IN THE HIGH COURT OF JUDICATURE AT PATNA S.A. No.180 of 2002 1. Surendra Kumar @ Surendra Kumar Sah, S/o Late Dasrath Sao 2. Mostt. Shiromani Devi, W/o Late Dasrath Sao both residents of Mohalla-Mungeriganj, Ward No.9, Begusarai, District- Begusarai Plaintiffs-Appellants-Appellants. Versus 1. Nagendra Mandal. 2. Rajendra Mandal. 3. Om Prakash Mandal. 4. Sheo Prakash Mandal. 5. Sanjay Mandal All sons of Late Narayan Mandal. 6. Asha Kumari, D/o Late Narayan Mandal. 7. Subhadra Devi, W/o Late Narayan Mandal Both residents of Mouza Mokimpur, Begusarai, Ward No. 9, P.S. and District-Begusarai. 8. Saraswati Devi, W/o Lakhanlal Mandal deceased, resident of Mohalla-Keshopur, P.O. Jamalpur, District-Munger. 9. Umesh Mandal, S/o Late Lakhan Mandal. 10. Kalawati Devi, W/o Late Lakhanlal Mandal Both residents of Mohalla-Keshopur, P.O. & P.S. Jamalpur, District-Munger. 11. Renu @ Ranu Kumari, W/o Jogindra Sahu, resident of Mouza-Abjuganj, P.S. Sultanganj, District-Bhagalpur at present Ward No. 9, Begusarai Defendants Ist Party-Respondents Ist Party- Respondents Ist Party The name of respondent nos. 12, 14, 18 and 26 are being expunged vide order no. 7 dated 22.03.2004. 13. Rajendra Sao. 15. Kali Devi, W/o Biseshwar Sah deceased. 16. Siboo Sah, S/o Ragh Bihari Sao deceased All residents of Begusarai Laheria Dharamshala, P.S. & District-Begusarai. Name of the respondent no. 17 expunged vide order no. 9 dated 24.01.2005. 19. Baiju Sao. 20. Kailash Sao. 21. Rajesh Sao. 22. Sambhoo Sao All minor sons of Siya Ram Sao under the guardianship of their father and natural guardian Siya Ram Sao. 23. Surendra Sao. 24. Shankar Sao 2 Both residents of Mukhi Gaddi No. 1, Supaul P.O. and P.S. Supaul, District-Saharsa, now Supaul. 25. Pinmtoo Sao minor son of Surendra Sao under guardianship of Surendra Sao, village and P.O. Forbesganj, District- Purnea. The name of respondent no. 26 expunged vide order no. 7 dated 22.03.2004. Defendants 2md Party-Respondents 2nd Party- Respondents 2nd Party. 27. Lakhan Devo Sao, S/o Babu Kumar Sao, resident of Begusarai, P.O., P.S. and District-Begusarai Defendant 3rd Party-Respondent 3rd Party- Respondent 3rd Party. 28. Bishwanath Rai, S/o Nandlal Rai deceased, resident of Mohalla-Mungeriganj, P.O., P.S. and District-Begusarai. Defendant 4th Parrty-Respondent 4th Party- Respondent 4th Party. 29. Bipin Rai, S/o Chhoti Rai, resident of Begusarai Ward No. 9, P.S. and District-Begusarai Defendant 5th Party-Respondent 5th Party- Respondent 5th Party. ----------- For the appellants: - Mr. Dhruv Narain, Sr. Advocate. Mr. Manoj Kumar Sinha, Advocate. For the Respondents: - Mr. V. Nath. Mr. Radha Mohan Pandey. Mr. Ashok Kumar. ------------ 15/ 20-04-2009 Heard learned counsel for the parties. This Second Appeal has been filed by the plaintiffs-appellants-appellants challenging the judgments and decree of both the learned courts below. The matter arises out of Title Suit No. 38 of 1986 which was filed by the plaintiffs-appellants for declaration of their title over the land detailed in schedule 5 and 6 of the plaint and also for recovery of possession against defendant Ist party and for other ancillary reliefs. The aforesaid Title Suit was dismissed on 3 contest by the learned Subordinate Judge-V, Begusarai vide his judgment and decree dated 9.9.1997. Against the aforesaid judgments and decree of the trial court the plaintiff filed Title Appeal No. 17 of 1997 which was also dismissed on contest by the learned Additional District Judge, VI, Begusarai vide his judgment and decree dated 11.01.2002. From the arguments as well as from the materials on record including the impugned judgments and decree of the learned Courts below it is quite apparent that the learned Courts below very carefully considered the pleadings and evidence of the parties and thereafter came to specific findings that none of the parties have rightly put before the Court the actual line of partition between the three sons of Jagan Sah and both of them had filed separate suits for removal of alleged encroachment of the other. It was also held that without ascertaining the line of division between the parties it is impossible to say as to whether any encroachment had been made or not. It was also found by the learned Courts below that plaintiff no. 2 herself deposed as P.W. 10 in the suit that she can file proof of partition between the three sons of Jagan Sah but the plaintiffs failed to produce any such material leaving the court in dark. It was also found by the learned Courts below that in such a case the parties to the suit have to prove beyond all reasonable doubts with regard to the 4 demarcating line of partition between the co-sharers on the basis of any partition by metes and bounds and without assigning the said partition the question of encroachment cannot be ascertained. It was also held that none of the parties could establish by any evidence any partition by metes and bounds between the sons of Jagan Sah as mere possession according to convenience cannot legally be substituted to partition by metes and bounds. Thus, the learned Courts below were quite justified in rejecting the claim of the plaintiff who completely failed to prove by any reliable evidence the basic requirements in such case. In the said 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 case which is accordingly dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. S.Sb/- (S.N. Hussain, J.)