably failed to establish by any valid and reliable evidence that any fraud was played upon defendant no.4 in execution of the deed of gift nor any material had been produced to show that the recital in the deed of gift was not read over to defendant no.4, which allegation was clearly against the recital of the deed of gift and also against the recital of written statement filed by defendant no.4 in the suit. 8. So far non-examination of the witnesses of the deed of gift is concerned, the plaintiffs having challenged the said deed, onus was squarely upon them to prove the same in which they miserably failed and they cannot take advantage of non-examination of the witnesses by the defendants under the provision of section 67 of the 4 Evidence Act, specially when it is not in dispute that the deed of gift was executed by defendant no.4 and the only question in the suit was whether the execution made by defendant no.4 was legal and proper and defendant no.4 had any right to do so. 9. So far the alleged affidavit of defendant no.4 produced as Ext.4 by the plaintiffs is concerned, the statements in the said affidavit were found to be one sided and were not tested on the anvil of cross-examination. Furthermore, the written statement filed by defendant no.4 completely negatived the contents of the affidavit and hence there was no occasion for the courts below to rely upon the said affidavit. Furthermore, the plaintiffs completely failed to support the said affidavit (Ext.4) by producing witness concerned who was available but was not examined. 10. So far the additional evidence produced by the plaintiffs-appellants is concerned, the court of appeal below very carefully considered various aspects of the same including the provision of Order XLI Rule 27 of the Code of Civil Procedure and rightly came to the conclusion on the basis of materials on record that the said documents sought to be admitted as additional evidence, were always in the knowledge of the plaintiffs and they had deliberately chosen not to bring those documents on record in the trial court and hence it refused to admit the said documents as additional evidence, as they did not come under the purview of Rule 27 of Order XLI of the Code of Civil Procedure. 11. In the said circumstances, this court does not find 5 any illegality in the impugned judgments and decree of the courts below nor does it find any substantial question of law involved in the instant second appeal which is accordingly dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. harish (S.N. Hussain, J.)