IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.74 of 2008 ------ Ramesh Mahto son of Late Jagdeo Mahto, resident of Village-Dewapur Tola Mohar Singh, Pargana-Sipah, P.O. and P.S.-Manjhagarh, District- Gopalganj. Defendant-appelant-appellant. Versus 1. Shankar Mahto son of Late Lalchand Mahto. 2. Mostt. Hazaro Kunwar wife of Late Fagu Mahto. 3. Hirdya Mahto son of Late Fagu Mahto. Plaintiffs-Respondents-Respondents Ist Set. 4. Madan Singh son of Late Dharichhan Singh. Plaintiff-Defendant- Respondent IInd Set. All are residents of Village-Diwapur Tola Mohar Singh, Pargana- Sipah, P.O. and P.S.- Manjhagarh, District-Gopalganj. ----------- For the appellant : M/s Shanti Kumar & Ajit Lal, Advocates For the respondents : M/s Rajendra Narain & Sanjay Kumar Srivastava, Advocates. 08. 16.01.2009 I.A.No.3355 of 2008 has been filed on 23.05.2008 on behalf of the appellant for substituting the heirs of respondent no.4 Madan Singh, who is said to have died on 27.02.2008 leaving behind a widow, three sons and three daughters, all majors, as his heirs and legal representatives fully detailed in paragraph 6 of the interlocutory application. This application is well within the statutory period of limitation and is, accordingly, allowed. Let the said heirs be substituted in place of respondent no.4. 2. Heard learned counsel for both the parties in the appeal. 3. This second appeal has been filed by the defendant- appellant-appellant challenging the judgments and decree of both the learned courts below. 4. The matter arises out of Title Suit No.97 of 2003 which was filed by the plaintiffs-respondents-respondents Ist Set for declaring their - 2 - title over the suit land and also for declaration that the sale deed dated 24.05.2002 executed by defendant no.2 in favour of defendant no.1 was illegal and void and also for recovery of possession with respect to the suit land. 5. The said suit was decreed in part on contest by the learned Subordinate Judge Ist, Gopalganj by judgment and decree dated 19.04.2005. 6. Against the aforesaid judgment and decree of the trial court, the defendants filed Title Appeal No.54 of 2005 (21/07) which was dismissed on contest with cost by the learned Ist Additional District Judge, Gopalganj, by his judgment and decree dated 15.12.2007. Both the aforesaid judgments and decree of the learned courts below are under challenge in the instant second appeal. 7. There were four main issues in the suit, out of which issue no.VI was with regard to validity of the sale deed executed by defendant no.2 in favour of defendant no.1, whereas issue nos. IV and V were with respect to the partition and title of the property in question and issue no.VII was with respect to recovery of possession. 8. So far issue no.VI is concerned, the learned trial court decided the said issue in favour the defendants holding that the sale deed executed by defendant no.2 in favour of defendant no.1, was legal and valid. The said finding was not challenged by the plaintiffs who did not file any appeal against that finding. The said finding was also not challenged by the defendants in their title appeal as the said finding was in their favour. - 3 - 9. So far issue nos. IV and V are concerned, both the learned courts below after due consideration of the evidence on record came to definite finding that the suit property was earlier joint property and there was partition between the parties by which the northern half was given to the plaintiffs, whereas the southern half was given to the defendants and adjacent east to both the portions there was a road. Both the learned courts below rejected the claim of the defendants that in the partition the eastern portion of the property adjacent to the road was given to the defendant whereas the western portion which was not connected by the road was given to the plaintiffs. 10. So far issue no.VII with regard to recovery of possession is concerned it was specifically found that since it has already been held that the northern portion was given to the plaintiffs in partition, the possession of the defendants in the said northern portion was illegal and, therefore, the plaintiffs were justified in claiming recovery of possession of the said portion. 11. The said findings of the learned courts below were based on findings of facts. This court does not find any illegality in the same, nor does it find any substantial question of law involved in the instant second appeal. Accordingly, this second appeal is dismissed. Sunil (S. N. Hussain, J.)