IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.315 of 2004 DEVI THAKUR Versus BIKARMA THAKUR & ORS ----------- 06/ 17.07.2008 Heard learned counsel for the appellant. This second appeal arises out of Title Suit No. 213 of 1994, which was filed by plaintiff-respondents for partition of their moiety share in the suit property detailed in Schedule-I of the plaint and for other ancillary reliefs. The said suit was decreed by learned Munsif-IV, Chapra by judgment and decree dated 26.02.1998, which was challenged by the defendant-appellant in Title Appeal No.22 of 1998( 17/2002), which was dismissed by the learned 9th Additional District Judge, Saran at Chapra by his judgment and decree dated 31.07.2004. The said judgments and decree of the learned courts below have been challenged by defendant-appellant in the instant second appeal. Learned court below has framed two main issues, namely, (i) whether plaintiff no.3 was legally wedded wife of Deo Kumar Thakur and plaintiffs no.1 and 2 were his legitimate sons and (ii) whether the defendant succeeded in proving the case of ouster of the plaintiffs since life time of Deo Kumar Thakur and to have perfected their title by adverse possession. On the said issues, there are specific findings that the plaintiffs had been able to prove that Bhagmatiya Devi was the legally wedded wife of Deo Kumar Thakur and plaintiffs no.1 and 2 were his legitimate sons and the marriage was according to Hindu rituals. It - 2 - was also held that since the defendant had challenged legitimacy of the marriage of plaintiff no.3 with Deo Kumar Thakur and the legitimacy of their children (plaintiffs no.1 and 2), the onus to prove his claim was exclusively on the defendant but he miserably failed to prove the same by valid evidence. The learned courts below have also specifically found that the defendant had utterly failed in proving ouster of Deo Kumar Thakur or the plaintiffs from the suit property and his adverse possession against them. Hence, it was held that there was unity of title and unity of possession between the plaintiffs and the defendant over the suit property and the plaintiffs were, thus, entitled to moiety share in the suit property. In the aforesaid facts and circumstances, the impugned judgments and decree of the learned courts below are covered by findings of fact based on materials on record, which do not require any interference. Furthermore, this Court does not find any substantial question of law involved in the instant second appeal, which is, accordingly, dismissed. MPS/ ( S. N. Hussain, J. )