IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.279 of 2002 RAMCHABILA BHAGAT Versus RAM PRAVESH BHAGAT ----------- 1 6 08.09.2008 Heard learned counsel for the parties. 2. This second appeal has been filed by the sole defendant-appellant-appellant challenging the judgments and decree of both the learned courts below. 3. The matter arises out of Title Suit no.148 of 1987 which was filed by the sole plaintiff-respondent-respondent for declaration that the sale deed dated 4.1.1985 was legal, valid and binding creating right, title, interest and possession in favour of the plaintiff with respect to the suit land and also for permanent injunction against the defendant and alternatively, if the plaintiff is found dispossessed during the pendency of the suit, a decree of recovery of possession may be passed with cost as well as for other ancillary reliefs. 4. The said Title suit was decreed on contest with cost by the learned Munsif, Chapra by judgment and decree dated 23.09.1998 which was challenged by the defendant-appellant in Title Appeal no.10 of 1999 ( 17 of 2000). The learned 9th Addl. District Judge, Saran at Chapra dismissed the said title appeal on contest with cost by judgment and decree dated 23.09.2002. The said judgments and decree of the learned courts below are under challenge in the instant second appeal. 5. After considering the averments of the parties and 2 the materials on record including the judgments of the learned courts below it is quite apparent that the learned court of appeal below has considered the entire matter in detail and has found that from khatiyan itself it is evident that both the co-sharers Inder and Ramdhari had partitioned their land proportionate to their approximate share by metes and bound and hence there was no occasion for any presumption of their jointness. Accordingly, it was also held that partition had already taken place prior to the revisional survey except one item of the property that is plot no. 1369 having an area one katha 12 dhurs which was also partioned in due course between co-sharers and hence there was no substance in the plea that the partition took place about 40 years before the filing of written statement. 6. From the evidence on record the learned courts below have clearly found that there had been a gift by Munni Lal in favour of Sheokalia and her son Kameshwar with respect to the suit land in the share and possession of his father as sown in the revisional survey khatiyan and the defendant had himself admitted the said gift in his evidence and hence his challenge to the gift was not legal and valid. Accordingly the learned courts below rightly came to the concurrent conclusion that the plaintiff was entitled to the decree as claimed, as he had quite validly acquired the suit land on the basis of exhibit 2 and had been rightly mutated by the Circle Officer in respect of the suit land and Register II had also been rightly prepared, but the learned D.C.L.R. had wrongly up-set the said order of mutation etc. 7. The law is well settled that merely on the basis of 3 issuance of a few rent receipts fate of the case can not be decided specially in view of other evidence. The learned court of appeal below has also considered document and after considering in detail it came to the conclusion that those exhibits were of no consequence to rebut the presumption with regard to the revisional survey khatiyan 8. Learned counsel for the appellant has raised another question that the suit and the appeal including instant second appeal has abated under the provision of the Consolidation of Holdings and Prevention of fragmentation Act as the Consolidation operation had not become final although it was stayed during 1993-2004 but again Consolidation proceeding had started. This plea can not be held to be sustainable in the instant case because the matter involved declaration with respect to the validity of a deed of transfer which can not be looked into by the Consolidation authority. Further more relief of injunction is also prayed for in the suit out of which second appeal arises and such a plea can also not be considered by the Consolidation authority. In the said circumstance, the suit for the reliefs which are not under the purview of the Consolidation authority can be very well filed even during he pendency of the Consolidation proceeding. In the said circumstance, this Court does not find any force in the said submission of learned counsel for the appellant. 9. In the aforesaid facts and circumstances, there is no illegality in the impugned judgments and decree of the learned courts below, nor any substantial question of law is involved in the instant second appeal, which is accordingly dismissed, at this stage of hearing 4 under Order XLI Rule 11 of the Code of Civil Procedure. shahid (S.N.Hussain, J)