IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.169 of 2005 (i) Lal Babu Giri (ii) Dhrup Giri (iii) Rajesh Giri (iv) Shrimati Lalmuni Devi (v) Shrimati Sumitra Devi (vi) Srimati Suryawati Devi (vii) Srimati Lalti Devi (viii) Shrimati Sangeeta Devi (ix) Shrimati Lalsa Devi (x) Shrimati Nayan Pati Devi heirs of deceased-appellant Ram Ratan Gir, resident of village Charngaha ,P.S. Motihari District Motihari, presently resident of village Radhiya Tapa Sonebal, P.S. Govindganj, District East Champaran. ………………Plaintiffs-Appellants-Appellants) Versus 1. Ramashray Prasad son of Mahadeo Prasad 2. Shatrudhan Prasad 3. Vinod Prasad 2 and 3 sons of Ramashray Prasad all residents of village Radhiya Tapa Sonebal P.S.Govindganj, District East Champaran ……………… Defendants 1 to 3-Respondents 1 to 3-Respondents For the appellants : Mr. Madhu Prasun, Advocate. For the respondents : M/s Ram Kumar Sharma and Dhananjay Kumar No.2, Advocates. ----------- 07/ 27.04.2009 Heard learned counsel for the appellants. 2. This second appeal has been filed by the original plaintiff- appellant-appellant challenging the judgments and decree of both the learned courts below. 3. The matter arises out of Title Suit No.153 of 1985 which was filed by the original sole plaintiff-appellant for declaration that the registered deed of partition dated 09.02.1987 executed by Janakdulari and others and Ramashray Prasad was valid and genuine document and for confirmation of possession of the plaintiff thereon and in case the 2 plaintiff was found to be out of possession of the suit properties for delivering the same to him through the process of court and for permanent injunction and other ancillary reliefs. 4. The said title suit was dismissed on contest by the learned Subordinate Judge-VI, Motihari vide his judgment and decree dated 30.11.1994. Against the aforesaid judgment and decree of the trial court the plaintiff filed Title Appeal No.87 of 1994 which was also dismissed on contest by the learned Additional District Judge-cum-Fast Track Court No III, Motihari vide his judgment and decree dated 26.02.2005. 5. From the arguments of the parties as well as from the materials on record, including the judgments and decree of both the learned courts below, it is quite apparent that both the learned courts below after full consideration of the pleadings and evidence of the parties came to the specific conclusion that the property originally belonged to one Udit Giri and the plaintiff was the nephew of Munshi Giri who happened to be the son-in-law of Udit Giri and hence the plaintiff cannot claim any relationship with Udit Giri nor he can claim the property of Udit Giri either by inheritance or by survivorship. 6. The learned courts below after perusing the evidence of the parties also came to the conclusion that the claim of the plaintiff that Munshi Giri and his wife adopted the plaintiff was also not proved as neither any document was produced to prove the same nor the witnesses who deposed on behalf of the plaintiff, including the plaintiff himself, could disclose the day or even the approximate period of adoption, and nothing of that sort was either averred or proved by the 3 plaintiff. Hence the claim of adoption was absolutely baseless and frivolous and appears to be merely one of the ploys to some how usurp the suit properties. 7. So far the question of gift was concerned, the learned courts below also considered it in detail whereafter they came to the conclusions that at the time of alleged gift the age of the plaintiff was only 16 years and he was not competent to accept the gift and no one was shown as his guardian and next friend and hence due to incompetency of the gift the plaintiff cannot claim on its basis. Furthermore, from the gift it appeared that it was with respect to the entire properties whereas the plaintiff was claiming only a portion thereof on the basis of partition and hence the said deed of gift on that score also cannot be said to be legal, operative or ever acted upon. 8. The learned courts below also considered the pleadings and evidence of the parties with respect to the claim of plaintiff regarding mistake of plot numbers in partition deed and found that it was several decades old and in the will and gift claimed by the plaintiff no mention about any mistake in the plot number of the partition deed was made and no mention thereof was made even in the prayer portion of the plaint, hence it was held that the plaintiff’s claim to rectify the number of plots in the partition deed after lapse of several decades cannot be allowed, as it was hopelessly barred by limitation, waiver, acquiescence and estoppel. 9. On the other hand, it was found that the defendants had fully proved that the suit land was allotted to them in the deed of 4 partition and the suit plots covered his share and they were in possession of the suit land and their names were mutated and government rent receipts as well as water rent receipts were being issued to them which fully proved their possession. It was also held that so far the will is concerned, the same has never been probated and hence it cannot be relied upon as legal and genuine document. Furthermore, no document was produced to prove the plaintiff’s claim of possession nor there was any material to substantiate his claim of title and hence the plaintiff having no right, title and possession in the suit property the learned courts below were quite justified in rejecting his claim. 10. In the aforesaid 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. harish/ ( S.N.Hussain, J)