IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.126 of 2002 Satya Narayan Sharma S/o Sri Kishun Sharma Resident of Village Bagora P.S. Duraundha Dist. Siwan at present resident of Mohalla Daniyawan Tole P.S. Chapra Town Dist. Saran Defendant no.1- Appellant- Appellant Versus 1. Ram Nath Prasad s/o Shambhu Sah @ Bachhu Sah 2. Smt. Savitri Devi w/o Shambhu Sah @ Bachhu Sah resident of village Pargana Kasmar P.S. Dighwara Dist. Saran at present resident of Mohalla Daniyawan Tole P.S. Chapra Town Dist. Saran Plaintiffs – Respondents-Respondents 3. Srinandan Pushstakalaya through Secretary, Sri Nandan Pustakalaya, Mohalla Daniyawan Tole P.S. Chapra Town Dist. Saran 4. Sri Kameshwar Dixit, Secretary, Sri Nandan Pustakalaya, Mohalla Daniyawan Tole P.S. Chapra Town Dist. Saran 5. Surya Narayan Vishwakarma s/o Ram Lagan Prasad resident of Manpur Prg. Kasmar P.S. Dighwara Dist. Saran at present resident of Mohalla Daniyawan Chapra P.S. Chapra Town Dist. Saran 6. Sukesiya Devi @Manju Kumari D/o late Ram Sakal Sharma 7. Mostt. Deopati Devi w/o late Ram Sakal Sharam 8. Tripati Sharma s/o late Ram Sakal Sharma 9. Kedar Sharma s/o late Ram Sakal Sharma resident of village Manpur Prg. Kasmar P.S. Dighwara Dist. Saran at present resident of Mohalla Daniyawan P.S. Chapra Town Dist. Saran 10. Most. Jalandhar 11. Prakash Kumar 12. Subhash Kumar 13. Vikash Kumar s/o Awdhesh Mishra All of Mohalla Salempur P.S. Chapra Town Dist. Saran 14. Deo Nandan Singh s/o Muneshwa Singh village Dohar P.S. Rasulpur Chapra Defendants – Respondents-Respondents ----------------------- For the appellant: Mr Radha Mohan Sharma, Advocate ------------------- 20/ 04.03.2010 Heard learned counsel for the sole-appellant. 2. This second appeal has been filed by defendant no.1- appellant-appellant challenging the judgments and decree of both the learned courts below. 3. The matter arises out of Title Suit no.109 of 2 1981(25/1990) which was filed by the plaintiffs-respondent nos.1 and 2 for declaration of their title over Schedule III property of the plaint on the basis of sale deeds and alternatively for partition of 5/6th share out of 1/3rd share in Schedule I property and for other ancillary reliefs. The said suit was decreed on contest against defendant no.1 (appellant) by the learned Subordinate Judge V, Chapra vide his judgment and decree dated 12.04.1991. 4. Against the aforesaid judgment and preliminary decree of the learned trial court, defendant no.1- appellant filed Title Appeal no.67 of 1992 which was dismissed by the learned Additional District Judge VI, Saran, vide his judgment and decree dated 04.03.2002. This second appeal has been filed against the aforesaid judgments and preliminary decree of the learned courts below. 5. It further transpires that in the title suit final decree was also prepared by the learned trial court on 30.06.1995 as per the preliminary decree which was challenged by said defendant no.1 in Title Appeal no. 61 of 1995 which was also dismissed by the learned court of appeal below by the same common judgment dated 04.03.2002. The said judgment and decree of the learned court of appeal below with regard to Title Appeal no. 61 of 1995 was challenged by defendant no.1-appellant in Second Appeal no. 159 of 2002, but the same had been dismissed for default in the year 2005. 6. Learned counsel for defendant no.1-appellant vehemently challenges the judgment and preliminary decree of the learned courts below but the facts remain admitted that the suit property was self- acquired property of Ram Lagan Sharma son of Gokul Barhi who had purchased the same by a sale deed dated 11.01.1902. It is also not in dispute that Ram Lagan 3 Sharma had three sons Sheo Prasad, Ram Sakal Sharma and Suraj Narayan. But the claim of defendant no.1- appellant was that Sheo Prasad was the son from the first wife of Ram Lagan Sharma and in the year 1934 Ram Lagan Sharma gave the suit property to Sheo Prasad who died in the year 1969 leaving behind widow Jaleshwari Devi and a daughter where after the said Jaleshwari Devi gifted the entire suit property by gift deed dated 31.10.1980 to defendant no.1-appellant who was the husband of her daughter. Hence, he submits that other sons of Ram Lagan Sharma from his second wife or their successor-in-interest had no right or title over the suit property. Whereas on the other hand, the claim of the plaintiffs-respondents is that there was a partition between Ram Lagan Sharma in 1975 in which Sheo Prasad got 1/3rd share where after the wife and four sons of Suraj Narayan transferred their share to the plaintiffs-respondents by registered deed dated 02.08.1980. 7. Both the learned courts below very carefully considered the pleadings and evidence of the parties and decided their respective claims. It is quite apparent that admittedly Ram Lagan Sharma had three sons , Sheo Prasad, Ram Sakal Sharma, Suraj Narayan and there is no material evidence to show that he gave the suit property exclusively to Sheo Prasad. Mere municipal record and rent receipts can not prove any such transfer in absence of any valid material specially when there was sufficient material to support the claim of the plaintiffs who had specifically claimed that all the three sons of Ram Lagan Sharma mutually partitioned the entire suit property and each of them got 1/3rd share and hence Suraj Narayan, his widow and his four sons were entitled to 1/3rd share which they got in partition. The findings of partition between three brothers are findings of facts after consideration of the 4 pleadings and evidence of the parties. In the said circumstances, the transfer of 5/6th share out of 1/3rd property given to the branch of Suraj Narayan was rightfully transferred by the wife and the sons of Suraj Narayan who was defendant-respondent but did not object to the said claim. On the other hand, Sheo Prasad having got only l/3rd share in the said partition, his widow Jaleshwari Devi was not entitled to transfer the entire suit property to defendant no.1-appellant who was nonelse than her son-in-law. 8. The learned courts below very carefully considered the entire matter in detail and came to the exclusive findings that the plaintiffs had unity of title and possession over the suit land and they were entitled to 5/6th share out of 1/3rd partitioned share of Suraj Narayan. 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)