IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.128 of 2008 Buchali Singh @ Rajeshwar Singh adopted son of Munshi Singh and natrual son of late Bulkai Singh resident of Village Babuganj PO and P.S. Tilauthu Dist. Rohtas Defendant no.4- Appellant- Appellant Versus 1. Sanju Devi w/o Sri Mukhdeo Singh resident of Village Ranjitganj P.S. Rohtas Dist. Rohtas 2. Phuljharo Devi w/o Awadhesh Singh resident of Village Padluka P.S. Tilauthu Dist. Rohtas At present resident of Village Babuganj P.S. Tilauthu Dist. Rohtas Plaintiffs-Respondents-Respondents Ist set 3. Mahesh Singh 4. Dinesh Singh 5. Akhilesh Singh 6. Mithilesh Singh All sons of late Tulsi Singh Defendants 2nd set-Respondents Ist set-Respondents 7. Parano Devi w/o Sheosagar Singh resident of Village Ranjeetganj P.S. Amjhore Dist. Rohtas 8. Harbagnsh Singh son of late Jugul Singh Defendants 3rd set-Respondents 2nd set-Respondents 9. Basant Singh 10. Pradeep Singh 11. Ashok Singh All sons of late Pachu Singh Defendants 4th set-Respondents 3rd set-Respondents 12. Chhathu Singh son of late Antu Singh 13. Shekhar Singh 14. Chandeo Singh 15. Prakash Singh 16. Pappu All sons of Chhathu Singh All resident of Village Babuganj PO and P.S. Tilauthu Dist. Rohtas Defendants 5th set-Respondents 4th set-Respondents 17. Ramjee Singh 18. Baleshwar Singh 19. Kedar Singh 20. Sumar Singh All sons oflatge Bulaki Singh resident of Village Babuganj PO and P.S. Tilauthu Dist. Rohtas Defendants Ist set- Appellants-Respondents ----------------------- For the appellant: Mrs Shashi Bala Verma, Advocate Mr Akhauri Vipin Bihari Shrivastava, Advocate ------------------- 06/ 01.02.2010 Heard learned counsel for the appellant. 2. This second appeal has been filed by defendant no.4- - 2 - appellant-appellant challenging the judgments and decree of both the learned courts below. 3. The matter arises out of Title Suit no.449 of 1998 which was filed by the plaintiffs-respondents-respondents Ist set for partition of their 1/6th share in the suit property by metes and bounds and for other ancillary reliefs. The said suit was decreed on contest by the learned Subordinate Judge IV, Rothas vide his judgment and decree dated 23.09.2006. 4. Against the aforesaid judgment and decree of the learned trial court, defendant no.4 along with some other defendants filed Title Appeal no.100 of 2006 which was dismissed by the learned Additional District Judge-cum- Fast Track Court no. II, Rohtas, vide his judgment and decree dated 13.03.2008. Against the aforesaid judgments and decree of the learned courts below, the instant second appeal has been filed by defendant no.4 only. 5. Learned counsel appearing for the appellant vehemently challenges the judgments and decree of both the learned courts below claiming that both the learned courts below had wrongly decided the question of previous partition, the question of adoption of the appellants by the father of respondents Ist set and the question of will executed by father of respondents Ist set in favour of appellants. 6. So far the question of previous partition is concerned, the learned courts below have very carefully considered the pleadings and evidence of the parties and have come to the specific conclusion that since the plaintiffs had claimed that there was no - 3 - previous partition whereas defendants had claimed that there was a previous partition, the onus was squarely upon the defendants to prove any previous partition but they failed to prove their pleadings of previous partition among the sons of Antu Singh. The learned courts below found that Antu Singh had admittedly left behind six sons including Munshi Singh (father of the plaintiffs) and Bulaki Singh (father of defendant no.4) but the status of the family remained as joint Hindu family and there was unity of title and possession between all the heirs of the deceased Antu Singh, namely the parties to the suit. This is a concurrent finding of facts and this Court does not find any reason to interfere with the same as it is in accordance with law of the pleadings in evidence of the parties. 7. So far the question of adoption of defendant no.4 by Munshi Singh is concerned, the same was very carefully considered by the learned courts below and had found that the necessary requirements for adoption as provided under Article 488 of the Hindu Law had not been pleaded and proved and as per their claim adoption had taken place at the time of Panditji, Guru, Prohit and Thakur who were the best person to establish the fact of adoption but these persons had not been examined by defendant no.4 and as such plea of adoption raised by defendant no.4 had completely failed. This is also a concurrent finding of fact of both the learned courts below. 8. So far the question of will is concerned, it was also fully considered by the learned courts below which found that although said Munshi Singh as claimed by defendant no.4 died in the year 1988 - 4 - but admittedly it had not yet been probated under the provision of law and hence on the basis of unprobated will question of title of defendant no.4 can not be allowed. Furthermore admittedly Antu Singh had left behind six sons including Munshi Singh whereafter Munshi Singh had left behind two daughters, namely, the plaintiffs and they were fully entitled to get their 1/6th share partitioned as neither previous partition nor adoption of defendant no.4 was proved nor even the alleged will was probated. 9. In the aforesaid facts and 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. (S.N.Hussain,J) shahid