IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.211 of 2009 HARI NANDAN MAHTO SON OF RAM NATH MAHTO (DECEASED), RESIDENT OF VILLAGE- AHIRAULIA TOLA SINGHPUR, BIPTA, P.O. & P.S.- RAMGARHWA, DISTRICT-EAST CHAMPARAN…. …PLAINTIFF-APPELLANT-APPELLANT. Versus 1. RAJ NARAIN SHUKLA, 2. BIPIN BIHARI SHUKLA, 3. REWATI RAMAN SHUKLA, 4. BISHENDRA SHUKLA, ALL SONS OF BISHUN PD. SHUKLA, 5. RAMA SHANKAR SHUKLA SON OF SHEO NANDAN SHUKLA ALL RESIDENTS OF VILLAGE-AHIRAWLIA, P.O. & P.S.-RAMGARHWA, DISTRICT-EAST CHAMPARAN…. ..DEFENDANTS-RESPONDENTS-RESPONDENTS. FOR APPELLANT : M/S SHRI PRAKASH SRIVASTAVA & RAJEEV RANJAN, ADVOATES. ----------- 04 09.11.2010 Heard learned counsel for the appellant. This appeal has been preferred against the judgment and decree dated 20.02.2009 passed in Title Appeal No.58/1 of 1995/2006 by the Additional District Judge, Fast Track Court No. IV, Mothiari, whereby the appeal has been dismissed and a judgment and decree dated 12.09.1995 passed by the Munsif, Raxual at Mothiari in Title Suit No.215/139 of 1990/1994 dismissing the suit has been affirmed. The plaintiff has filed the aforesaid title suit 2 for declaration of his right and interest in his favour with regard to the suit land measuring 3½ dhurs as described in the plaint. The plaintiff claims that the suit land stands recorded in the name of Dhorha Nonia, Sukhi Nonia, Rozi Nonia and Raghubar Nonia appertaining to Khata No.681 Plot No.4373 for 11 dhurs, however, branch of Dhora Nonia and others got 5½ dhurs each towards east and towards west. It is further claimed by the plaintiff that at the time of partition, Rozy Nonia did not take share in the aforesaid plot, as he had shifted to West Bengal, hence, 5½ dhurs of land came entirely in possession of Dhora Nonia and his son, namely, Himachal Mahto had sold 3½ dhurs of land out of the same in favour of the plaintiff vide registered sale deed dated 20.07.1978 and also delivered the possession of the same. The name of the plaintiff was mutated, however, subsequently on 29.07.1990 the defendants, who are also owning their land in the vicinity of the suit land, had dispossessed the plaintiff-appellant. The defendants contested the suit by filing written statement and set up a story of their purchase of the suit land and also denied that plaintiff-appellant had 3 been dispossessed, rather it has been claimed that plaintiff never came in possession over the same. Altogether, eight issues were framed by the trial court and the suit had been dismissed after recording the findings that the plaintiff could not prove the factum of oral partition and Dhorha Nonia having come in possession of 5½ dhurs of land and as also that the plaintiff came in possession of the suit land. The judgment and decree of the trial court was challenged by preferring Tiltle Appeal No.58/1 of 1995/2006. The lower appellate court framed four points for determination of the controversy and recorded its findings that the plaintiff could not prove that Dhorha Nonia was allotted the suit land in partition and also that the sale deed executed by Himachal Mahto in favour of the plaintiff-appellant could not be acted upon as no possession of the suit land was ever delivered to him. The lower appellate court has further recorded its finding that the defendants had not dispossessed the plaintiff- appellant on 29.07.1990 or any other day, thus, the plaintiff-appellant is also not entitled for any mesne profit. Accordingly, the appeal stood dismissed. 4 I have heard learned counsel for the appellant. Learned counsel for the appellant submitted that both the courts below have not considered the evidence in its proper perspective. It was specifically pointed out that Ext. 2, the sale deed dated 20.07.1978, has not been considered by the courts below and the rent receipts, issued by the State of Bihar in favour of the plaintiff, which are the proof of possession of the plaintiff, i.e. Ext.1, series have also not been considered by the courts below. I do not find any substance in the submission raised on behalf of the appellant. The trial court as well as the lower appellate court both have considered Ext.2 and recorded its respective findings upon it. After appreciation of the materials available on record, the lower appellate court has recorded a finding that Ext.2, the sale deed executed by Himachal Mahto in favour of the plaintiff-appellant, was not acted upon and no possession of the suit land was delivered by the aforesaid Himachal Mahto in favour of the plaintiff- appellant. Similarly, Ext.1 series, i.e. rent receipts, have 5 also been considered and discarded on the ground that the same do not bear any description of the plot, i.e. either khata number or plot number. In above view of the matter, the learned counsel for the appellant could not point out any substantial error committed by the courts below which may lead to any substantial question of law. As a result, this appeal fails and, is, accordingly, dismissed. SC/Sanjay-II ( Dr. Ravi Ranjan, J.)