IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.541 of 2009 1. BAHADUR MANDAL, SON OF LATE KODO MANDAL. 2. BIJNESH MANDAL. 3. DWIJESH MANDAL. 4. TRIJESH MANDAL. 5. YUGNESH MANDAL. 6. BULKESH MANDAL. APPELLANTS 2 TO 6 ARE SONS OF BAHADUR MANDAL (APPELLANT NO.1). ALL ARE RESIDENT OF VILLAGE-BAGHMARI, P.S. CHANDAN, DISTRICT-BANKA. ……………….PLAINTIFFS/APPELLANTS/APPELLANTS. Versus 1. RAM CHANDRA MANDAL, SON OF LATE KODO MANDAL. 2. RAMESHWAR MANDAL, SON OF LATE KODO MANDAL. 3. PARMESHWAR MANDAL, SON OF MAUJI MANDAL. 4. SHIB NARAYAN MANDAL, SON OF RAM CHANDRA MANDAL. 5. SUSHILA DEVI, WIFE OF LATE BALMUKUND MANDAL. 5A. BABLU MANDAL, SON OF LATE BAL MUKUND MANDAL. 5B. SUDHIR MANDAL, SON OF LATE BAL MUKUND MANDAL. 5C. VIKASH MANDAL, SON OF LATE BAL MUKUND MANDAL. 6. UPENDRA MANDAL, SON OF RAMESHWAR MANDAL. 7. SHAMBHU MANDAL @ MUNNA, SON OF RAMESHWAR MANDAL. ALL ARE RESIDENT OF VILLAGE-BAGHMARI, P.S. CHANDAN, DISTRICT-BANKA. ……...DEFENDANTS/RESPONDENTS/RESPONDENTS. ----------- For the Appellants : Mr. Om Prakash Pandey, Advocate. ---------- 6. 9.11.2010. Heard learned counsel for the appellants. 2 This appeal has been preferred against the judgment and decree dated 16.10.2009 and 3.11.2009 respectively passed by the 3rd Additional District Judge, Banka in Title Appeal No.90 of 2006, whereby he has dismissed the appeal and affirmed the judgment and decree dated 29.4.2006 and 12.5.2006 respectively passed by the Sub Judge-III, Banka in Partition Suit No.16 of 1990. The plaintiffs-appellants have brought the partition suit concerned for a preliminary decree of partition of their 1/4th share in the joint properties fully described in the plaint and for carving out their separate plots after appointment of Survey Knowing Commissioner. The case of the plaintiffs is that the plaintiffs and the defendants are the descendants of common ancestor Kodo Mandal and Kunti Devi was wife of Kodo Mandal. The plaintiff no.1, Bahadur Mandal and defendant nos.1, 2 and 3 are full brothers and the sons of Kodo Mandal. The plaintiff nos.2 and 6 are the sons of Bahadur Mandal. Thus, the plaintiffs sought 1/4th share in the joint properties acquired by Kodo Mandal and his sons and grand sons. It is further case of the plaintiffs that the plaintiff no.1 requested the defendants for partition through the arbitrators. They agreed 3 and the arbitrators were nominated. However, they asked the plaintiffs to put their signatures on the blank papers, which were four in number and the plaintiffs in good faith put their signatures on the same. However, from blank papers, the memorandum of partition was prepared on 14.4.1979 duly signed by the arbitrators and other co-sharers. One copy of the memorandum was given to the plaintiffs, however, the plaintiffs were surprised to find that they were not allotted sufficient share in the land and house. Objections were filed before the Revenue Authority. However, eventually they had to take recourse by filing the present suit for partition. The defendants appeared and contested the suit. The trial court, on appreciation of pleadings of the parties, framed altogether six issues and upon consideration of materials on record has dismissed the suit of the plaintiffs holding that there is no unity of title and possession between the parties as partition had already taken place as per the memorandum of partition dated 14.4.1979 and the same was affected and acted upon by the parties. The appellants being aggrieved by the judgment and decree of the trial court have preferred Title Appeal No.90 of 2006. 4 The lower appellate court, however, after consideration of materials on record and rival submissions, has dismissed the appeal and the judgment and the decree passed by the trial court has been affirmed. Learned counsel for the appellants submitted that both the courts below have erred in considering the Ext.A, the memorandum of partition dated 14.4.1979, as the same was actually an award prepared by the arbitrators, which was mandatorily required to be registered. In the above view of the matter, it has been urged that the aforesaid document was of no value. However, both the courts below have placed reliance upon the same to hold that there was earlier partition in the family. I do not find any substance in the submissions made on behalf of the appellants. While considering the aforesaid document, the lower appellate court has noticed that the same has been challenged by the plaintiffs on account of fraud being committed upon them as allegedly their signatures were taken on four blank papers. However, the plaintiffs themselves have described the document as memorandum of partition in their pleading. Not only that it has also noticed that even in 5 the evidence led on behalf of the plaintiffs also, the document has not been challenged on account of its being an award in place of the memorandum of partition. Thus, upon consideration of materials on record, the lower appellate court has come to the conclusion that the document concerned was the memorandum of partition and, hence, it was not required to be registered. Further, the courts have recorded a finding that the plaintiffs have miserably failed to prove the fact that fraud was committed in preparation of the aforesaid memorandum of partition. Eventually, the appeal was dismissed. This Court is also of the opinion that the appellants could not point out any substantial error committed by the courts below which may lead to a substantial question of law. As a result, this appeal is dismissed. P.S. ( Dr. Ravi Ranjan, J)