IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.219 of 2006 1. BISHWANATH PANDEY, S/o Sheodhari Pandey 2. Amrendra Pandey son of Biswanath Pandey Both resident of village Belwa, P.O.and P.S. Adapur, District East Champaran …… Plaintiffs…. Appellants… Appellants Versus 1. JAGARNATH PANDEY, S/o Gunjeshwar Pandey, Decd. of village – Belwa, P.O. and P.S.Adapur, District East Champaran 2. Chandrama Devi D/o Gujeshwar W/o Kailash Thakur village – Tenua, P.S.Pipra, P.O. Tenua, District East Champaran 3. Munna Pandey S/o Jagarnath Pandey minor Sri Bachcha Bihari Pandey, Advocate, Guardian appointed by the court 4. Naresh Pandey S/o Basdeo Pandey 5. Umesh Pandey S/o Basdeo Pandey resident of village Belwa, P.O.and P.S. Adapur, District East Champaran 6. Brajesh Pandey S/o Basdeo Pandy, minor Sri Bachcha Bihari Pandey, Advocate, appointed by the court under the guardianship of his father and natural guardian Basudeo Pandey 7. Beer Pandey S/o Malik Pandey 8. Basdeo Pandey S/o Malik Pandey 9. Ram Narain Pandey S/o Sheodhari Pandey 10. Rajednra Pandey S/o Sitaram Pandey 11. Shambhu Pandey S/o Rajendra Pandey 12. Kamlesh Pandey S/o Rajednra Pandey Respondent nos. 7 to 12 are resident of village Belwa, Tappa Bahas, P.G.Majhaua P.O.and P.S. Adapur, District East Champaran 13. Satrughan Pandey S/o Rajednra Pandey, resident of village Belwa, Tappa Bahas, P.G.Majhaua P.O.and P.S. Adapur, District East Champaran 14. Manju Kumari Devi D/o Ram Narain Pandey W/o Chandra Bhushan Singh, resident of village Bara Shankar, P.S. Patahi, P.O. Bara Shankar District East Champaran 15. Jai Prakash Singh, S/o Basdeo Singh 16. Om Prakash Singh 2 17. Prem Prakash Singh Sons of Ramdeo Singh resident of village and P.O. Bariariya, P.S. Sangrampur, District East Champaran 18. Banaras Rai, S/o Rajroop Rai 19. Arun Singh 20. Bipin Bihari Singh 21. Sanjay Kumar Singh 22. Manish Singh minor sons of Banaras Rai Resident of village , P.O. and P.S. Kotwa, District East Champaran ..(Defendants ) Respondent Ist Party .. Respondent Ist Party 23. Amod Pandey S/o Bishwanath Pandey, resident of village Belwa, Tapa Bahas, P.G.Majhowa P.O.and P.S. Adapur, District East Champaran … Plaintiff no. 3 .. Respondent 2nd Party … Respondents ----------- For the appellants : M/s S.P. Srivastava and Rajeev Ranjan, Advocates ------- 5 09.08.2010 Heard learned counsel for the appellants. No one appears on behalf of the respondent nos. 7 and 8 despite vakalatnama having been filed on their behalf. Plaintiffs – appellants are aggrieved by the judgment and the decree dated 14.9.2006 passed by the 1st Additional District Judge, Motihari in Title Appeal No. 17 / 03 of 1996/97 dismissing the appeal and affirming the judgment and decree dated 15.2.1996 passed by the Sub Judge, IV, Motihari, East Champaran in Partition Suit No. 78/70 of 1984/1991. 3 The plaintiffs filed Partition Suit No. 78/70 of 1984/1991 for carving out their 1/6th share in the suit property described in schedule - 1 of the plaint. The case as set by the plaintiffs in brief is that the family was having some khatiyani lands and that apart there were some lands, which were acquired subsequently by settlement and purchased by one or other members of the family. Plaintiffs themselves have put forward story of separation of three branches, i.e., the branch of Kawaldhari Pandey, Sheodhari Pandey and Sitaram Pandey, who were sons of another ancestor Arjun Pandey, in the year 1970. However, even thereafter, though the parties started cultivating some lands separately but rest lands remained in joint cultivation and crops were being divided between the parties. It has further been alleged that those lands were either acquired by the settlement or purchased by the income of the joint family fund by the ancestors of the parties in the state of jointness. Those lands are still in joint possession of the parties since there has not been any partition by metes and bounds. Thus, the plaintiffs claimed 1/6th share in the suit property 4 described in schedule of the plaint. The suit was filed as plaintiffs’ request to the defendants to carve out their