IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.349 of 2008 1. Dadan Shukla son of Gunjan Shukla 2. Lalan Shukla son of Gunjan Shukla, both residents of village Basgaon, P.O. Manjharia, P.S. Bhairoganj, Dist. West Champaran …….Plaintiffs…….Appellants. Versus 1. Jugal Pathak son of Late Kailash Pathak, R/o village Patkhauli, P.S. Bagaha, Dist. West Champaran. 2. Uday Bhan Pathak 3. Rameshwar pathak @ Bablu pathak, both sons of late Nawal Kishore Pathak, 4. Soni Kumari daughter of late Nawal Kiishore Pathak,all resident of village + P.O. Pathkauli, P.S. Bagaha, Dist. West Champaran. 5. Poonam Devi wife of Nageshwary Mishra resident of village Bhatkhand Pakadi, P.O. Kathri, Bazar, P.S. Khothi Bhar, Dist. Maharajganj, State Uttarpradesh …….Respondents/Respondents/Defendants. --------- For the Appellants : Mr. Shiv Kumar Dwivedy, Advocate. For the Respondents: Mr. Dhrub Narayan, Sr. Advocate. Mr. Abhitabh Kr. Advocate. --------- 5 19.10.2011 Heard learned counsel Mr. S.K. Dwivedi appearing on behalf of the appellants and Mr. Dhrub Narayan learned Senior Counsel appearing for the respondents. This appeal has been filed against the judgment and decree dated 21.6.2008 passed by the Additional District Judge, P.O. F.T.C. V, Bettiah, and West Champaran in Title Appeal No. 3 of 2005 affirming the judgment and decree dated 9.2.2005 passed by Sub-Judge-II, Bagaha in Title Suit No. 42 of 1997. The plaintiffs who are the appellants herein against the judgment of affirmance has filed the suit for partition of their share in the joint family property of Kamta Pathak with the assertion that the plaintiffs are heirs of one of his son Sukhdeo pathak and the defendants are the heirs of his another surviving son Kailash Pathak. It has been stated in the plaint that Sukhdeo 2 Pathak has separated from his brother in the year 1943 and he died in the year 1945 leaving behind his widow Fulena Devi and a Daughter Sumitra Devi. The widow Fulena Devi is said to have died in the year 1947 and thus it has been claimed that her daughter Sumitra Devi, through whom the plaintiffs claim their title , had inherited the estate of Fulena Devi. On these basic facts the plaintiffs have claimed to have their share in partition. The defendants, per contra had asserted that there had been no separation in the year 1943 as alleged by the plaintiffs and further it has also been asserted that Sukhdeo Pathak had not died in the year 1945 and his widow Fulena Devi had also not died in the year 1947. It has been further stated by the defendants that Sumitra Devi as daughter of Fulena Devi and Sukhdeo Pathak did not derive/inherit any right title and interest in the property of the family of Kamta Pathak and thus the suit filed by the plaintiffs has no merit. Both the courts below have examined the oral and documentary evidence adduced by the parties in detail in view of the rival submissions made by them and have come to the finding that the case of separation in the year 1943 as made out by the plaintiffs is not proved. It has further been found that Sukhdeo Pathak had not died in the year 1945 rather he died some time in the year 1938. Both the courts below have also found that the plaintiffs have not been able to prove and establish their separate possession or joint possession over the suit property. Mr. S.K. Dwivedi learned counsel appearing on behalf 3 of the appellant has emphatically submitted that the findings recorded by both the courts below regarding the year of death of Sukhdeo Pathak as well as the separation in the year 1943 as made out by the plaintiffs are not sustainable because both the court below have placed reliance upon the documents i.e. pleadings and judgment of a title suit of the year 1950 to which the plaintiffs or their predecessor in interest were not parties and as such those documents will not be binding upon them. It has been further submitted that the defendant no.1 in the court below namely Nawal Kishore pathak had entered into compromise with the plaintiffs in suit itself and he accepted the case of the plaintiffs but both the courts have erroneously did not accept the compromise and pass a decree on that basis in favour of the plaintiffs. Learned counsel has also submitted that it is not the case of either parties that Sukhdeo Pathak died in the year 1934 but both the courts below have made out a third case by holding that Sukhdeo Pathak died in the year 1938. The perusal of the judgment of both the courts below clearly demonstrates that the findings recorded therein have been arrived at after the consideration of evidence of both the parties. The submission with regard to the reliance by the court below on the documents relating to Partition Suit No. 51/50 appears to be misconceived because this partition suit had been filed for partition of properties of the larger joint family to which the predecessor of the plaintiff and defendants belonged and in this plaint there is clear averment that Sukhdeo Pathak died 12 years 4 ago and his widow Fulena Devi was not made party in the suit. The courts below have rightly placed reliance on Ext.B,C.and D for coming to the finding that Sukhdeo Pathak died in the year 1938 and his widow Fulena Devi was not alive in 1950 because those documentary evidence contain the statements made by the persons having interest in the suit property. It is not the case of the appellants that the said Title Suit No. 51 of 1950 did not relate to the property of the joint family of Kamta Pathak. So far as the compromise between the defendant no.1 with the plaintiffs is concerned, both the court has rightly come to the conclusion that the said compromise is collusive and made with ulterior motive. It is not denied that the defendant no.1 has initially filed his written statement wherein he asserted the entire suit property belonging to the heirs of Kailash Pathak only but later on after having purchased the land from the plaintiff in the name of his wife Indu Devi and son which he accepted in his deposition, he has changed his stand in favour of the plaintiffs. The statement with regard to the making out a third case does not appear to have much force in view of the findings of the court below on the basis of documentary evidence on record that Sukhdeo Pathak died in the year 1938. Thus, the crucial issues between the parties to the suit have been determined by concurrent findings of fact by both the courts below. The appreciation of the evidence at the stage of second appeal is not permissible unless the findings are shown to be perverse. Nothing has been brought to the notice of this court 5 to establish that the finding of both the courts below are perverse. In view of the forgoing reasons, no substantial question of law arises in this appeal for consideration. This Second appeal is, accordingly, dismissed. M.Rahman (V. Nath, J)