IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.429 of 2010 Md. Geyasuddin & Anr. Versus Md. Muslim & Ors. ----------- 06. 29.11.2011 Heard Mr.Shivnandan Rai, the learned senior counsel appearing on behalf of the appellants. 1. The plaintiffs, are the appellants in this appeal against the judgments of affirmance dismissing their suit for declaration of title and recovery of possession. There is no dispute that the suit property originally belonged to two brothers namely Sk. Gopal and Sk. Rahman Ali. The plaintiffs who are from the branch of Sk.Rahman have claimed the suit property on the basis of partition asserting that they had been allotted the suit property. The defendants who are purchasers by registered sale deed of the year 1953 from the another brother Sk. Gopal have resisted the claim of the plaintiff. Both the courts below, after considering the evidence and the rival submissions of the parties, have concurrently held that the plaintiffs have failed to establish their case of earlier partition and allotment of the suit property in their share. It has been also held that the defendants who are purchasers of the year 1953 from another cosharer have been coming in possession independently in their own right after the purchase. Both the 2 courts below have found the suit to be barred by limitation as well as bad for non-joinder of necessary parties. 2. The learned senior counsel appearing on behalf of the appellants has submitted that the Ext.2 which is a Panchanama (arbitration award) dated 02.12.2002 has not been considered by the appellate court below and the said non- consideration has prejudicially affected the case of the plaintiffs. It has been urged that the said Panchanama is only a memorandum of partition whereby the plaintiffs have been allotted half share in the suit land and it sustains the case of the plaintiffs as pleaded. 3. From the perusal of the judgments of both the courts below and after considering the submissions of the learned counsel, it appears that the trial court has considered in detail the facets of Ext. 2 and has concluded that the said document is not fit to be relied upon. The appellate court has also taken note of the said document besides other evidence and has not found the same to support the case of the plaintiff. However, the learned senior counsel has fairly conceded that in the plaint, no averment has been made regarding this Panchayti (arbitration) and preparation of this Panchnama (Ext.2). In this view of the matter, obviously this document 3 (Ext.2) would not be admissible in evidence in absence of necessary pleadings. Further both the courts below have also found the suit to be barred by limitation and not maintainable for want of necessary parties. The issues between the parties arising in the suit have been concluded by concurrent finding of facts. 4. There is no substantial question of law arising for consideration in this second appeal, which is, accordingly, dismissed. Nitesh ( V. Nath, J.)