IN THE HIGH COURT OF JUDICATURE AT PATNA S.A. No.71 of 2003 1. Narwadeshwar Singh @ Narmadeshwar Prasad Singh 2. Niwas Singh 3. Rabindar Singh All are sons of Late Damodar Singh, resident of village Randhan, P.S. Sikandra, District Jamui. 4. Smt. Puncha Devi, wife of Bhakdhari Singh, resident of village Mararoo, P.S. Sono, District Jamui. 5. Smt. Bilash Devi, wife of Chandrika Singh, resident of village Sukhnaha, P.O. +P.S. Khaira, District Jamui 6. Smt. Sudama Devi, wife of Murli Singh, resident of village Chhurohit, P.O. & P.S. Sono, District Jamui. 7. Smt. Urhul Devi, wife of Ajit Kumar Singh, resident of village Maraiya, P.O. & P.S. Kharagpur, District Monghyr. 8. Guroo Devi, wife of Ramanand Singh, resident of village Khergaur, P.S. Jamui, District Jamui. …..Plaintiffs-Appellants-Appellants. Versus 1(a). Mahendra Narayan Singh 1(b). Sudhir Kumar Singh 1(c). Mithlesh Singh 1(d). Randhir Singh All sons of Late Lachhmi Singh, resident of village Randhan, P.S. Sikandara, District Jamui. 1(e). Muni Devi, wife of Jaipal Singh 1(f). Karuna Devi, wife of Sri Surendra Singh Both daughters of Late Lachhmi Singh, resident of village Bhajaur, P.S. Town, District Jamui. ……Defendants 1st set-Respondents-Respondents. 2. Ranjeet Kumar Singh, son of Late Moti Singh resident of village Daulatpur, P.S. Jamui, District Jamui. At present residing at Jamui Masaurhi, Near Sita Mandir, District Jamui. …….Defendant 2nd set-Respondent-Respondent. For the appellants : M/s Kaushal Kumar Jha, Baidya Nath Thakur and Shankar Kumar Thakur, Advocates. For the respondents: Mr. Ravi Kumar, Advocate. -------- 13/ 13.04.2010 I.A. No.1712 of 2009 has been filed on 20.03.2009 on behalf of the appellants for expunging the name of respondent 2 no.2 Smt. Chandrika Devi, who is said to have died on 22.12.2008. It is stated in the said interlocutory application that she left behind no heir. However, a supplementary affidavit dated 30.03.2010 has been filed by the appellants stating that on inspection the appellants subsequently learnt that the said respondent no.2 although died issueless, but she left behind a nephew as her heir and legal representative fully detailed in paragraph-3 of the said supplementary affidavit. The said interlocutory application is well within the statutory period of limitation and is, accordingly, allowed. Let the name of aforesaid heir be substituted in place of deceased respondent no.2. 2. Heard learned counsel for the appellants and learned counsel for respondents 1st set. 3. This second appeal has been filed by plaintiffs- appellants-appellants challenging the judgments and decree of both the courts below. 4. The matter arises out of Title Suit No. 46 of 1978, which was filed by plaintiffs-appellants for declaration of their title, for confirmation of possession and alternatively for recovery of possession of the suit land as well as for other ancillary reliefs. The aforesaid suit was dismissed on contest by the Munsif, Jamui, vide his judgment and decree dated 05.07.1988. 5. Against the aforesaid judgment and decree of the trial court, the plaintiffs filed Title Appeal No. 04 of 1989, which was also dismissed by the District Judge-III, Jamui vide his judgment 3 and decree dated 05.02.2003. Against the aforesaid judgments and decree of the courts below, the plaintiffs-appellants have filed the instant second appeal. 6. Although learned counsel for the appellants vehemently challenges the judgments and decree of the courts below on the ground that when the earlier partition claimed by the plaintiffs was admitted by the defendants, the plaintiffs’ claim over the suit land should have been accepted as they could not deny the plaintiffs’ share after the said partition. 7. From materials on record including the judgments and decree of the courts below, it is quite apparent that they have considered the pleadings and evidence of the parties in detail and, thereafter, have come to the conclusion that although partition was admitted by plaintiffs and defendants both, but the plaintiffs claimed that in the said partition the suit land fell in exclusive share of father of the original plaintiff, whereas the defendants denied that the suit land was allotted to the share of the original plaintiff. The defendants also denied the plaintiffs’ claim that partition had taken place in 1918 AD and had claimed that partition took place in the year 1332 Fasali. 8. After perusing the evidence on record, the courts below also found that no document was brought by the plaintiffs in support of their case that partition took place in 1918 AD and neither in the plaint nor in the evidence there was any whisper as to which plot was allotted to Hazari Singh and Bhikho Singh in 4 lieu of the suit plots, whereas, the plaintiffs’ witnesses themselves admitted that there was no document to show as to which plot of land had fallen in the share of the plaintiffs. Hence, the learned courts below rightly held that it cannot be concluded that the suit land fell in the exclusive share of Fauzdari Singh, father of the original plaintiff, who also failed to prove his exclusive possession over the suit land. 9. In the said circumstances, it is quite apparent that the year of partition as well as the manner of partition both were in dispute and hence the onus was squarely upon the plaintiffs to prove the same, but they miserably failed to do so and hence the courts below were quite justified in rejecting the claim and the suit of the plaintiffs. 10. In the said circumstances, this court does not find 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. )