legitimate share was refused. The different sets of defendants filed their written statements. The defendant nos. 5,6,8, 9 and 10 belonging to the branch of Kawaldhari Pandey refuted the allegation as set out in the plaint and submitted that the purchased properties appertaining to certain plots for e.g. plot nos. 778, 791, 843, 841 and 785 are self acquired property of these defendants, which were acquired after separation between three branches of Kawaldhari Pandey, Sheodhari Pandey and Sitaram Pandey, which took place in 1950 itself. Thus, as has been set out in the pleadings of the respective parties, the separation has been admitted. However, plaintiffs claim is that the separation took place in 1970, whereas the defendants claim is that the separation took place in 1950 itself. However, no case for partition by metes and bounds has been set out by the parties as it appears from the perusal of the judgments of the courts below. The trial court, on appreciation of materials 5 on record, believed the story of separation of joint family as set up by the contesting defendants in the year 1950 and further held that the properties, which have been acquired in the name of the persons belonging to the branch of Kawaldhari Pandey could not be proved by the plaintiffs to have been acquired by the joint family funds. It has further been held that the properties have been purchased by them after separation in the year 1950. After the appreciation of evidence led on behalf of the parties, it has further been held that the lands acquired through several sale deeds after the year 1950 were purchased by the defendants out of their self earning derived from their separate business and cultivation. However, with regard to the khatiyani lands, the courts below have held that since there was no partition in the family by metes and bounds, there is the unity of title and possession between the parties. Thus, it has been, held that the plaintiffs are entitled for partition of khatiyani lands and also the lands acquired by settlement by ancestors of the parties except those lands which had been self acquired lands of the branch 6 of Kawaldhari Pandey. Thus, the suit was decreed in part. The judgment and decree was challenged by filing Title Appeal No. 17 / 03 of 1996/97. The appellate court formulated two points for determination in the appeal : (I) Whether separation took place between the parties in the year 1950 or in the year 1970 ? (II) Whether the purchased and settled land of the parties are joint family property which needs to be partitioned by metes and bound? On appreciation of materials available on record the appellate court has also held that separation took place in the year 1950 and subsequent the acquisitions made by the branch of Kawalddhari Padney were self acquired property and, thus, the plaintiffs cannot claim partition thereof and, thus, had held that the trial court has rightly decreed the suit in part accepting the plaintiffs’ claim of partition of the khatiyani lands and other settled lands, which were acquired by the ancestors of the parties. Learned counsel appearing for the appellant tried to impress upon this Court that on certain plots 7 specially plot nos. 778 and 785 the house of the plaintiffs is standing though the land was purchased by the family in the name of Ramjee Pandey belonging to the branch of Kawaldhari Pandey. The plaintiff no. 1, who had been examined as P.W. 9, in his deposition has set up this claim. However, learned counsel for the appellants could not show from the plaint that this was the pleading of the plaintiffs. The trial court while considering the deposition of P.W. 9 has noticed that the plaintiff has accepted regarding certain plots having been purchased by the defendants out of their own income. The decisions of the courts below are concluded by concurrent finding of facts. Learned counsel for the appellants could not point out any substantial error which has been committed by the courts below. Thus, I do not find any merit in this appeal. As a result this appeal is dismissed. Spd/- ( Dr. Ravi Ranjan, J.)