IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.328 of 2004 Smt Krishna Devi w/o Sri Shib Chandra Prasad Mohalla Sipahi tola (Shastri Nagar) P.S. K. Hat Dist. Purnea Plaintiff - Appellant- Appellant Versus 1. Lalit Mohan Prasad s/o Late Jageshwar Prasad Verma , Tax Inspector, At P.S. and District Samatipur presently ITO ward no.2, 6h floor, Central Revenue Building Patna-1 2. Nilam Devi wife of Alok Kumar Verma, Jahaji Kothi At P.S. and Dist. Patna-3, residing in the house of Sri Gyan Chand Prasad, Advocate, Kadamkuan, Patna-800003 3. Sushila Devi w/o Harishankar Prasad At Siran Chowk, P.S. Balia Bazar, Dist Begusarai presently residing at Balia Bazar PS Lakhminia Behind Nai Durga Asthan, Dist. Begusarai 4. Gita Devi w/o Arun Kumar Sinha of Majhali Bazar PS and Dist. Begusarai at present Malhar 76, Tenar Road, Sakchi, Jamshedpur 831001 5. Sachida Nand Prasad s/o late Kamaldeo Narayan of Mohalla Madhubani (Shastri Nagar) P.S. K. Hat Dist. Purnea Defendants - Respondents-Respondents ----------------------- For the appellant: Mr Rajendra Kishore Prasad, Advocate Mrs Rekha Prasad, Advocate For the respondents: Mr Vidya Sagar, Advocate Mr Samara Kumar Ranjan, Advocate ------------------- 13/ 11.02.2010 Heard learned counsel for the appellant and learned counsel for the respondents. 2. This second appeal has been filed by sole plaintiff- appellant-appellant challenging the judgments and decree of both the learned courts below. 3. The matter arises out of Title Suit no.31 of 1988 which was filed by the plaintiff- appellant for declaration that lot no.1 of Schedule A was allotted in her exclusive share in oral partition of 1982 and alternatively for partition of his 1/5th share in the entire suit properties and other ancillary reliefs. The said suit was decreed in part on contest by the learned Munsif, Purnea vide his judgment and decree dated 20.12.2001. 4. Against the aforesaid judgment and decree of the learned - 2 - trial court, plaintiff-appellant filed Title Appeal no.03 of 2002 which was dismissed on contest by the learned Additional District Judge II, Purnea, vide his judgment and decree dated 31.07.2004. Against the aforesaid judgments and decree of the learned courts below, the instant second appeal has been filed. 5. Although learned counsel for the appellant vehemently challenges the judgments and decree of the learned courts below but admitted fact is that the sole plaintiff and defendant nos. 1 to 4 were children of Yugeshwar Prasad Verma and Ram Dulari Devi who died in the years 1987 and 1982 respectively leaving behind one son (defendant no.1) and four daughters (plaintiff and defendant nos. 2 to 4) and according to the plaintiff all of them had 1/5th share in suit land detailed in lot no.1 and lot no.2 of schedule of the plaint. 6. So far lot no.1 is concerned, it admittedly measured seven kathas, out of which five kathas were purchased lands of the plaintiff detailed in schedule B of the plaint and the plaintiff is claiming it to be her exclusive land on the basis of the said purchase. The remaining two kathas of the said land is the purchased land of defendant no.5 and there are concurrent findings of the learned courts below that the said sale deed is legal and on that basis, defendant no.5 is coming in exclusive possession as absolute owner thereof. In the said circumstances there was no occasion for partition of the land of lot no.1 of schedule A of the plaint. 7. So far lot no.2 of schedule A is concerned , it measureed about five kathas one dhur and it belonged to the joint family, none of its portion having been sold either by the parties or their predecessor and hence - 3 - the learned courts below were quite justified in decreeing the suit for partition only with respect to lot no.2 giving 1/5th share to each of the co-sharers including the plaintiff. 8. Although learned counsel for the appellant relies upon amended provisions of Hindu Succession Act, 2005 but none of the provision of the said Act is applicable to the facts and circumstances of the case specially when the plaintiff who is daughter is given a share equal to the share received by her brothers-defendants. 9. In the aforesaid 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 second appeal, which is accordingly dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. shahid (S.N.Hussain, J)