IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.67 of 2006 Daroga Sah @ Kodai Sah, s/0 Late Jhingur Sah, Resident of Dhoboulia P.O.Kundia, P.S. Chakia. Anchal Sikrahna, District East Champaran. --Defendant-Respondent-Appellant versis Raghunath Sah, s/o Late Ram Awatar Sah, r/o village Dhubaulia, P.O. Kuria, P.S. Chakia, District East Champaran. --Plaintiff-Appellant-Respondent. ----------- For the Appellant : Mr. Ratan Kumar, Advocate. For the Respondent: Mr. Dhananjay Kumar No.2,Advocate ---------- 07/ 22.01.2009 Heard learned counsel for the appellant. 2. This second appeal has been filed by the sole defendant- respondent-appellant challenging the judgment and decree of the learned court of appeal below. 3. The matter arises out of Title Suit No. 92 of 1993, which was filed by the sole plaintiff-appellant-respondent for declaration of title and also for recovery of possession with respect to the suit land and for other ancillary reliefs. The said suit was dismissed by the learned Munsif, Sikrahna at Motihari by his judgment and decree dated 06.06.1997 although it was found that even after due service of notice the defendant had not appeared. 4. Against the aforesaid judgment and decree of the trial court, the plaintiff filed Title Appeal No. 39 of 1997 (29/2004), in which also notices were sent to the defendant and the learned 4th Additional District Judge, Motihari, after finding that the defendant had not appeared inspite of valid service of notice, allowed the said title appeal vide his judgment and decree dated 30.07.2005. The said judgment and decree of the learned court of - 2 - appeal below is under challenge in the instant second appeal. 5. It is not in dispute that Manwa Devi was the original owner. But the plaintiff claimed that he purchased the suit property from the said Manwa Devi by a registered sale-deed dated 28.05.1940 (Ext.2). and, thereafter, he came in possession of the suit property, whereas, the claim of the defendant is that he purchased the suit property by oral sale of 1934 from the said Manwa Devi for a consideration of Rs.30/- and, thereafter, constructed a house over the same and is living therein. However, the defendant got a proceeding under section 145 of the Code of Criminal Procedure initiated, namely, Case No.1555M/1989 against the plaintiff as second party to the said proceeding and both the parties filed their written statements and produced evidence and after considering the same fully, the Executive Magistrate decided the case in favour of the plaintiff declaring his possession vide order dated 08.12.1992 ( Ext.3). 6. The learned court of appeal below not only considered the aforesaid facts and circumstances but also considered that the plaintiff had filed rent receipt asserting creation of Jamabandi in his name after his said purchase by registered document, which was on record of the case, but said record as per the order of the District Magistrate was burnt and the rent receipt, which was tagged with the record, was also burnt and hence the plaintiff in support of his contention filed certified copy of the application (Chirkut No. 227 dated 17.03.2004), which shows that the record had been destroyed. Although the appellant of this second appeal submits that the said document was taken out by the plaintiff before burning of the record and the plaintiff has intentionally not produced the same before the appellate court, - 3 - but this fact is not supported by any valid material. 7. Furthermore, the learned court of appeal below considered the plaintiff’s witnesses, namely, P.W.2, P.W.3 and P.W.5, who fully supported the possession of the plaintiff prior to the dispossession of the defendant after the order of the Executive Magistrate dated 08.12.1992. The learned court of appeal below also found that inspite of valid service of notice, the defendant, who was respondent in the title appeal, did not appear and hence there was nothing on the record to disbelieve the case of the plaintiff supported by evidence by which the plaintiff has succeeded in proving his title over the suit land and his dispossession also and hence claim and suit of the plaint6iff was fit to be decreed . 8. Although, this second appeal has been filed about three years ago by the defendant, who did not appear in either of the courts below, but no evidence is sought to be brought on record on his behalf even before this Court. Hence there is nothing on record to disbelieve the specific findings of the learned court of appeal below. 9. In view of the aforesaid facts and circumstances, this Court does not find any illegality in the impugned judgment and decree of the learned 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. MPS/ ( S. N. Hussain, J. )