IN THE HIGH COURT OF JUDICATURE AT PATNA S.A. No.176 of 2008 ---- Smt. Koushila devi, widow of Late Mishri Yadav, Resident of Village-Bhargama, Police Station-Bhargama, District- Arariaya. -- Plaintiff-Appellant-Appellant. Versus 1. Sri Anant Prasad, son of Babu Jadunandan Prasad, Resident of Village- Bhargama, Police Station-Bhargama, District-Arariaya. 2. Subha Chandra Yadav, son of Hakendra Yadav 3. Bhagwat Yadav, son of Chintu Yadav Both resident of Village Bhargama, Police Station-Bhargama, District-Arariya. -- Defendants-Respondents-Respondents 1st Set. 4. Smt. Manjila Devi 5. Most. Mita Devi. 6. Most. Shakti Devi All 4 to 6 are daughters of Mishri Yadav, Village- Bhargama, Police Station-Bhargama, District-Arariya. 7. Bhola Yadav, son of Late Mahadev Yadav, Resident of village Bhargama, Police Station-Bhargama, District-Arariya. -- Plaintiffs-Appellants-Respondents 2nd Set. ----- For the appellant : Mr. Chaudhary Shyam Nandan with Mr. Mukesh Kumar Rana, Advocates. For the respondents : None. ---- 07. 06.10.2009 Heard learned counsel for the appellant. 2. This second appeal has been filed by the plaintiff- appellant-appellant challenging the judgments and decree of both the learned courts below. 3. The matter arises out of Title Suit No.231 of 1988 which was filed by the plaintiffs, namely husband of the appellant and respondents no.4 to 7, for declaration that the sale deed dated 09.03.1977 alleged to have been executed by the plaintiffs in favour - 2 - of the defendant was pure and simple usufructary mortgage deed which has been redeemed by the lapse of seven years and for other ancillary reliefs. 4. The said suit was contested by the defendants- respondents-respondents 1st Set whereafter following issues were framed:- (i) Whether the suit is maintainable? (ii) Whether the suit is barred by any law? (iii) Whether the plaintiffs have any cause of action? (iv) Whether the sale deed dated 09.03.1977 is legal or is illegal and sham in place of Sood Verna? (v) Whether the defendants have got the suit land for Rs.2,000.00 by way of Sood Verna or it is coming in the peaceful possession of the plaintiffs? (vi) Whether the defendant in place of Sood Verna has got executed a sale deed dated 09.03.1977 and got it by way of fraud? (vii) Whether the suit land is in possession of the plaintiffs? (viii) Whether the plaintiffs are entitled to any other relief? 5. On the basis of the aforesaid issues, evidence were led by the parties and arguments were made, considering which the learned Subordinate Judge-III, Araria dismissed the suit on contest vide its judgment and decree dated 29.06.2004. 6. Against the aforesaid judgment and decree of the trial court, the plaintiff-appellant filed Title Appeal No.28 of 2004 and after considering the pleadings and evidence of the parties, the learned Additional District Judge-cum- Fast Track Court No.IV, Araria dismissed the title appeal vide its judgment and decree dated 11.03.2008. The said judgments and decree of the learned courts below are under challenge in the instant second appeal. - 3 - 7. The learned courts below have fully considered all the evidence, both oral and documentary, adduced on behalf of the plaintiffs and have discussed them in paragraphs 6,7,8 and 9 of its judgment, whereafter it had come to the specific conclusion that the payment of consideration amount was not denied and hence the impugned sale deed which was Ext.-A remained unchallenged in absence of any equally unimpeachable evidence to prove anything otherwise. It was also found by the learned courts below that the plaintiffs miserably failed to prove their claim with respect to sale deed, whereas the defendants fully proved the legality of the said deed and were also able to show that the said deed of sale was throughout acted upon. Hence the learned courts below rightly held that the onus of proving the sale deed to be sham and illegal was squarely on the plaintiffs, but they miserably failed to show that any fiduciary relationship subsisted between the parties with regard to any contract or mortgage etc. 8. In the said circumstances, this court does not find any illegality in the impugned judgments and decree of the learned 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. Sunil (S. N. Hussain, J.)