IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.596 of 2010 Smt. Archana Devi & Anr. Versus Ram Naresh Prasad ---------------------------------- 8 5-12-2011 Heard Mr.Dhrub Narain, learned senior counsel for the appellants and learned counsel appearing on behalf of the respondent. The suit was filed by the plaintiff for declaration of his title and for recovery of possession over the suit land. The admitted position is that Plot no.19987, which is the plot in dispute, has a total area of 13 decimals and out of this the two co- sharers, namely, Chhote Lal Bhaiya and Kishun Lal Bhaiya have got 6 ½ decimals each. The plaintiff has purchased the suit land from Chhote Lal Bhaiya by a registered sale deed dated 26-7-2002 and the defendants have purchased their land from the purchasers from Kishun Lal Bhaiya by a registered sale deed dated 22-7- 2002.The plaintiff has asserted that the defendants started disturbing his possession over the suit land on the basis of his purchase which led to the filing of the suit. The trial court as well as the appellate court both have come to the finding that the other co-sharer i.e., Kishun Lal Bhaiya has sold the land in excess of his share which has caused the dispute. It has also been found by both the courts that another co-sharer(vendor of the plaintiff) has rightly sold the suit land to the plaintiff from his share of 6 ½ decimals of land allotted to him. The learned senior counsel appearing on behalf of the appellants has strongly submitted that the findings of fact 2 recorded by both the courts below have been arrived at by misappreciation of evidence. It has been further urged that in view of sections 31 and 34 of the Specific Relief Act, the suit was liable to be dismissed, but by giving a wrong interpretation to the provisions the same has been decreed. By taking this Court through the findings of both the courts below, the learned senior counsel has tried to emphasis that the evidence of the parties have not been properly considered and errors have been committed by both the courts below in that regard. Thus, it has been submitted that substantial question of law arises for consideration in this appeal. After perusing the judgments of both the courts below, it appears that a specific finding has been recorded that the vendor of the plaintiff Chhote Lal Bhaiya had not sold the entire 6 ½ decimals of his share prior to the sale to the plaintiff. Further, on appreciation of documentary evidence on record both the courts below have reached to a concurrent conlusion that Kishun Lal Bhaiya, another co-sharer had sold the land in excess of his share. The courts have also drawn adverse inference against the defendants for non-examination of Kishun Lal Bhaiya or Ashok Kumar Mishra, who are the original co -sharer- title holder and the transferee thereof respectively. The appellate court has rightly come to the conclusion that those two persons were the best persons to elicit the factum of partition, allotment of share as well as the transfer by them. The defendants have annexed the sketch map with their written statement to show the location and position 3 of their purchased land and after considering the said sketch map along with other evidence on record, the finding has been reached by both the courts below that the defendants cannot have claim over the suit land as purchased by the plaintiff. It appears that all the disputes between the parties have been settled by the concurrent findings of fact by both the courts below. The appellate court has considered the provisions of section 31 and 34 of the Specific Relief Act as well as the issue of non-joinder of parties and has rightly reached to the conclusion that the suit is not bad due to aforesaid reasons. There appears to be no misappreciation of evidence by the courts below rather all the evidence on record have been meticulously considered. For the foregoing reasons there does not arise any substantial question of law for consideration in this appeal. This appeal is, accordingly, dismissed. roy ( V. Nath, J.)