IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.220 of 2006 1. Ram Dahin Prasad 2. Deen Dayal Prasad 3. Kamleshwar Mahto All sons of Sita Mahto. All residents of village-Itwan Jalalpur, P.S. Haspura, District- Aurangabad ….Defendants-Respondents-Appellants. V e r s u s Chhatia Devi wife of Ram Mahto, resident of village-Itwan Jalalpur, P.S. Haspura, District-Aurangabad. …Plaintiff-Appellant-Respondent. For the appellants : Mr. Yogendra Pd. Sinha No.1, Advocate. For the respondent : M/s Sheel Bhadra Jha and Ashok Kumar, Advocates. ----------- 04/ 07.01.2009 Heard learned counsel for the parties. This second appeal has been filed by defendants-respondents- appellants challenging the judgment and decree of the learned court of appeal below. The matter arises out of Title Suit No.01 of 2001, which was filed by the sole plaintiff-appellant-respondent for declaration that the sale deed dated 26.06.1970 executed by Smt. Butania Devi (defendant no. 4) in favour of defendant nos. 1 to 3 was sham, showy, void and inoperative and defendant no.4 had no right, title or interest in the suit land and defendant nos. 1 to 3 did not get any right, title or interest in the suit properties on the basis of sale deed. The said suit was dismissed on contest with cost by the learned Munsif, Aurangabad, vide judgment and decree dated 31.07.2003. Against the said judgment and decree of the trial court the plaintiff filed Title Appeal No. 25 of 2003 (83/05), which was 2 allowed by the learned Additional District Judge-cum-Fast Track Court No. II, Aurangabad, who set aside the judgment and decree of the learned trial court and decreed the suit on contest with cost vide his judgment and decree dated 11.09.2006.The aforesaid judgment and decree of the learned court of appeal below has been challenged by the defendants in the instant second appeal. It is an admitted fact that the suit properties belonged to Pitamber, who left behind two sons as his heirs and legal representatives, namely Doman and Laldhari who had equal half share in the suit property. The claim of the defendants was that there was a partition between Doman and Laldhari whereafter Doman died in the year 1970 leaving behind a widow Butania (defendant no.4) who sold the half of partitioned share of the land in question in favour of defendant nos. 1 to 3. On the other hand, the claim of the plaintiff was that there was no partition between Doman and Laldhari and after death of Doman in the year 1970, Laldhari inherited his half share as he died unmarried and issueless and that Butania was not the wife of Doman and hence she had no right to transfer the said land to defendant nos. 1 to 3, who acquired no right and title on the basis of the said alleged transfer. It is also claimed by the plaintiff that in the said circumstances he purchased the entire suit land from Laldhari who had full right, title and possession over the suit property. It is not in dispute that Doman predeceased Laldhari in the year 1970. Hence even if there was a partition between two brothers 3 prior to the death of Doman, the entire share of Doman would go to Laldhari if Doman was unmarried and issueless. Hence, admittedly Doman being issueless, the entire crux of the matter was whether Butania was the wife of Doman. So far the question regarding Butania being the wife of Doman is concerned, the defendants could not produce any document. So far the oral evidence of defendants in that regard is concerned, DW.1 although supported the defendants’ claim but he could not name the alleged widow of Doman, whereas DW.2, who was a co-villager, did not give any date of the alleged marriage. So far DW.3 is concerned, his statement has been analyzed by the learned court of appeal below and according to calculations of his statements the marriage of Doman with Butania took place in the year 1972, although Doman had admittedly died in the year 1970. DW.4 was very important witness being the brother of Butania but he also did not give any date or year of marriage and stated that Barat of Doman did not go to Basantpur and only Doman came to the temple where marriage was performed and subsequently he changed his statement stating that the marriage was performed at his door. DW.5 also stated about the marriage of Butania with Doman but on calculation of his statements by the learned court of appeal below it was found that according to him the marriage had taken place in the year 1968-69. In view of the aforesaid contradictory statements and furthermore in view of the absolutely unreliable and vague evidence of DW.4 who was none else than the brother of Butania the learned 4 court of appeal below rightly came to the finding that Butania was never married to Doman and hence she had no right, title or interest in the suit property and she was also not entitled to transfer the same to defendant nos.1 to 3. The learned court of appeal below arrived at the correct conclusion that Doman having died unmarried and issueless, his share also devolved upon Laldhari, who had full right, title and interest in the suit property and transferred the same to the plaintiff. In 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. harish/ ( S.N.Hussain, J.)