IN THE HIGH COURT OF JUDICATURE AT PATNA S.A. No.278 of 2008 1. Mustafa Kamal alias Rajan Mian son of Late Nayamat Mian 2(a). Md. Rashid Ali 2(b). Md. Naushad Ali 2(c). Md. Hamid Ali 2(d). Md. Shahid Ali 2(e). Ishrat Tabassum 2(f). Saheeda Tarannum 2(g). Shabana Tarannum 2(h). Farida Tarannum sons and daughters of Bibi Zubeda Khatoon, residents of Mohalla Gaiwal Bigha, P.S.- Police Line, P.O. and District Gaya. ………….Defendants-Respondents-Appellants. Versus 1. Bibi Asma Khatoon wife of A.Sattar and daughter of Late Md. Habib Khan, resident of Mohalla Rahmat Nagar Road No.4, P.S. Buranpore, District Bardwan. 2. Bibi Fatma Khatoon wife of Md. Qamruddin daughter of Md. Habib Khan, deceased, resident of Mohalla Andar Killa, Tekari, P.S. Tekari, District Gaya. 3. Mumtaz Ahmad son of Md.Habib Khan deceased, resident of Mohalla Gaiwal Bigha, P.S. Civil Lines, District Gaya, at present residing at Mohalla Rahman Nagar Road No.4, P.S. Buranpore, District Burdwan. ……….Plaintiffs-Appellants-Respondents. 4. Akhtar Hussain 5. Sakil Ahmad, both sons of Anwar Ahmad, residents of Mohalla Gaiwal Bigha, P.S. Civil Lines, District & Town Gaya. …..Defendants-Respondents-Respondents. For the appellants : Mr.Md. Raghib Ahsan, Sr. Advocate with M/s Saba Ashfaque and Ataul Haque, Advocates. For respondent nos.1, 2 & 3 : M/s Abbas Haider and Syed Hussain Majeed, Advocates. 07/ 30.03.2010 Heard learned counsel for the defendants-appellants and learned counsel for plaintiffs-respondent nos.1 to 3. 2. This second appeal has been filed by defendants- 2 respondents-appellants challenging the judgment and decree of the court of appeal below. 3. The matter arises out of Partition Suit No.64 of 1998 (11/2006) filed by respondents no.1 to 3 with respect to the suit properties which was dismissed on contest by Subordinate Judge-VI, Gaya vide his judgment and decree dated 27.02.2007. 4. Against the aforesaid judgment and decree of the trial court plaintiffs filed Partition Appeal No.21 of 2007 (23/2007) which was allowed by the Additional District Judge- cum-Fast Track Court No.I, Gaya vide his judgment and decree dated 30.07.2008, setting aside the judgment and decree of the trial court and decreeing the plaintiffs’ claim of partition directing that a preliminary decree be prepared. Against the aforesaid judgment and decree of the court of appeal below the instant second appeal has been filed. 5. Learned counsel for the appellants vehemently challenges the judgment and decree of the court of appeal below on three grounds, namely (i) that the court of appeal below has passed its judgment and decree without referring to much less considering the evidence either oral or documentary adduced on behalf of the defendants, (ii) that the plaintiffs had not complied the direction of the Supreme Court, as they deposited Rs.20,000.00 in the name of defendant no.1 only, although it should have been deposited in favour of defendant nos.1 and 2 both and (iii) that the court of appeal below without coming to 3 any finding with respect to unity of title and possession between the parties had decreed the suit for partition. 6. So far the first question is concerned, the defendants had adduced five witnesses including defendant no.1 himself who deposed as DW.2 and had also filed nine documents as Ext.A to Ext.I, which included the plaint and orders passed in Partition Suit No.64 of 1998 as well as applications etc. along with various orders passed in Execution Case No.02 of 1976. However, from a reading of the judgment of the court of appeal below it transpires that all the said evidences and the circumstances in which the applications were filed and orders were passed, had been fully considered by the court of appeal below while deciding point no.(i) in paragraph-10 of the judgment, and merely the numbers of exhibits have not been mentioned. Furthermore, the court of appeal below has also considered the deposition of defendant no.1 in which it was admitted that the portion which he had purchased in the name of his wife was not partitioned. 7. The court of appeal below had specifically found that the Supreme Court vide order dated 23.10.1996 passed in Civil Appeal No.13179 of 1996 had set aside the auction sale held in the year 1976 in the execution case with respect to petitioners’ (plaintiffs) share of 11 annas 04 pies in the suit house, subject to the condition that the petitioners (plaintiffs) deposit a sum of Rs.20,000.00 in the trial court within six months and on such deposit being made, the court below shall set aside the said sale 4 and the said sum of Rs.20,000.00 shall be paid to the respondents, who are defendants in the instant case, in full satisfaction of their claim for costs, purchase money and the alleged improvements and additions made to the house and on such deposit the respondents (defendants in the instant case) shall have no other claim against the petitioners’ (plaintiffs) share of 11 annas 04 pies in the suit house. In the said circumstances the court of appeal below was quite justified in holding that the share of the plaintiffs in the suit holding in question of 11 annas 04 pies share cannot be re-agitated by the defendants and looked into again as well as decided. 8. So far the second question raised by the appellants with regard to deposit of Rs.20,000.00 in the name of defendant no.1 only and not in the name of both defendant nos.1 and 2 is concerned, it is quite apparent that defendant nos.1 and 2 are husband and wife and the said money was deposited by the plaintiffs in accordance with the order of the Supreme Court. Furthermore, on the basis of the aforesaid decision of the Apex Court dated 23.10.1996 and also on the basis of the aforesaid deposit in compliance thereof Execution Case No.02 of 1976 along with Misc.Case No.11 of 1983 were disposed of by the Executing Court vide its order dated 07.05.1997 and the same has never been challenged. Hence the defendants cannot legally raise any grievance with respect thereto afresh. 9. So far the third question raised by the appellants 5 with respect to absence of any finding of the court of appeal below regarding unity of title and possession is concerned, since the matter has already been decided by the Supreme Court by its aforesaid decision, the lower appellate court had merely to reiterate the same. Accordingly, it had been rightly held by the lower appellate court that in view of the aforesaid decision of the Apex Court no court is entitled or has jurisdiction to again consider the same matter regarding the share of the plaintiffs in the suit holding and plaintiffs’ share of 11 annas 04 pies decided by the Supreme Court cannot legally be re-agitated, looked into again and decided. 10. In the aforesaid facts and circumstances, this court does not find any illegality in the impugned judgment and decree of the court of appeal 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. harish/ ( S. N. Hussain, J. )