IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.129 of 2008 Abdul Kadir Mian @ Kadir Mian s/o Late Pir Mohammad Mian resident of Village Barka Rohra P.S.Barharia Dist. Siwan Defendant - Appellant- Appellant Versus 1. Narain Prasad s/o Janki Prasad 2. Dinesh Prasad s/o Narain Prasad Plaintiffs - Respondents-Respondents 3. Shakur Mian s/o Late Pir Mohammad Mian 4. Bibi Kashidan D/o Late Pir Mohammad Mian All resident of Village Barka Rohra P.S.Barharia Dist. Siwan Defendants - Respondents-Respondents ----------------------- For the appellant: Mr Yogendra Prasad Sinha, Advocate For the respondents: M/s V. Nath, Ashok Kumar, Jitendra, Advocates ------------------- 04/ 16.02.2010 Heard learned counsel for the appellant as well as learned counsel for respondents no.1 and 2. 2. This second appeal has been filed by the defendant- appellant-appellant challenging the judgments and decree of both the learned courts below. 3. The matter arises out of Title Suit no.32 of 1983 which was filed by the plaintiffs-respondent nos. 1 and 2 for partition of the suit land claiming a share of nine kathas four dhurs and two dhurkis out of the suit land. The defendant-appellant contested the suit claiming previous partition and cancellation of registered deed of transfer. The said suit was decreed on contest by the learned Subordinate Judge V, Siwan vide his judgment and decree dated 05.031994. 4. Against the aforesaid judgment and decree of the learned trial court, defendant-appellant filed Title Appeal no.36 of 1994, which was dismissed on contest by the learned Additional District Judge-cum- Fast Track Court no. IV, Siwan, vide his judgment and decree dated 23.02.2008. - 2 - Against the aforesaid judgments and decree of the learned courts below, the instant second appeal has been filed. 5. Admitted facts of this case are that the property originally belonged to two brothers namely, Pir Mohammad Mian and Sahudul Mian, out of whom Pir Mohammad Mian left behind two sons and a daughter, namely defendant no.1 (respondent no.3) , defendant no.2 (appellant) and defendant no.3 (respondent no.4) whereas Sahudul Mian left behind two daughters who sold their shares in favour of defendant no.1 (respondent no.3). 6. The claim of the plaintiffs was that the daughter of Pir Mohammad Mian, namely defendant no.3 (respondent no.4) sold her share to defendant no.2 (appellant) and the said defendant no.2 (appellant) executed three registered deeds dated 20.04.1981 and 29.04.1981 selling his share as well as share received by him from defendant no.3 (respondent no.4) in favour of the plaintiffs. It is further claimed that out of the said purchase land the plaintiffs -respondent nos.1 and 2 sold one katha fourteen dhurs to defendant no.4 (not impleaded in the second appeal) by registered deed dated 17.02.1982. It is further claimed that since there was no partition the plaintiffs were facing trouble and problem and hence they had filed the suit for partition. 7. On the other hand, the claim of defendant no.2 (appellant) was that after her sale deed dated 20.04.1981 defendant no.3 (respondent no.4) cancelled the said sale deed vide cancellation deed dated 25.06.1981 and gifted the said property to the wife of defendant no.2 (appellant) vide registered deed of gift dated 07.07.1981. It was also claimed that there was already a partition between the two brothers, namely, Pir Mohammad Mian - 3 - and Sahudul Mian and after death of Pir Mohammad Mian there was further partition among his children namely defendant nos.1,2 and 3 (appellant and respondent nos.3 and 4) and hence there was no occasion for a fresh partition. On the said ground, learned counsel for the appellant (defendant no.2) vehemently challenges the judgments and decree of the learned courts below. 8. After considering the arguments of the learned counsel for the parties as well as the materials on record, it is quite apparent that both the learned courts below considered the pleadings and evidence of the parties and came to the concurrent finding that neither there was any previous partition between Pir Mohammad Mian and his brother Sahudul Mian nor there was any subsequent partition between them or their heirs and hence the property throughout remained intact. This finding is a finding of fact based on full consideration of the pleadings and evidence of the parties. Hence this Court in a second appeal under the provision of section 100 of the Code of Civil Procedure can not legally interfere with such concurrent findings of facts. 9. So far the claim of appellant (defendant no.2) with regard to cancellation of sale deed is concerned, it is apparent that the sale deed executed by defendant no.3 in favour of defendant no.2 dated 20.04.1981 was purported to be cancelled by her vide deed of cancellation dated 25.06.1981 whereas three sale deeds executed by defendant no.2 in favour of the plaintiffs dated 20.04.1981 and 29.04.1981 were purported to be cancelled by him vide deeds of cancellation dated 08.07.1981 and 10.07.1981. Hence it will be quite strange to note that the appellant (defendant no.2) himself, after getting the share of his sister defendant no.3 (respondent no.4), executed three registered sale deeds in favour of the plaintiffs on 20.04.1981 and - 4 - 29.04.1981 and hence when the land acquired by the appellant (defendant no.2) by registered document from his sister was already transferred by him to the plaintiffs by registered deed dated 29.04.1981, there was no occasion for defendant no.3 (respondent no.4) to cancel her earlier deed by deed of cancellation dated 25.06.1981. In the said circumstances, the deed of cancellation executed by defendant no.3 (respondent no.4) had no value in the eye of law. 10. Furthermore, it is an admitted fact that three registered deeds dated 20.04.1981 and 29.04.1981 were duly executed by the appellant (defendant no.2) in favour of the plaintiffs- respondent nos. 1 and 2 and if the appellant (defendant no.2) had any grievance against the said deed on the ground of any forgery or fraud it was incumbent upon him to file a suit for such declaration instead of filing a simple partition suit. Merely executing deed of cancellation can not be of any legal effect specially when the transferee had already transferred the said property to other person by registered deeds which had already taken effect. This aspect of the matter has also been fully considered by the learned courts below. 11. In the aforesaid facts and circumstances, this Court does not find any illegality in the impugned judgments and decree of the learned 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. shahid (S.N.Hussain, J)