IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.156 of 2007 1. Nethuni Singh 2. Sheo Parsan Singh 3. Mangal Singh 4. Sudama Singh 5. Surajdeo Singh 6. Ramker Singh All sons of Mohan Singh resident of village Majhian P.O. Sabar P.S. Bhagwanpur, Kaimur (Bhabua) Defendants Ist party- Respondents- Appellants Versus 1. Akhtar Husain son of late Khairuddin resident of village Sabar P.O. Sabar P.S. Karamchat, Kaimur (Bhabua) Plaintiff- Appellant-Respondent 2. Jhuri Singh Yadav s/o late Subedar Singh Yadav 3. Peyari Devi w/o late Bajrangi Singh Yadav 4. Chandradhar Singh Yadav @ Chanderdhar Singh Yadav s/o late Bajrangi Singh Yadav 5. Nagina Singh Yadav 6. Dewal Singh Yadav sons of late Hira Singh Yadav resident of village Pandeypur P.O. Sabar P.S. Bhagwanpur, (Karamchat) Dist. Kaimur (Bhabua) Defendants 2nd party- Respondents-Respondents ----------------------- For the appellants: Mr Anjani Kumar Sinha no. I, Advocate For the respondents : Mr V. Nath, Advocate Ist party Mr Ashok Kumar, Advocate Mr Radha Mohan Pandey, Advocate Mr Neeraj Kumar, Advocate Mr Satish Kumar, Advocate ----------------- 08 13.11.2009 Heard learned counsel for the appellants as well as learned counsel for respondent no.1. 2. This second appeal has been filed by defendants Ist party- respondents-appellants challenging the judgment and decree passed by the learned court of appeal below reversing the judgment and decree of the learned trial court. 3. The matter arises out of Title Suit no. 167 of 1992 which was filed by the sole plaintiff-appellant-respondent for declaration of his right, title and interest over the suit premises on the basis of - 2 - registered sale deed no. 9677 dated 15.11.1989 executed by the defendants 2nd party for a consideration of Rs 9,500/- and for declaration that defendants Ist party did not acquire any title on the basis of the sale deed dated 06.06.1989, and also for declaration of possession and alternatively recovery for possession etc. The said suit was heard ex parte as defendants Ist party did not appear and the suit was dismissed by the learned Munsif, Bhabua vide his judgment and decree dated 04.09.1995. 4. Against the aforesaid judgment and decree of the trial court, plaintiff filed Title Appeal no.93 of 1995(51 of 1997) which was allowed by the learned Additional District Judge I, Kaimur vide his judgment and decree dated 31.03.2006 setting aside the judgment and decree of the trial court and decreeing the suit and claim of the plaintiff. The said judgment and decree of the learned court of appeal below is under challenge in the instant second appeal. 5. From the judgment of the learned trial court, it is quite apparent that defendants Ist party did not appear in the title suit proceeding in spite of notice. However, from the judgment of the learned court of appeal below it transpires that defendants Ist party who were respondents in the said title appeal appeared after notice but subsequently they stopped appearing in spite of service of notice, summons and publication in the daily newspaper. Finally the said title appeal was allowed. 6. The leaned court of appeal below very carefully considered the matter and found that admittedly defendants 2nd party were original owner of the suit property and they had specifically - 3 - claimed throughout the proceeding that initially they executed sale deed dated 06.06.1989 in favour of defendants Ist party but due to non- payment of consideration amount the said sale deed was cancelled by registered cancellation deed dated 27.07.1989 and subsequently defendants 2nd party sold the suit property to the plaintiff by registered sale deed dated 15.11.1989. The learned court below also found that exhibits 1 and 2 namely deeds as well as receipts clearly show that due to non-payment of consideration money by the defendants Ist party sale was never complete and was duly cancelled and hence admitted owner was quite justified in transferring the suit premises to the plaintiff by the subsequent sale deed. 7. The learned court of appeal below has also found that there was no evidence at all on record on behalf of defendants Ist party to rebut the claim of the plaintiff and it clearly proved the reluctancy of defendants Ist party in contesting the claim of the plaintiff whereas the original owner of the suit property namely defendants 2nd party admitted and supported the claim of the plaintiff. 8. In the aforesaid facts and circumstances, this Court does not find any illegality in the impugned judgment and decree of the learned court of appeal 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. (S.N.Hussain,J) shahid