IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.261 of 2002 1.Jagdish Ram 2.Kamleshwari Ram @ Kusheshwar Ram Sons of late Moti Ram 3.Jhulphan Ram @ Jhalphan Ram 4.Lalo Ram @ Lal Ram 5.Soman Ram @ Suman Ram Appellants no.4 and 5 both sons of late Lakhmi Ram All residents of village + P.O. Pastpar Tola, Sakhua, P.S. Saur Bazar, District – Saharsa. --- Defendants….. Appellants…..Appellants. Versus 1.Sabiya Devi W/o Sita Ram resident of village+Post-Pastpar, P.S. Saur Bazar, District-Saharsa. ---- Plaintiff…Respondent…Respondent. 2.Dahu Ram(Since deceased) son of late Fatuli Ram Now represented by his son Ramrup Ram resident of village- Patori, P.S. Singheshwar, District-Madhepura. 3.Sibo Ram, S/o late Lelhu Ram, resident of village+P.O. Pastpar, P.S. Saur Bazar, District-Saharsa. ---- Defendants…Appellants….Respondents. For the appellants : M/s D.K.Singh and Ashok Kumar,Advocates. For the respondents: None ----------- 08/ 30.09.2008 Heard the learned counsel for the appellants. This second appeal has been filed by defendants- appellants-appellants against the judgments and decree of affirmance. The matter arises out Title suit No.53 of 1989, which was filed by plaintiff-respondent-respondent no.1 for declaration of her title over the suit premises and for confirmation of possession over the suit land and for setting aside order dated 03.06.1977 passed by the Executive Magistrate, Saharsa in Miscellaneous Case No. 294 of 1971 under the provision of section 146 of the Code of Criminal Procedure and also to declare that the entry of the name of Chintamani Devi in the revisional survey khatiyan with respect to the suit land was illegal and 2 for other ancillary reliefs. The aforesaid suit was decreed by the learned Munsif, Saharsa, vide judgment and decree dated 13.09.1991 against which the defendants-appellants filed Title Appeal No. 23 of 1991, which was dismissed by the learned Additional District Judge-III, Saharsa vide his judgment and decree dated 29.06.2002. Against the aforesaid judgments and decree, the instant second appeal has been filed. Admittedly, the suit premises belonged to late Sukul Chamar, who had two sons Khakhar Chamar and Chua Chamar. According to the plaintiff, Khakhar Chamar died issueless prior to 1916 in jointness with his brother Chua Chamar, who inherited the entire properties on the principles of survivorship, whereafter he died leaving behind a son Jagat Chamar, after whose death, his wife Girahmani Devi executed a will with respect to the suit land in favour of her daughter Sabiya Devi(plaintiff). On the other hand, according to the defendants, Khakhar Chamar had left behind a son Uchit and a daughter Chintamani Devi, out of whom Uchit Chamar died during infancy and Chintamani Devi inherited the properties of Khakhar Chamar and was recorded in the revisional survey khatiyan and executed sale deed dated 15.06.1970 in favour of the defendants. It is claimed by the defendants that plaintiff had no right, title and interest in the suit property, which belonged to Chintamani Devi who was recorded in the revisional survey khatiyan and her possession was also decided in a proceeding under section 146 of the Code of Criminal Procedure. 3 The learned courts below carefully considered the matter and came to the conclusion, on the basis of oral and documentary evidence, that Khakhar Chamar was not issueless and left behind a daughter Chintamani Devi, who was a real person and she was married to Fatuli Ram from whom she had a son Dahu Ram. However, learned courts below after considering the evidence of the parties also came to the specific conclusion that Khakhar Chamar died prior to 1916 in jointness with his brother Chua Chamar and this fact proved by the plaintiff could not be disproved by the defendants by any document. In the said circumstances, Khakhar Chamar having died prior to 1916 in jointness with his brother Chua Chamar leaving only a surviving heir, i.e. daughter Chintamani Devi, the entire properties of Khakhar Chamar would naturally devolve upon Chua Chamar on the basis of the principles of survivorship according to Hindu Law as undivided coparcenary property devolves on the surviving male heir and not to any female heir of the deceased coparcener. Hence, the learned courts below rightly held that Chintamani Devi never had any right, title, interest or possession over the suit property of Khakhar Chamar. The learned courts below also considered the question of unprobated will in favour of the plaintiff by her mother Girahmani Devi widow of Jagat Chamar dated 16.05.1970 and came to the conclusion that since the will was not probated, it can only be looked into for collateral purpose that the property was in possession of Jagat Chamar son of Chua Chamar and after his death, in possession of his 4 widow Girahmani Devi and daughter Sabiya Devi(plaintiff). The defendants had also failed to prove that Jagat Chamar died prior to 1956 nor raised any such pleadings and hence after the death of Jagat Chamar his daughter namely the plaintiff legally inherited his property according to the provisions of Hindu Succession Act, 1956. So far the question of the order passed in a proceeding under section 146 of the Code of Criminal Procedure is concerned, the same is not binding on a Civil Court and may be considered as an evidence with regard to possession but to substantiate the plea of possession and to support the said order, the defendants failed to produce any reliable evidence proving their possession as has been found by the learned courts below, whereas the plaintiff had been able to prove her title and possession over the suit properties and hence the entry in the revisional survey khatiyan with respect to the suit land in the name of Chintamani Devi was rightly held to be wrong and illegal as Chintamani Devi was found to have no right, title or possession over the suit land. In the aforesaid facts and circumstances of the case, this court does not find any illegality in the 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. harish (S.N. Hussain, J.)